Eugene Volokh's Blog, page 2670
November 16, 2011
The Hunger Games Movie Trailer
The full-length trailer for the Hunger Games movie is now available here. In a post earlier this year, I wrote about why Suzanne Collins' popular science fiction series might well make an even better movie than book.
If the trailer is any indication (perhaps a dangerous assumption), the movie will not disappoint my expectations. The producers have done a good job of capturing the look and feel of Collins' dystopian fictional world. And Jennifer Lawrence seems believable in the key role of the main character, Katniss Everdeen. Unfortunately, the trailer also incorporates one of the weaknesses of Collins' world-building (which I noted as a problem in my earlier post). As in the book, the population of District 12 seems far too small to mine all the coal needed to provide energy to a society as advanced as the oppressive Capitol seems to be (note that the District 12 miners are forced to use fairly primitive mining methods, even though the book is set in the distant future). That said, it looks to be a very good movie.
CONFLICT OF INTEREST WATCH: Actually, there isn't any conflict of interest. Sadly, the studio isn't paying us a cent for all the valuable publicity their movie is getting on the Volokh Conspiracy. However, we would welcome any contribution they might care to make to the blogger bailout fund.
UPDATE: The original version of this post mistakenly referred to actress Jennifer Lawrence as "Amy Lawrence." I apologize for the mistake, which has now been corrected.
Peter Wallison on Proposed Systemic Risk Regulations
I acknowledge from the comments that many readers were less impressed than I was with Peter Wallison's criticism of the concept of "systemic risk" that I posted a couple of weeks back (although I didn't see anything then or since that has led me to question Peter's conclusion that the problem was not interconnectedness but common shock, as Peter argues). For those who are interested in reading more, Peter has a new analysis of the FSOC's proposed regulations on systemic risk, both describing the new proposals and revisiting his prior critique.
Justice Stevens on Kelo
In a recent Wall Street Journal interview, retired Justice John Paul Stevens defended his controversial majority opinion in Kelo v. City of New London, which ruled that it was permissible for government to condemn private property for transfer to private parties in order to promote "economic development." The Court ruled that this was a permissible "public use" under the Fifth Amendment. Stevens was particularly critical of Justice Sandra Day O'Connor's dissenting opinion, which he claims contradicted her earlier opinion in Hawaii Housing Authority v. Midkiff
Stevens' critique of O'Connor is not entirely without merit. In Midkiff, O'Connor wrote a majority opinion concluding that pretty much any rationale for a taking qualifies as a public use so long as it is "rationally related to a conceivable public purpose." In Kelo, O'Connor dismissed this as merely "errant language." But as Ben Barros has shown, it was actually deliberately inserted in the Midkiff opinion (O'Connor refused to take it out even after Justice Lewis Powell warned her that it would license virtually unconstrained takings).
That said, Stevens is wrong to suggest that the Court's only options were either to overrule Midkiff and Berman v. Parker, or uphold the Kelo takings. Justice O'Connor's dissent draws a perfectly reasonable distinction beween takings that eliminate some preexisting harm (severe blight in Berman, a supposed oligopoly in the property market in Midkiff), versus those that just seek to create some future public benefit. In the former case, there may be less danger that a taking that transfers property to a private party is just a scheme to benefit the new owner, since the public objective can be achieved simply by terminating the previous harmful use of the land. Many state supreme courts have adopted a similar approach under their state constitutions, permitting private-to-private takings for the purpose of eliminating severe blight, but forbidding them in most other situations.
It is not unusual for the Supreme Court to significantly narrow the scope of a precedent without completely overruling it. For example, the Supreme Court's recent decisions in the Guantanamo cases narrow but do not overrule World War II-era precedents such as Korematsu and Quirin, which apply broad deference to the executive on wartime military decisions. Stevens voted with the majority in all those cases. Justice Stevens himself is the author of the Court's decision in Gonzales v. Raich, which severely undercut its previous decisions in Lopez and Morrison, but did not overrule them completely. Like Justice Clarence Thomas, I wish the Court had overruled Berman and Midkiff completely. But I can understand why Justice O'Connor (along with Scalia and Chief Justice Rehnquist), preferred a more cautious approach.
It's also worth noting that Stevens' Kelo opinion misinterprets precedent at least as much as O'Connor's did. For example, Stevens claimed that his position was supported by "a century" of precedent. But, as I explained in this article (pp. 240–44), all but the two most recent of those cases did not involve the Public Use Clause of the Fifth Amendment. They addressed challenges to takings brought under the Due Process Clause of the Fourteenth Amendment. Stevens also draws a distinction between takings that are part of a redevelopment plan and stand-alone "one-to-one" takings, claiming that broad judicial deference to the government is particularly appropriate in the former scenario, because the planning process protects property owners against abusive condemnations. However, as I explain here (pp. 228–29), the California district course he cites as a paradigmatic example of a "one-to-one" taking actually involved a redevelopment plan. This last mistake is more than just a minor technical error. Getting it right might have helped Stevens and the other majority justices understand that nearly all economic development takings occur in the context of redevelopment plans, and that the existence of a plan provides little or no protection against the use of eminent domain for the benefit of private interests. Influential interest groups routinely use the planning process to their advantage, as the Pfizer Corporation did in Kelo itself. Recognizing this might not have changed Stevens' mind; but only one of the five majority justices would have had switch his or her vote for the case to have gone the other way.
Justice Stevens' retrospective on Kelo is an interesting counterpoint to those of Justice Scalia and Connecticut Supreme Court Justice Richard Palmer. He makes some reasonable criticisms of the dissenting justices' treatment of precedent. Perhaps in the future he will be equally forthcoming about his own similar mistakes.
UPDATE: As commenter "Steve" points out, I was wrong to suggest in my article that the Court did not mention the Public Use Clause of the Fifth Amendment in the 1896 case of Fallbrook Irrigation Dist. v. Bradley. The Court did mention it, but only to point out that it did not apply to the states:
There is no specific prohibition in the federal constitution which acts upon the states in regard to their taking private property for any but a public use. The fifth amendment, which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government, as has many times been decided.
I am sorry I made this mistake, and grateful to the commenter for pointing it out. But getting it right would have actually strengthened my point.
As I noted in the article linked in my original post, the late nineteenth and early 20th century Supreme Court did consider challenges to state takings under the Due Process Clause of the Fourteenth Amendment. But it did so under a much more deferential standard of review than in the rare cases where it recognized that the Fifth Amendment does apply because the taking in question was conducted by the federal government.
Felons and Voting
Some people have asked whether court decisions recognizing that some felons have a constitutional right to bear arms — if their felonies are long enough in the past — would also extend to felons' having a constitutional right to vote. I think the answer is "no," because there's a specific constitutional authorization for denying felons the right to vote. The Fourteenth Amendment expressly contemplates the constitutionality of such a restriction, in section 2 (emphasis added):
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Given that it is section 1 of the Fourteenth Amendment that has been read as generally securing a constitutional right to vote, I think that right has to be read in light of the restrictions that section 2 says are tolerable. And that is precisely what the Court held in Richardson v. Ramirez (1974) (some paragraph breaks added):
Despite this settled historical and judicial understanding of the Fourteenth Amendment's effect on state laws disenfranchising convicted felons, respondents argue that our recent decisions invalidating other state-imposed restrictions on the franchise as violative of the Equal Protection Clause require us to invalidate the disenfranchisement of felons as well. They rely on such cases as Dunn v. Blumstein, 405 U. S. 330 (1972), Bullock v. Carter, 405 U. S. 134 (1972), Kramer v. Union Free School District, 395 U. S. 621 (1969), and Cipriano v. City of Houma, 395 U. S. 701 (1969), to support the conclusions of the Supreme Court of California that a State must show a "compelling state interest" to justify exclusion of ex-felons from the franchise and that California has not done so here.
As we have seen, however, the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment's applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court....
[We] rest on the demonstrably sound proposition that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement. Nor can we accept respondents' argument that because § 2 was made part of the Amendment "'largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment,'" we must not look to it for guidance in interpreting § 1. It is as much a part of the Amendment as any of the other sections, and how it became a part of the Amendment is less important than what it says and what it means.
Pressed upon us by the respondents, and by amici curiae, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California's present constitutional provisions.
But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.
Some readers might ask whether section 2's implicit endorsement of the constitutionality of requirements that voters be "male" and "twenty-one years of age" would similarly render constitutional restrictions on voting by women and by 18-to-20-year-olds. The answer, I think, is surely yes — which is why it took the Nineteenth Amendment and the Twenty-Sixth Amendment to specifically forbid such voting restrictions.
Felons and the Right to Bear Arms [UPDATE: Added Information on Another Such Case Decided by the Same Panel]
Yesterday's Baysden v. State (N.C. Ct. App. Nov. 15, 2011) (2–1) holds that North Carolina's ban on possession of guns by a felon violates the North Carolina Constitution's right to bear arms provision as to someone with two over-30-year-old nonviolent felony convictions. This follows Britt v. State (N.C. 2009), which held the same on similar facts; a North Carolina trial court decision from last month, Johnston v. State, held the same under the Second Amendment, and People v. Dewitt (Colo. Ct. App. 2011) seemed to secure an even broader right — sometimes applicable even to criminals whose convictions are more recent — under the Colorado Constitution.
Many other recent decisions have upheld bans on felon gun possession, either categorically (citing language to this effect in Heller) or as applied to people whose convictions were relatively recent (noting that Heller only said that bans on felon gun possession were "presumptively lawful," and that this presumption might be rebuttable in a proper case). But the North Carolina cases, coupled with the Colorado case, suggest that as-applied challenges brought by people with very old felony convictions might indeed succeed, at least in some courts, and especially if they are brought under state constitutional provisions as well as the Second Amendment. And if a court concludes that the state constitution mandates the restoration of a felon's gun rights under state law, that should also lift the federal ban on gun possession by that felon, see 18 U.S.C. § 921(20).
For a recent New York Times article arguing that some states might be making it too easy for felons to regain gun rights, see here; but my quick skim of the piece suggests that the objections are mostly to restoration of gun rights for people whose felonies are relatively recent, rather than about 30 years old or more, as in the North Carolina cases.
UPDATE: I just saw State v. Yuckel (N.C. Ct. App. Nov. 15, 2001), decided on the same day as Baysden, in which the same three-judge panel applies the same principles to reach a different result on different facts (some paragraph breaks added):
Defendant was convicted of the non-violent offense of felony larceny in 1998. Although Defendant's prior felony larceny conviction stemmed from an event that occurred approximately ten years before the incident that resulted in his conviction in the present case, the record also indicates that, since being convicted of felonious larceny, Defendant was convicted of driving while subject to an impairing substance in 2001. As a result, unlike Mr. Britt and like Mr. Whitaker, Defendant has not been able to remain free of further entanglements with the criminal law for an extended period of time.
In addition, the present record, unlike that before the Supreme Court in Britt, indicates that Defendant has not possessed firearms in a responsible and lawful manner. Although Defendant argues that he has an overall history of responsible and law-abiding behavior, including attending to the needs of his disabled wife, the facts disclosed in the present record demonstrate that he acted in a completely irresponsible manner on the occasion that led to the conviction at issue in this case. More specifically, Defendant spent the evening consuming alcohol before wrestling with his wife and a houseguest over a handgun in a house in which a child was present. After the handgun discharged during the struggle, Defendant, with an alcoholic beverage in hand, took the handgun to a neighbor and asked him to hide the weapon.
Although Defendant ultimately admitted having possessed the handgun when investigating officers confronted him with the weapon, he initially denied that a handgun had been discharged in his home. As a result of the fact that this handgun was kept under a pillow on his bed, it was readily accessible to others. Thus, rather than having had a history of lawful and responsible firearms possession, the record shows that Defendant engaged in reckless and irresponsible behavior relating to the firearm he unlawfully possessed on the date of the incident that led to his conviction for violating N.C. Gen.Stat. § 14–415.1.
Finally, Defendant failed to "assiduously and proactively" comply with the 2004 amendments to the Felony Firearms Act, which preclude convicted felons from possessing firearms at any location and under any set of circumstances. Unlike Mr. Britt, who consulted with his local sheriff after the enactment of the 2004 legislation and divested himself of all firearms in order to remain in compliance with the relevant statutory provisions, Britt, 363 N.C. at 548, 681 S.E.2d at 322, Defendant continued to possess a handgun after it became unlawful for him to do so and raised his constitutional challenge to N.C. Gen.Stat. § 14–415.1 only after having been charged with criminally possessing a firearm. Thus, Defendant's reaction to the enactment of the 2004 amendments to the Felony Firearms Act has been very different from Mr. Britt's "assiduous and proactive" compliance with N.C. Gen.Stat. § 14–415.1.
Thus, after conducting the required constitutional analysis, we conclude that N.C. Gen.Stat. § 14–415.1, as applied to Defendant, "is a reasonable regulation which is 'fairly related to the preservation of public peace and safety.'" Whitaker, 201 N.C.App. at 206, 689 S.E.2d at 405 (quoting Britt, 363 N.C. at 550, 681 S.E.2d at 323). Simply put, we find nothing impermissible about prohibiting a convicted felon who has exhibited such reckless and irresponsible behavior from possessing firearms regardless of the extent to which he may have cared for his disabled wife or engaged in other commendable activities in recent years. As a result, we conclude that Defendant's "as-applied" constitutional challenge to N.C. Gen.Stat. § 14–415.1 lacks merit.
Felons and the Right to Bear Arms
Yesterday's Baysden v. State (N.C. Ct. App. Nov. 15, 2011) holds that North Carolina's ban on possession of guns by a felon violates the North Carolina Constitution's right to bear arms provision as to someone with two over-30-year-old nonviolent felony convictions. This follows Britt v. State (N.C. 2009), which held the same on similar facts; a North Carolina trial court decision from last month, Johnston v. State, held the same under the Second Amendment, and People v. Dewitt (Colo. Ct. App. 2011) seemed to secure an even broader right — sometimes applicable even to criminals whose convictions are more recent — under the Colorado Constitution.
Many other recent decisions have upheld bans on felon gun possession, either categorically (citing language to this effect in Heller) or as applied to people whose convictions were relatively recent (noting that Heller only said that bans on felon gun possession were "presumptively lawful," and that this presumption might be rebuttable in a proper case). But the North Carolina cases, coupled with the Colorado case, suggest that as-applied challenges brought by people with very old felony convictions might indeed succeed, at least in some courts, and especially if they are brought under state constitutional provisions as well as the Second Amendment. And if a court concludes that the state constitution mandates the restoration of a felon's gun rights under state law, that should also lift the federal ban on gun possession by that felon, see 18 U.S.C. § 921(20).
For a recent New York Times article arguing that some states might be making it too easy for felons to regain gun rights, see here; but my quick skim of the piece suggests that the objections are mostly to restoration of gun rights for people whose felonies are relatively recent, rather than about 30 years old or more, as in the North Carolina cases.
Cautiously Optimistic After the Judiciary Committee Hearing on the CFAA
I testified yesterday at a House Judiciary Committee hearing that focused in part on the need to narrow the Computer Fraud and Abuse Act, a drum I've been beating since 2003. You can watch the video of the hearing here; the CFAA parts were discussed mostly in the opening statements and in the last 15 minutes. For press coverage of the hearing, some of which focuses on my testimony, see Wired News, CBS News, Main Justice, The Register, and Talking Points Memo.
I thought the hearing went relatively well for those of us who believe the CFAA must be narrowed. There were only a handful of Representatives at the hearing at any given time, and at times the only members present were Mr. Gohmert (Vice Chairman of the subcommittee) and Mr. Scott (the ranking minority member). Further, most of the hearing considered other questions in the area of cybersecurity. So any conclusions must be tentative. But in the last 15 minutes or so of the hearing, Gohmert and Scott turned to the CFAA question, and both indicated their view that the CFAA needs to be narrowed so that it doesn't apply to innocent conduct like TOS violations. I was also interested to see that the other witnesses also seemed to agree that that there was a problem with the overbreadth of the statute — the disagreement was only on what do about it. It was only a hearing, and only a few members were present, but I'm cautiously optimistic.
Perhaps the most promising sign is that after the hearing, DOJ struck a conciliatory note in response to press inquiries on its position. DOJ's written testimony submitted before the hearing defended a very broad reading of the CFAA, and it expressed the view that it was important to be able to prosecute Terms of Service violations. That drew a lot of negative press stories, and raised eyebrows at the hearing. After the hearing, however, DOJ spokeswoman Alisa Finelli offered a Politico reporter what sounds to me like a different position:
"The only court to rule on this issue [whether TOS violations violate the CFAA] ruled that it was not a violation of the law. The Department did not appeal this decision, and it has not brought a similar case since," said DOJ spokeswoman Alisa Finelli. "We understand the concern that is motivating these criticisms of the statute, and we are willing to work with Congress on legislative proposals in this area."
Finelli characterized Downing's testimony as meaning that "it is not a 'DOJ position' that such conduct would violate the Computer Fraud and Abuse Act."
As I commented in the Politico story, Finelli's comment leaves me unclear as to what DOJ's position is: I don't see how it's consistent with DOJ's written testimony. But if DOJ's opposition has softened, that is very good news.
Happy (?) American Censorship Day!
So in response to my call for action — OK, OK, it probably would've happened anyway ... — a large coalition of free speech and civil groups (Electronic Frontier Foundation, the Center for Democracy and Technology, Public Knowledge, Creative Commons, and others) have declared today to be "American Censorship Day" to protest the spate of bills now pending in Congress that would, as I've described elsewhere, set a truly dangerous precedent for US policy towards the Internet. There's been something resembling an explosion of opposition to these bills — the conservative American Center for Law and Justice, Educause, an adhoc group of educators, a veritable Who's Who of tech giants, including some companies you might have heard of —AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo, Zynga, a group of over 100 law professors (of which I'm a part), a bipartisan group of ten Congressmen, including Republican Presidential candidate Rep. Ron Paul and Democrat Rep. Zoe Lofgren, a coalition of Research Libraries, and many, many others have taken up the call to oppose this bill. Hearings begin today, and one can only hope that all this activity on the opposition side has made Congress a little more leery than it otherwise might have been to these censorship efforts. More power to them; let's hope we can stop this very misguided and dangerous attempt to bend the Internet — our Internet, thank you very much — to the wishes and needs of the small community of IP rights holders.
[You can sign a petition against these bills here]
[UPDATE: A coalition of over 80 international and human rights organizations has also joined the chorus against SOPA and its companion bills]
Another ObamaCare Glitch
As I discussed in this post, the IRS is proposing to give tax credits as premium assistance more broadly than is authorized by the text of the Patient Protection and Affordable Care Act (PPACA). Specifically, the law only authorizes such premium assistance for health insurance purchased in state health care exchanges, but the IRS is proposing to provide such assistance for insurance plans purchased on federally run exchanges as well. In today's WSJ, the Cato Institute's Michael Cannon and I argue the IRS lacks the authority to make this fix and expand on the implications of this glitch in the law. Not only will it hamper the law's ability to hold down health insurance costs borne by individuals, it could also frustrate enforcement of the employer mandate.
What happens if the IRS goes ahead with its proposed fix? Would anyone have standing to challenge this violation of the law? Normally the answer would be no, as no taxpayer would have standing to challenge an IRS decision to give preferential tax treatment to someone else. But in this case standing is likely because, as discussed here, premium assistance is tied to the enforcement of the employer mandate in a way that would give a penalized employer standing to sue. So if the IRA goes ahead, this is another PPACA issue that will end up in court.
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