Eugene Volokh's Blog, page 2682

Punctuation, Quotation Marks, and Footnotes

(Eugene Volokh)

A few thoughts — perhaps helpful to law review editors and authors — about what's customary in American legal publications. [Added: My sense is that this is also customary in most other books and journals, but I can speak with the most confidence about the custom in legal publications.]

1. Place commas and periods inside quotation marks, e.g.,

The Court's answer to this was "no."

2. Place all other punctuation marks outside quotation marks, unless they are logically parts of the quotation. I have seen some departures from this where semicolons or question marks are involved, but my sense is that those departures remain rather rare exceptions in modern legal publications.

The Court's answer to this was "no"; but two years later, the Court changed its mind.
Was the Court's answer "yes" or "no"?
The Court's response was, in essence, "Says who?" [The quotation mark is logically part of the quotation.]

3. Place footnote calls after all punctuation marks (other than em dashes), except if the footnote relates solely to a parenthetical, in which case place the call within the parentheses. I have likewise seen some departures from this, but again my sense is that they remain rare exceptions.

The Court disagreed.1
The Court disagreed in the first case,2 but then changed its mind.
The Court disagreed in the first case;3 but in the later case . . . .
The Court reversed (except as to the jurisdiction issue4), holding . . . .

See, for example, this Harvard Law Review article, including footnote calls 73 (p. 24) and 141 (p. 40).

The reasons for these practices are obviously not solely logic; they are chiefly aesthetics and custom (which are related, because once a custom is established many people will find adherence to the custom to be more aesthetically pleasing). Nonetheless, unless I'm mistaken, the practices are pretty well-settled, and editors risk annoying readers — and being inconsistent even within their own publications — if they depart from this custom.

I should note, by the way, that many people are quite opposed to the custom of placing periods and commas in quotation marks, even when the periods and commas don't logically fall within the quoted material; as I understand it, the modern British style is indeed to place periods and commas within quotation marks only when they are themselves being quoted. But I don't want to get into this debate here (see this Slate article for one view of the debate), or enter into a similar logical debate as to footnote calls. Rather, I'm just trying to report what the custom actually is, for those who feel they ought to follow the custom.

I should also note that it's possible that I have misunderstood or incompletely described the custom, or missed a major and broadly accepted competing view. (Among other things, it's not easy for me to use Westlaw or Lexis to quickly confirm my sense of the dominant view here; it would be much easier if the question had to do with rival spellings or phrase constructions, which are more readily searchable.) Please let me know if I have indeed erred in this respect.

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Another Setback for Cape Wind

(Jonathan H. Adler)

In 2002, federal reguators predicted it would take between 18-months and three-years for the proposed Cape Wind energy project in Nantucket Sound to receive federal approval.  Nearly ten years later, the project is still awaiting full federal clearance, and has yet to begin construction.  Full operation remains at least two years away.

On Friday, the Cape Wind project suffered yet another setback when the U.S. Court of Appeals for the D. C. Circuit vacated and remanded the Federal Aviation Administration's determinations that the project would pose no hazard to air traffic.  A unanimous three-judge panel concluded that the FAA had failed adequately explain the basis for its decision.  Even though formal FAA approval is not required for the windfarm, the Interior Department has made its approval of the plan conditional upon FAA clearance and full compliance with any FAA-recommended mitigation measures.  So until the FAA can provide an explanation for its "no hazard" determination the D.C. Circuit will accept, construction will be on hold.

Friday's decision is not merely a setback for Cape Wind.  It worsens the climate for offshore wind energy development more generally.  The longer and more uncertain the regulatory process for such projects, the harder it will be to encourage private firms to invest — and the more difficult it will be to expand wind power offshore.

The Cape Wind experience also shows that it does not take much to gum up the regulatory gears for new projects of this sort.  Opposition to Cape Wind has been driven by a few dozen families willing to invest their time and money to influence the regulatory process — and it's worked.  It does not matter whether a proposed project is popular with local residents, as a relatively small group of naysayers can exploit existing regulatory requirements to slow things down in the hope of eventually killing the project altogether.  If other offshore wind projects are to succeed where Cape Wind has (thus far) failed, they will must prepare for similar opposition, and encourage regulatory reforms that will streamline wind project development and approval.

Why a Cybersecurity Treaty Is a Pipedream, and a Better Approach for New Conflict Technologies

(Kenneth Anderson)

Adam Segal and Matthew Waxman, both fellows at the Council on Foreign Relations, write at CNN.com on why the global cybersecurity threat leads many to believe that the only way to address this transnational issue is through a treaty — and why such a treaty is a pipedream.

The hacker – a government, a lone individual, a non-state group – stealing valuable intellectual property or exploring infrastructure control systems could be sitting in Romania, China, or Nigeria, and the assault could transit networks across several continents. Calls are therefore growing for a global treaty to help protect against cyber threats.

As a step in that direction, the British government is convening next week the London Conference on Cyberspace to promote new norms of cybersecurity and the free flow of information via digital networks. International diplomacy like this among states and private stakeholders is important and will bring needed attention to these issues. But the London summit is also likely to expose major fault lines, not consensus, on the hardest and most significant problems. The idea of ultimately negotiating a worldwide, comprehensive cybersecurity treaty is a pipe dream.

Different interests among powerful states – stemming from different strategic priorities, internal politics, public-private relationships and vulnerabilities – will continue to pull them apart on how cyberspace should be used, regulated, and secured. With the United States and European democracies at one end and China and Russia at another, states disagree sharply over such issues as whether international laws of war and self-defense should apply to cyber attacks, the right to block information from citizens, and the roles that private or quasi-private actors should play in Internet governance. Many emerging Internet powers and developing states lie between these poles, while others are choosing sides.

Segal and Waxman point out not only ways in which a treaty regime is almost certainly an instance of utopian international law dreaming that, if anyone actually relies on it, is highly likely to fail.  They go on to present a positive agenda of steps that states can take in order to develop what amount to state practices aimed at consolidating looser norms of state behavior and best practices of states.

'Treaty regimes' and 'state practice norms' also frame arguments over other new conflict technologies, not just cyber.  Drone based targeted killing is the most obvious example.  When I write, for example, that there are many reasons why drones and targeted killing practices will spread, for reasons that have nothing to do with the US sparking an imagined "arms race" and everything to do with technological transformation in aviation, even many of those who agree with that assessment instinctively reach to treaty mechanisms as the way to regulate their use.

That will likely work out fine in civil aviation and the use of drones.  I'm sure states will eventually incorporate drones in ordinary civil aviation into protocols for air traffic control and transborder use, and might well show up in some form of aviation treaty or international rules.  But it seems to me highly unlikely and indeed counterproductive to pursue treaty mechanisms for their use in armed conflict in its legal sense, or in uses of force that are outside of technical states of armed conflict (such as cross border strikes against terrorist safe havens where no armed conflict is otherwise underway), what I have sometimes clumsily called "intelligence-driven uses of force."  The common interests are hard to discern, enforcement mechanisms practically non-existent pursuant to the treaty regime, and defection hard to monitor or prove, given the often covert nature of the use.

These treaty negotiating problems are compounded — in drones, cyber, other areas of technology — by the strategic condition that these technologies fundamentally favor the offense at a relatively cheap price, in material terms but also in strategic terms of deniability and covertness.  Technologies that allow discrete strikes from a distance, favoring the offense and with limited ability on defense, and the potential ability to prove devastating particularly in the cyber area — these are conditions that favor states wanting treaties, but quietly developing the technological capabilities to defect at will, with strong deniability.  Not only do the strategic terms of these technologies favor destabilizing offense, in other words, their covert and deniable possibilities favor public treaty negotiations to trap the unwary who take the treaty seriously — while preserving the technological capability of deniable defection from the treaty regime at will.

For these and other reasons, I agree with the thrust of Segal and Waxman's positive agenda in the cybersecurity area that the preferred approach in all these technology-driven areas is instead for states such as the United States to develop independent state practice, and accompany it by explicit statements as to what it believes the long term normative principles for use are and should be.  The State Department has taken important steps in this direction in Legal Advisor Harold Koh's statements that any use of force, including (speaking colloquially, not technically) covert action, must meet the threshold conduct standards of necessity, distinction, and proportionality.  That's an important acknowledgment, often overlooked, about the nature even of covert uses of force.

Or consider Robert Chesney's recent post at Lawfare on what he shrewdly calls the "Pandora's Box Critique of Drones," a critique that encompasses the "arms race" and several other "look-what-the-US-has-unleashed" arguments that have many advocates at this moment.  (Chesney has been engaged in a major study of the integration in US domestic law of Title 10 military operations and Title 50 intelligence community operations.) He remarks on the ways in which the US has been setting out principled limits on both the resort to force with these new technologies and the principles governing their use:

Last, the Pandora's Box critique.  [Daniel] Swift [writing in Harper's] argues (once more quoting Alston) that our approach to drone strikes will "come back to haunt the United States," as more and more countries develop this technology (Swift emphasizes Iran in the concluding line of his paper). While it is always wise to bear in mind such possibilities, I just can't agree with those who imply that states like Iran, China, and Russia would not develop and deploy armed drone technology without the precedent of the American drone program, nor that these states would refrain from using the technology in certain ways but for the legal positions that the United States has taken. On the latter point, it is important to bear in mind that the U.S. government has never asserted the authority to simply use lethal force wherever in the world al Qaeda members might be found, without respect to the wishes of the host-state in whose territory the al Qaeda members turn out to be. Aside from Iraq, Afghanistan, and Libya, the public record suggests that lethal force has been used in Pakistan, Somalia, and Yemen, and that in each instance the U.S. government either had consent from the host state (private, perhaps, but consent nonetheless) or else was acting in a circumstance in which the host state was unwilling or unable to act. U.S. actions are precedent for nothing more, and nothing less, than this.

Of course, that does not mean that a state like Iran won't do its best to analogize some future action to the U.S. drone program, in circumstances in which we do not find the analogy persuasive (because we disagree that the host-state is unwilling or unable to act, or more likely, because we disagree that the target of that state's use of force posed a sufficient threat to justify such an action). Such cases no doubt will arise one day. But I am skeptical that such cases would not arise but for current U.S. drone activities. In any event, the debate should focus much less on the weapons platform involved and far more on the question of which fact patterns are appropriate to justify non-consensual uses of force on the territory of other states.

Many will find these state practice approaches, which make no claim to the status of international law as such, but instead practices informed by and grounded in fundamental international law principles, to lack the presumed international legitimacy of a treaty.  But critics should consider the damage done by a treaty that takes many years to develop, if it ever gets past negotiations — while quite possibly the technology evolves meanwhile into something else not obviously governed by the treaty and its rules.  And then it turns out to have overreached and fails to restrain.  There are legitimacy costs there, too.

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A Sad Commentary on the Republican Field

(David Bernstein)

Newt Gingrich is starting to look kind of attractive, relatively speaking.

(If only Gary Johnson could get some traction...)

Massachusetts Town Briefly Forbids Prayer Vigil on the Town Common

(Eugene Volokh)

So reports the Jessica Heslam (Boston Herald):

[Michael Casey] went to [Upton's] three selectmen last month with a simple request: to hold a peaceful prayer vigil on the town common. It was supposed to be part of about 7,500 "rosary rallies" held nationwide by America Needs Fatima, a nonprofit Catholic group.

The selectmen put their feet down. No way, they told Casey, invoking the Constitution's separation of church and state.

Here's the item from the town meeting minutes, which supports the newspaper's story:

3. Rosary Prayer Vigil on the Town Common

Selectmen Picard stated he is uncomfortable with this request, he understands the person's desire but persons of other religions could feel slighted if we do not also open it up to them. Selectmen Brochu also is uncomfortable with the request and agrees with Selectmen Picard. Chairman Fleming stated the Board has been generous allowing religious group's use of town property providing it was not a religious type service. He did state the law does require separation of Church and State and to use the Town Common area for a religious function does tip toe in violation of the constitution. He also stated the Town is careful to allow holiday events on the common but they are very generic and refrain from imposing anything on a citizen that they would not want on their property and it is town property.

But the Establishment Clause, as interpreted by the Supreme Court, bars only government speech endorsing religion. It doesn't bar private religious speech in generally accessible public property, and especially in a traditional public forum (which the Upton Common seems likely to be). And in fact the Free Speech Clause protects such speech against content-based exclusion from such places; see Capitol Square Review & Advisory Bd. v. Pinnette (1995). Fortunately, the Selectmen have now changed their decision:

"They realized that this was an unfortunate decision and a misunderstanding of the law," [Town Manager Blythe] Robinson said. "I'm going to work with them to put together a policy to make sure we take care of this in the future."

Thanks to Victor Steinbok for the pointer.

The Top 1% of Computers

(Todd Zywicki)

From yesterday's WSJ:

Nan Terrie learned an expensive lesson last week about the importance of property rights. "Stealing is our biggest problem at the moment," the 18-year-old protester told the New York Post. "I had my Mac stolen—that was like $5,500." Why? Because she left it in a public place, amid a crowd demanding the redistribution of wealth. Imagine that.

I wonder what percentage of Americans own a $5,500 Mac computer–less than 1%, I'd guess.

Amicus Briefs and International Law in US Courts

(Kenneth Anderson)

Further to Orin's brief post on Richard Fallon's splendid essay about amicus briefs by law professors with a longer comment about the special role they play in international law cases in US courts, such as the upcoming Alien Tort Statute case in the Supreme Court.

I've drafted some amicus briefs in international law cases in US courts and I've signed bunches more. But I've always had a nagging concern about why a court should take seriously what I have to say on account of being a professor – a professor with an agenda. I understand that having an agenda is otherwise known as "writing a brief," and I also understand that the literal notion of an amicus as a genuinely neutral "friend of the court" has long since been extinguished. I am not a litigator by trade, and have always treated my own contribution to amicus briefs as strictly substance in areas in which I believe I am expert. I have had long suppressed questions about why courts should accept these briefs at all, given that they seem to me – my amicus briefs and everyone else's – just advocacy leveraged by quite specious claims of "neutral" expertise. Meaning by "specious" – the expertise is real, the neutrality is not.

So litigation is a mysterious realm to me and, to be perfectly frank, as a transactional lawyer who can't imagine litigating, and despite my belief in the adversarial advocacy process, when I've been a personal participant, I find briefs to be a species of writing entirely too close to, well, lying. I don't mean that in a bad way, of course; that's an aesthetic judgment rather than a moral one, because I do believe in the adversarial process. I suppose that in making my own peace with amicus practice, I've essentially told myself, well, "Markets in everything. Courts know perfectly well that amicus are not neutral friends of the court and will discount accordingly."  The concerns raised in this article are, as with everything Richard Fallon writes, exquisitely crafted, careful, nuanced, and sensitive from inside the profession and inside the professional role. It is skepticism from inside, and gains a great deal of intellectual power from this positioning, especially concerning something that has received very little attention. This is an essay in the sociology of the profession, but one that comes from inside out. My own concerns here are much more external. But I fully share the view that this is "an overdue discussion."

The reason I raise this beyond what Professor Fallon says, however, is that particularly with the Supreme Court having accepted an Alien Tort Statute case presenting enormously important substantive issues, we international law professors are busy already sorting ourselves into encampments of amicus brief writers, with some leaders coordinating the troops on each side. The issues are important and the stakes in this ATS litigation large; these are worldly issues. But the problems of informing the Court on international law issues present much graver dangers of expertise and neutrality than is the case for the kinds of domestic law issues that this essay grapples with. We presume to instruct US domestic courts on "international law," on issues in which fragmentation is the norm.

I frankly wouldn't know, if I were a court, how to cut through the web of quite contradictory assertions that international law scholars make when we get into litigation, without cavil or hesitation or any suggestion that anyone might plausibly go the other way. And particularly so as American lawyers, trained in the litigation practice of never conceding anything, never expressing anything other than robust confidence in one's own position, and seeing that as what an advocate is supposed to do. I said it's an aesthetic judgment, not a moral one, this practice of utter certainty of belief about stuff that, whether one likes it or not, just is contested – but did I mention "lying"?

I have always thought it better to acknowledge the weaknesses of one's position, the views on the other side, and address them, and if necessary – as I think it the case in "international law," at least on the issues addressed in these kinds of cases – assert plausibility, greater and lesser plausibility, rather than certainty. I have yet to find an experienced litigator in an ATS case who thought that was a good idea – and that primarily, if I were to be blunt about what was actually meant, because the court would not be experienced enough at international law necessarily to know that the asserted certainty was misplaced. So much for the "markets in everything" – did I mention "information asymmetry" and "agent-principal failure"?

The asymmetry here is of a special kind, however – not strictly about the content of international law, but instead as to the certainty one ought to have in a particular view as to that content. We want it both ways as scholars; the ability to obfuscate as a pure advocate, and the ability to market ourselves not merely as neutral but, in the literal sense of friend of the court, an agent of a principal, a claim of trust or, anyway, "Trust me – I'm an expert!"

Of course, courts are rightly skeptical of international law scholars these days, and probably don't see us as much other than baroque ornamentation for an opinion, a scholarly accouterment. I suggested to an ATS defense-side lawyer recently that the proper way to open an ATS amicus brief was with a frank statement that the court should pay no attention to any of the scholars, but if it was going to pay attention, it might as well read this one. The response was that this was probably unnecessary, as the court already had this view. And added that the real reason for these briefs was to try and get famous professors' names in front of the judge's clerks, who might be much more impressed and flattered – and, delicately and indirectly, did I know any?  (This Goldsmith fellow, perhaps, or Professor Chesney? [joke! — ed.])  You can understand why I am not a litigator.

I will, I'm sure, participate in some fashion in our upcoming War of the Roses. I, like many international law scholars, will march off to battles of flower-and-song with some congenial group of scholar-warriors, and huddle around campfires late at night to sharpen our submissions before going the next morning to blow our scholarly trumpets and engage in scholar-advocate combat. But amicus practice by law professors has a lot more ethical depth to it than we ordinarily acknowledge, and I'd commend this article to you, and think that in international law in particular we ought to talk quite a lot more about what this means, especially for my field when it shows up in US courts.

Richard Fallon on Law Professor Amicus Briefs

(Orin Kerr)

An interesting essay, via Prawfs. If I were a law clerk, I would ignore the names of professors who are signatories but not authors of amicus briefs. In my experience, some of the professors who sign on to amicus briefs don't even bother to skim the briefs filed in their name. Those who read the briefs sometimes have serious reservations about their content, and others simply don't know enough about the area of law to determine if the brief is accurate. Caveat scriba, you might say. More from Ward Farnsworth here.

Second Amendment Protects Felon Whose Convictions Were 30 Years Ago

(Eugene Volokh)

So held a North Carolina trial court in Johnston v. State (Oct. 24, 2011). Richard Johnston had been convicted of "felonious receipt of stolen property and conspiracy to commit grand larceny" in 1978, and pled no contest "to fraudulent setting fire, conspiracy, false statement to procure, and conspiracy to receive, receiving, conspiracy to commit larceny and accessory before the fact" in 1981. (The underlying crimes occurred in 1976, and "did not involve either violence or the use of a firearm.") Since then, Johnston has apparently led a law-abiding life, setting aside "routine traffic citations and two hunting citations, one of which was dismissed"; he is now 69 years old.

The trial court concluded that, when Heller said that bans on felon possession of guns were "presumptively valid," this presumption could be rebutted, and in this case it was rebutted, given the age of Johnston's conviction and his apparently blameless life since then. The court also suggested that its analysis might also apply to people whose last convictions were as recent as seven years ago, especially when the convictions were for nonviolent crimes; but it didn't have occasion to issue any specific holding on that point.

The court also concluded that North Carolina's firearms rights restoration law — which allows firearms rights to be restored only when a person has only one felony conviction, that felony is a nonviolent felony, and the conviction is at least 20 years old — violates the Due Process Clause, because it "provides no procedural mechanism by which a person subject to it may be heard on the issue of ... her likelihood to commit future crimes of violence using a firearm before being deprived of her fundamental liberty interest" (p. 23). (I'm not sure that this is a sound argument: If a permanent ban on gun ownership by all felons who have more than one felony conviction is unconstitutional on Second Amendment grounds, the due process analysis is beside the point, but if it is unconstitutional as to certain felons, the objection is to the substantive prohibition and not to the procedure.)

Finally, though the court favorably cites Britt v. State, a 2009 North Carolina Supreme Court case that held that a felon whose crimes were similarly far in the past regained his constitutional right to bear arms, the Johnston decision rests on the Second Amendment, and Britt relied only on the North Carolina Constitution's right to bear arms provision. This makes Johnston potentially more influential in other jurisdictions, assuming it is appealed and affirmed on appeal.

The opinion is also quite long and pretty detailed in setting forth its arguments; if you're interested in the subject, read the whole thing.

Ninth Circuit Grants Rehearing En Banc in United States v. Nosal

(Orin Kerr)

I've blogged a few times about the recent Ninth Circuit decision in United States v. Nosal, which held that "an employee accesses a computer in excess of his or her authorization [in violation of 18 U.S.C. 1030] when that access violates the employer's access restrictions, which may include restrictions on the employee's use of the computer or of the information contained in that computer." My most recent post on Nosal linked to the petition for rehearing and expressed the hope that the Ninth Circuit would grant it.

I'm pleased to report that the Ninth Circuit today granted the petition for rehearing. This is promising news for those of us who have worried about the remarkable overbreadth of the Computer Fraud and Abuse Act. As always, stay tuned.