Eugene Volokh's Blog, page 2686
October 24, 2011
Consumer Substitution in the Wake of Durbin
According to a Bloomberg story:
About 30 percent of U.S. consumers said they'd leave their banks over fees for using their debit cards, according to a survey by the Research Intelligence Group.
About 43 percent said they'd switch to paying with cash or credit cards if their bank implemented charges; 13 percent said they'd pay the fee if it was "reasonable," according to the survey released last week by the consulting and market-strategy firm.
According to the survey, lower-income consumers, who have the fewest alternatives for escaping the new fees, report that they will be the most likely to persist in paying bank fees:
Low– to middle-income consumers are more likely to pay the fees, according to the survey. About 22 percent of those consumers, defined as those households earning $35,000 to $49,000 a year, would be willing to pay the fee, compared with 14 percent of consumers whose households earn $100,000 or more.
"Less-affluent populations often feel like they have fewer options at their disposal," Kaplan-Sherman said.
Europe Rediscovering Seditious Libel?
Spiegel Online reports:
European Internal Market Commissioner Michel Barnier is considering a move to ban [bond ratings] agencies from publishing outlook reports on EU countries entangled in a crisis, according to a report in Thursday's issue of the Financial Times Deutschland newspaper.
In an internal draft of a reform to an EU law applying to ratings agencies obtained by the paper, Barnier proposes providing the new EU securities authority, the European Securities and Markets Authority (ESMA), with the right to "temporarily prohibit" the publication of forecasts of a country's liquidity.
The European Commission is particularly concerned about countries that are negotiating financial aid — for example from the euro rescue backstop fund, the European Financial Stability Facility (EFSF), or the International Monetary Fund (IMF). A ban could prevent a rating from coming at an "inopportune moment" and having "negative consequences for the financial stability of a country and a possible destabilizing effect on the global economy," the draft states....
Barnier is convinced that the ratings agencies don't always correctly assess the situation at such moments and is thus calling for the possibility of a ban on the assessments. His view is shared by many politicians and economists, who believe that the ratings agencies falsely assessed the economic situation in some countries and further exacerbated the crisis with their forecasts, causing frequent unrest on the markets....
Under the proposal, the ban could only be applied if a country were currently negotiating for aid and other strict criteria were also fulfilled. For example, the assessment would have to pose a threat to other countries or the EU financial system as a whole. EMSA would also be required to agree on the measures with other regulators....
The analogy to seditious libel, I think, is quite close. Traditional seditious libel barred, among other things, statements that diminish the reputation of the government, whether the statements were opinion, true factual assertions, or false factual assertions; likewise here. The rule that is apparently being proposed would essentially be a seditious libel law focused on a particular set of statements about a government's finances. Thanks to InstaPundit for the pointer.
Law, Governance, and the Eurozone
The eurozone is on the verge of meltdown, taking whole economies and banking systems with it, and spreading to the US through the systemic interwiring of the international financial system. Or not. European meetings to avert disaster are coming unglued and the moment when the markets simply stop turning over debt and re-lending is finally at hand, with a tipping point reached against one or another of the economies beyond Greece. Or not.
I'm reasonably sophisticated in international economic law, and pay close attention to these things. I require my students to follow the European debt crisis closely, and I make a point of engaging in discussions with colleagues and friends in the economics, business and finance worlds to try and understand what's going on. But if you are like me, as a business law professor you are never quite sure what to make of the reports that come from political economy on what is happening. And even more, you are not quite sure where to locate the role of lawyers and law in this discussion. I don't mean the role of lawyers in the sense of sophisticated finance people who start in law but gradually take on interdisciplinary expertise; that describes a lot of the players in this world, including lots of law professors.
I mean the role of lawyer and law in the questions of governance, structures of governance, the constitutional arrangements of the the EU, the eurozone, the law of the central banks, and down from the supranational to the national. The economists and most of the political types I speak with do not believe that law is decisive in decisionmaking in this kind of urgent situation; it is epiphenomenal on what the politicians and markets do, and law will be rewritten, reinterpreted, reconfigured either in the event or afterwards to express the new political reality. At most, there are hiccups – such as the German Constitutional Court decision in September that, if I understood it correctly, both grudgingly blessed the bailouts already taken but put serious new national law-based constraints on future ones. But, say my political economist friends, that's just the occasional roadbump. The hurdles are not legal ones in the EU, however much it appears to be a creature of treaty, law, and regulation. It is a discretionary regime in its most important economic crises – as perhaps are all large democratic economies and common markets, including the US (Cf. Hank Paulson's handful-of-paragraphs trillion dollars in 2008). (The questions of sovereign debt covenant interpretation, or the triggering events in credit default swaps, or other private contract issues of course have always been understood to be about law and lawyers; the concern here is about public constitutional law.)
I keep wondering whether law is quite so beside the point, even in what some would call a Schmittian moment of crisis. (That would be a mistaken characterization, in my view, but a tempting one, and I don't mean necessarily mean Posner and Vermeule, but Carl Schmitt's direct intellectual heirs and students in Europe.) Even without reaching to Schmitt, however, from a governance and constitutional standpoint, one could argue that the discretionary elements of the system turned out not to establish the best of all possible worlds – apparently rule-governed, but actually highly discretionary – but instead the worst. (This is, by the way, a distinctly legal issue, by contrast to the best-v-worst observations made about the economics of optimal and unoptimal currency zones.)
It's not so much that I want to stake out a claim, but to raise once again the question of what the implications of this are for the constitutional theory of the EU, and for the economic governance of the eurozone, where governance means something that has to be written down in the law and regulation of the European Central Bank and other institutions. Germany and others are saying that the rules have to mean what they say; others say not so much that the rules aren't clear as that, or that they are revisable in a crisis.
This looks as much to be a governance and constitutional crisis as an economic one, in other words, and a crisis in which law will play a part before and after. The rules, at least to an outsider, on such things as fiscal transfers, the legal mandate of the ECB, seem pretty clear. Maybe there is a jurisprudence that paves a plausible path to what the politicians contemplate, but it doesn't seem so easy, at least to important constituencies in the eurozone. When the newspapers report that, well, the proposal was to leverage the bailout fund in various ways – but that the lawyers advised that this violated various EU laws, that seems to be law playing a pretty independent precipitating role. And what about the aftermath, if the discretionary revisions prevail to rules that important players assumed were not subject to revision? What is the constitutional rule that obtains here, and is it a rule on which markets and national leaders can use to make stable predictions?
I realize the moment of crisis is not the right moment to rewrite constitutional theory, but surely there is more discussion going on somewhere, not just of the specific laws at issue, but of the underlying principles of constitutional decision and action at issue here. It doesn't seem sufficient to merely read a note in the Financial Times or the German newspapers that political leadership had been advised by lawyers that the bailout fund can't be leveraged, or that common issuance of eurozone debt is harder as a legal matter than it looks. But I'm not a European Union lawyer.
Here is an example of what I mean by the sense that in the eurozone crisis, law is a follower, not a leader, and at most a negotiable hold-up. This is drawn from one of my favorite economists, the Very Great Tyler Cowen, on how to exit the eurozone. From the end of his post (emphasis added):
Let's sum up which problems have been addressed and which not. The domestic banking system is saved, at least provided the new conversion rate is credible enough that no one expects a repeat of the depreciation. It's key to make that first announcement a real surprise, good luck! A negative wealth shock will come anyway and my plan has accelerated the arrival of that shock; the best one can do is to combine it with monetary expansion and the positive export shock from devaluation. To fix the external banks, the wealthier countries will need to exercise and perhaps improve their LOLR [Lender of Last Resort] powers, but that is the case under any plan, not just this one.
Admittedly this plan makes the wealth loss in Ruritania quite transparent, which may be politically unpopular, but that transparency eases the economics of the transition.
Voila! Rinse and repeat as necessary. A lot of this would be eased by high inflation from the eurozone itself but a) that would involve collateral costs on the healthier economies, and b) in any case it doesn't look like it will happen. I'm sticking with what a small country can do on its own.
No need to write in the comments section that this is "illegal." Breaking the three percent deficit rule, as France and Germany did, was illegal too. Ruritania will not be hauled before a court of law and I also predict Ruritania will not be ejected from EU per se. Maybe their agricultural subsidies will be cut, let them eat floating exchange rates I say.
This is drafted, from my international contracts lawyer point of view, the way a business person would draft a term sheet – a summary roadmap through the practicalities of business, finance, and some political considerations. But the legal and regulatory issues are essentially treated as revisable or else some form of negotiable hold-up; problems for the lawyers to work out but not as deeply part of the economic deal. They act as constraints on this account, transaction costs that must be paid off – but not truly "constitutional" constraints.
I mean by that, constraints in law that are more than just "hard" to change, but which are hard to change because they are part of a constitutional order, in which the constraints carry important legitimacy all their own that arise because they are, well, constitutive. Built into the structure in a way that is hard to change because people wanted it that way, to tie their hands into the future in a mutual undertaking in which people came together to tie not just each other's hands but their genuinely collective hands, people together – and to tie the hands of the people who would come after. This idea of the independent power of legitimacy, and the function of constitutionalism as more than just a "really big holdup" is, in my experience, very hard to convey to economists, mostly because their world-view doesn't make room for the underlying concept. At most, there's some handwaving in the direction of "Oh, you mean institutional economics." Actually, I mean more than that. I mean "constitutional law."
But then Tyler Cowen points to a rather serious problem for my argument above. For years, we have been told in endless academic papers, books, symposia – mostly funded, however, by the EU in its one-way ratchet of ideological integration – that the EU is indeed a constitutional order, but of a special kind, a new phenomenon in the world, one that has the best of all possible worlds – polis creating its own demos, simultaneously a supranational order but also a merely multilateral collection of sovereignties, etc., etc. Antinomies that somehow all resolve for the best. My reaction as an academic was, well, maybe, let's wait and see; I understand that political leaders can't wait on academic history but must make their choices and act. But when push comes to shove, the constitutive rules didn't prove to bind even the leading principals, as Cowen points out, and discretionary political leadership prevailed instead. And apparently it prevails now.
So this is a problem for my argument that constitutional hurdles in the EU are more than just hard-to-negotiate-away rules, but instead have the legitimacy of constitutive rules. Maybe in the EU they don't. They are hard to get around, but they can be got around with enough political finesse and cover. In that case, however, a core "strategic ambiguity" at the heart of the EU project – no bailouts, is this a revisable rule or constitutive constitutional norm? – is suddenly forced to a choice. I suppose one can say these are just "growing pains" for a new constitutional order, which will take decades and decades to consolidate around genuinely constitutive rules; I have my doubts that this is how it works, in the absence of a genuine demos, but I'm an American and have a different view of sovereignty (Lincoln: "a political community, without a political superior.") But still, if on a matter of crucial economic relations, the "rules" are revisable from moment to moment – is there still a "constitution" at the heart of Europe?
Reason TV: Rehabilitating Lochner
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"Inherently Improper" Searches and Seizures: The Sixth Circuit's Puzzling New Decision in United States v. Sease
Imagine a group of narcotics investigators decide to turn to a life of crime. They set up drug buys just as they normally would. They make their arrests based on probable cause, they search the dealers incident to arrest, and they recover the drugs. But then, instead of bringing the dealers in for charges, the officers release the dealers, sending them on their way. The officers then sell the seized drugs for a profit that they divide amongst themselves. In effect, the officers pretend to enforce the law but really just use their badges to help them steal drugs from criminals.
Next ask yourself what crimes the officers have committed. The most obvious crime is possessing and trafficking in narcotics. Although the courts have read an implied exception into the narcotics laws for police possession of narcotics in the ordinary course of their official duties, that exception would not apply if the officers are merely seeking to become illegal dealers themselves. But now consider this question: Did the officers also violate 18 U.S.C. 242, which prohibits willfully violating the constitutional rights of others, on the ground that the stop, arrest, and search of the dealers violated the dealers' Fourth Amendment rights because officers were not engaging in a bona fide investigation?
In a decision handed down Friday, United States v. Sease, the Sixth Circuit ruled that the answer is "yes." In an opinion by Judge Cole, joined by Judges Rogers and Griffin, the court held that that "where there is clear evidence that the officers were not engaged in bona fide law enforcement activities, but instead acted with a corrupt, personal, and pecuniary interest, the officers violate the civil rights of those that are stopped, searched, or have their property seized."
I think Sease is unpersuasive, and that its analysis reflects a misunderstanding of the Fourth Amendment and possibly also the criminal statute prohibiting willful constitutional violations, 18 U.S.C. 242. In this post, I'd like to explain why. I'll begin with some background, both on the Fourth Amendment and Section 242.
I. Background on 18 U.S.C. 242 and the Fourth Amendment
18 U.S.C. 242 is a federal criminal statute that punishes willful violations of constitutional rights. It states in relevant part:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both . . . .
Prosecutions under Section 242 are often difficult because the Government must satisfy two significant hurdles. First, to satisfy Due Process, the government must show that the government's conduct violated a clearly established right — the same standard needed to overcome qualified immunity in civil suits against officers. See United States v. Lanier, 520 U.S. 259 (1997). Second, the Government must show that the violation was willful. The willfulness standard in Section 242 "requires the government to show that [the defendant] had the specific intent to deprive [the victim] of a right under the Constitution." United States v. Epley, 52 F.3d 571, 576 (6th Cir. 1995). As the Supreme Court explained in interpreting the predecessor statute to Sec. 242, "the specific intent required by the Act is an intent to deprive a person of a right which has been made specific . . . by decisions interpreting" the Constitution. Screws v. United States, 325 U.S. 91, 104–05 (1945).
The relevant right in the Sease case is conferred by the Fourth Amendment, which punishes unreasonable searches and seizures. The critical point here is that the Supreme Court has emphasized that in almost all contexts, the reasonableness (and thus constitutionality) of a search or seizure is to be determined by objective criteria, not subjective intent. The most-often-cited case for this proposition is Whren v. United States, 517 U. S. 806 (1996), in which an officer pulled over a car based on probable cause to believe a traffic law had been violated. Whren argued that the search was unconstitutional because the officer wasn't acting reaosonably, even thought he had probable cause. The ubiquity of traffic laws and the temptation to use traffic violations as a pretext required more than just probable cause when the traffic violation was likely a mere pretext for the stop really made for other reasons, including for reasons of racial discrimination. The Supreme Court disagreed:
We think [our] cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.
Under Whren, then, subjective motives don't generally matter in Fourth Amendment law. What matters is whether the officer had the objective level of required cause, not whether he had a good-faith design to enforce the law.
II. The Sixth Circuit's Analysis in United States v. Sease
The facts of Sease mirrored the hypothetical at the top of the post. Sease was prosecuted for drug crimes, Hobbs Act violations, and both conspiracy to and wilfully violating the dealers' constitutional rights. Sease was convicted and received a whopper of a sentence: Life plus 255 years in prison. In his challenge to the Sixth Circuit, Sease has challenged the sufficiency of the evidence. He has argued that under Whren, he did not violate the dealers' constitutional rights because he did in fact have probable cause to stop and arrest the dealers. Because Sease did not violate the dealers' Fourth Amendment rights, he did not violate Section 242. The Sixth Circuit disagreed, reasoning that the Whren line of cases is not applicable for two reasons. First, Sease's conduct was "thoroughly and objectively illegal from start to finish":
Whren . . . presumes that the officers are engaging in bona fide law enforcement activities when they make the stops. However improper it may be to use a traffic violation as a pretext to look for drugs, there is no question that making traffic stops and looking for drugs are valid and appropriate law enforcement activities. It is only arguably improper if the officers lacked the required probable cause or reasonable suspicion under the specific facts of the situation. By contrast, it is inherently improper for officers to set up drug deals for the purpose of taking the money and drugs for themselves, regardless of the context. Sease's actions are improper in an entirely different way and to an entirely different degree than the actions of the officers in Whren.
Unlike the officers in Whren, Sease and his co-conspirators were not engaging in bona fide law enforcement activities. Instead, they were using the appearance of law enforcement activities as an element of their conspiracy. A key component of Sease's plan was to keep his activities from the attention of his superiors by not filing reports of his stops, acting outside of his assigned precinct, and failing to inform his superiors of the quantities of drugs and money seized. When the Memphis Police Department did find out about at least one of Sease's arranged stops, via a complaint from victim Reggie Brown, they investigated the complaint and swiftly removed Sease from the police force. Unlike the actions of officers in cases such as Whren, Sease's conduct was thoroughly and objectively illegal from start to finish.
The court next concluded that Whren was also distinguishable because Whren was really about the remedy of the exclusionary rule:
Allowing conviction where there is no "bona fide law enforcement purpose" does not implicate [Whren] because the purposes underlying the exclusionary rule and § 242 are different. The holding in Whren represents a careful balance in which the exclusionary rule's goal of prospectively deterring police misconduct is outweighed by law enforcement purposes where there is objective evidence of probable cause. "[S]imply, the Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Whren, 517 U.S. at 814. However, this balance shifts in the context of a § 242 prosecution. Section 242 is a punitive statute designed to punish officers who willfully violate constitutional rights under color of law. The punitive purpose would be undermined were the court to allow a corrupt officer to hide behind the policy goals of the exclusionary rule. Accordingly, although for the purposes of the exclusionary rule the subjective intent of the officer is irrelevant, in the context of a § 242 prosecution, the courts may inquire whethertheofficeractedwithacorrupt,personal,and pecuniary purpose. In addition, unlike in the exclusionary rule context, the court must already inquire into the subjective intent of the officer because willfulness is an element of an offense under 18 U.S.C. § 242. Accordingly, there is no additional evidentiary burden to justify ignoring subjective intent.
Because Sease involved a Section 242 prosecution and Sease had no bona fide law enforcement purpose, his stops and searches violated the dealers' Fourth Amendment rights and Sease could be punished for it.
III. My View of the Reasoning in Sease
I find Judge Cole's analysis unpersuasive. First, Judge Cole's creative effort to distinguish Whren has no basis in the Whren opinion. Whren was not a case about "bona fide law enforcement purposes" or the exclusionary rule. Whren conceded that the officer had probable cause: His objection was that the officer was a racist cop who pulled him over because Whren was black. Intentional racial discrimination is not a bona fide law enforcement purpose. And I don't see any hint in the opinion of it having anything to do with the exclusionary rule.
Even if you wanted to try to read Whren in this rather creative way, I would think that reading is foreclosed by the Supreme Court's May 31, 2011 decision in Ashcroft v. Al-Kidd.
Al-Kidd was arrested and detained on a material witness warrant, which is used in criminal cases to ensure that certain witnesses will be present to testify at a criminal trial. Al-Kidd argued that his Fourth Amendment rights were violated because DOJ was not actually detaining him for the bona fide law enforcement reasons of holding him to testify at a a trial. Instead, he claimed, he was being detained because the government (mistakenly) thought he was a terrorist. Although Al-Kidd was a civil case, not an exclusionary rule case, the Court strongly reaffirmed Whren and vigorously rejected Al-Kidd's effort to introduce the government's alleged non-law-enforcement subjective intent into the picture:
Fourth Amendment reasonableness "is predominantly an objective inquiry." We ask whether "the circumstances, viewed objectively, justify [the challenged] action." Scott v. United States , 436 U. S. 128, 138 (1978) . If so, that action was reasonable " whatever the subjective intent" motivating the relevant officials. Whren v. United States , 517 U. S. 806, 814 (1996) . This approach recognizes that the Fourth Amendment regulates conduct rather than thoughts, Bond v. United States , 529 U. S. 334 , n. 2 (2000); and it promotes evenhanded, uniform enforcement of the law, Devenpeck v. Alford , 543 U. S. 146, 153–154 (2004) .
Two "limited exception[s]" to this rule are our special-needs and administrative-search cases, where "actual motivations" do matter. United States v. Knights , 534 U. S. 112, 122 (2001) (internal quotation marks omitted). . . . . But those exceptions do not apply where the officer's purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified. See Whren , supra , at 811–812. . . . Apart from those cases, we have almost uniformly rejected invitations to probe subjective intent. See Brigham City v. Stuart , 547 U. S. 398, 404 (2006) . . . . . In Whren , 517 U. S., at 813, and Devenpeck , 543 U. S., at 153, we declined to probe the motives behind seizures supported by probable cause but lacking a warrant approved by a detached magistrate. Terry v. Ohio , 392 U. S. 1, 21–22 (1968) , and Knights , 534 U. S., at 121–122, applied an objective standard to warrantless searches justified by a lesser showing of reasonable suspicion. We review even some suspicionless searches for objective reasonableness. See Bond , 529 U. S., at 335–336, 338, n. 2. If concerns about improper motives and pretext do not justify subjective inquiries in those less protective contexts, we see no reason to adopt that inquiry here.
Al-Kidd would read our cases more narrowly. He asserts that Whren establishes that we ignore subjective intent only when there exists "probable cause to believe that a violation of law has occurred," 517 U. S. , at 811—which was not the case here. That is a distortion of Whren . Our unanimous opinion held that we would not look behind an objectively reasonable traffic stop to determine whether racial profiling or a desire to investigate other potential crimes was the real motive. See id., at 810, 813. In the course of our analysis, we dismissed Whren's reliance on our inventory-search and administrative-inspection cases by explaining that those cases do not "endors[e] the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred," id., at 811 But to say that ulterior motives do not in-validate a search that is legitimate because of probable cause to believe a crime has occurred is not to say that it does invalidate all searches that are legitimate for other reasons.
"[O]nly an undiscerning reader," ibid. , would think otherwise. We referred to probable cause to believe that a violation of law had occurred because that was the legitimating factor in the case at hand. But the analysis of our opinion swept broadly to reject inquiries into motive generally. See id., at 812–815. . . . Because al-Kidd concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant; we find no Fourth Amendment violation. Efficient and evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.
After the civil case of Al-Kidd so strongly reaffirmed a broad reading of Whren, it seems impossible to describe Whren as a case about the exclusionary rule. (Footnote 1 of Sease does try to further distinguish a Section 242 prosecuton from a 1983 civil action, but the reasoning strikes me as incoherent.) Plus, I think Al-Kidd makes it very difficult to say that Whren does not apply when there is no bona fide law enforcement purpose. After all, Al-Kidd's argument was that he wasn't being detained for a law enforcement purpose; the Court still saw the case as covered by Whren.
One reading of Judge Cole's opinion is that Sease is distinguishable because the jury ruled that he was engaged in criminal acts. What he did was "inherently improper," in the court's language. But even if that's so, I don't know why that makes any difference from a Fourth Amendment perspective. A Fourth Amendment violation is a Fourth Amendment violation: I'm not aware of a Fourth Amendment principle by which criminal activity makes an otherwise reasonable search or seizure violate the Fourth Amendment. More broadly, if Sease committed criminal acts, then punish him for those criminal acts. I don't think it makes sense to engage in bootstrapping so those criminal acts also become Fourth Amendment violations that enable even more criminal punishment. Doing bad stuff doesn't create a general aura of badness that means you should lose other legal claims, too.
Further, even if you think Sease violated the Fourth Amendment, it's not clear to me how you can get passed the Lanier requirement that the right be clearly established or the Epley requirement of specific intent. Even if you want to read Whren to say that it doesn't apply because there was no bona fide purpose, I don't think that reading was clearly established in the law so as to overcome the qualified immunity standard required by Lanier. And while Sease was clearly acting with an illegal intent, I don't know of any evidence in the case that he was acting with an intent to deprive the dealers of their constitutional rights — as opposed to depriving them of their drugs.
IV. Conclusion
For these reasons, I think the Sease court's analysis of the Section 242 counts is pretty unpersuasive. It's all the more puzzling because I don't think the Court needed to reach the question: Sease had failed to preserve his sufficiency challenge, so the standard in the case should have been plain error. The panel decided to bypass the plain error standard and just decide the case on the merits, but if the panel wanted to affirm, I would think the wiser course would have been to at least try to do so on grounds that this was not plain error.
Finally, I should add that the Court was correct that Sease violated the narcotics laws, and that his conviction on those counts should have been affirmed. The panel gives almost no analysis on this point, seeing it as somehow derivative of the Section 242 counts. The panel writes: "Sease did not engage in bona fide law enforcement activities, and thus he had no legitimate reason to possess the drugs." The more full analysis would delve into why police conduct is normally read to be implicitly excluded from the narcotics laws, something occasionally referred to as the Nardone doctrine, as well as the limits of that doctrine. See generally United States v. Singleton, 144 F.3d 1343 (10th Cir.1998) (discussing the doctrine). I think it would lead to the same result, but through a more satisfactory analysis.
October 23, 2011
Upcoming talks
Lately, I have been remiss about announcing where I am speaking, so here are three upcoming talks or debates on the constitutionality of the Affordable Care Act:
Monday, October 24th (tomorrow) at 11:50am: Temple Law School (Federalist Society)
Wednesday, November 16th at 4:00pm: Drexel School of Law (American Constitution Society & Federalist Society)
Wednesday, November 20th at 12:00pm: Penn Law (Federalist Society)
WaPo Ombudsman Labels Article on Kochs "Tendentious" and "Unfair"
Earlier this month, Bloomberg published a lengthy investigative report on Koch Industries, the privately owned corporation owned by Charles and David Koch. The report documented various illegal or questionable acts by Koch Industries, its subsidiaries and affiliated entities over the past twenty years or so, including regulatory infractions, violations of the Foreign Corrupt Practices Act, (then legal) business deals with Iran, and other unsavory things. The report generated a quick response from Koch Industries, and substantial critical comment from sources ranging from Powerline to ProPublica to the Atlantic.
About one week after the story first ran, the Washington Post republished the Bloomberg story on the front page of its business section. Today, Washington Post Ombudsman Patrick Pexton explains that he thinks this was mistake. Specifically, Pexton thinks the Post should not have republished the story without providing additional context or acknowledging the critical commentary the story had already generated. He writes:
I think The Post erred in republishing this story, or at least in the way it did. And when the Kochs complained to The Post after publication, The Post's response wasn't handled well.
Now, I couldn't find any outright falsehoods in the story that would warrant corrections. Bloomberg, too, has published no corrections. But I think the story lacked context, was tendentious and was unfair in not reporting some of the exculpatory and contextual information Koch provided to Bloomberg. . . .
Lois Beckett of ProPublica made the point (in the comments section) that "Putting Koch's entire legal and environmental record in the context of what other, less politically contentious companies have done would be an important service to readers."
And that's what The Post should have done. . . .
. . . , lots of companies have foreign subsidiaries that until recently did business with Iran, including GE, Hewlett-Packard and Caterpillar. Many multinational companies have been investigated and prosecuted for violations of the U.S. Foreign Corrupt Practices Act, and been fined and prosecuted for violating clean water and clean air laws.
Are the Kochs worse, better or in the middle? We can't tell from this story.
In the environmental area, it's well known that regulatory violations by large corporations are inevitable. In surveys, a large percentage of corporate counsel indicate their belief that consistent 100 percent regulatory compliance is impossible. In assessing an individual company's performance, it is important to know something about the nature of the violation — is it a paperwork requirement or substantive limit — whether it represents an actual risk to human health or environmental resources, and how that company's performance compares with others in the same industry. That a company is critical of environmental regulations, or supports their reform, does not mean the company makes less effort to comply. There are plenty of examples of corporations that endorse environmentalist goals without the regulatory compliance records to match (see, e.g., BP).
[Disclosure: Over the past twenty years, various non-profit organizations with which I have been affiliated have received funding from Koch-related foundations for various projects. I was also paid directly by Koch Industries to give a speech to Koch Industries executives at their corporate headquarters on environmental policy at some point in the late 1990s.]
Why Do Law School Exams Look the Way They Do?
John Goldberg & Barry Friedman, guest-blogging
With Halloween comes a scary prospect for law students and law professors alike. Exams! So it seems like a good time to ask: why do law school exams still center around issue-spotting questions?
It certainly isn't for the good of professors. As the saying goes: "They don't pay me to teach, they pay me to grade." We're curious for your thoughts. Why do exams look the way they do? Where's the value? Should we be testing differently?
We offer an explanation for issue-spotters in our new book — Open Book: Succeeding on Exams from the First Day of Law School. As the title suggests, our aim is to demystify exam-taking, in part by helping students understand why exams are as they are. It's early, but initial positive reviews suggest we're on to something.
Our account of issue-spotters is straightforward, almost embarrassingly so. The traditional issue-spotter exam connects legal education to law practice. This may seem a strange claim, given the fondness professors often show for exam questions featuring bizarre narratives. The point, however, is that they are narratives. And narratives are what lawyers deal with every day.
Somebody –- a client, another attorney –- comes to a lawyer and tells a story. The lawyer then has to translate it into the language of the law, giving advice and predicting possible outcomes. That's what issue-spotters ask students to do.
We certainly don't mean to suggest that other evaluation methods lack merit. Well-crafted multiple choice and short answer questions reward careful thinking and writing. But the classic issue-spotter has the special virtue of tracking legal practice.
Taking law school exams is never going to be fun. Nor will grading them. But we think that professors can take some comfort in recognizing that, on the whole, we are testing for the right thing; that elusive ability to 'think like a lawyer.'
And students, too, can benefit from realizing that they are not merely being asked to play an arbitrary game. Indeed, a basic claim of the book is that students will tend to do better on exams when they connect the "how" of exam-taking to the "why."
In Egypt, Three Years in Prison for "Insulting Islam"
Agence France Press reports:
An Egyptian court sentenced a man to three years in jail with hard labour on Saturday for insulting Islam in postings on Facebook, the official MENA news agency reported.
The Cairo court found that Ayman Yusef Mansur "intentionally insulted the dignity of the Islamic religion and attacked it with insults and ridicule on Facebook," the agency reported.
The court said his insults were "aimed at the Noble Koran, the true Islamic religion, the Prophet of Islam and his family and Muslims, in a scurrilous manner," the agency reported.
It did not provide details on what he had written that was deemed to be offensive....
In 2007, a court sentenced blogger Kareem Amer to jail for insulting the Muslim prophet and then president Hosni Mubarak. He was released last year....
Thanks to Religion Clause for the pointer.
Illegal for Bookstore Owners to Tell the Police About Patron-on-Patron Crime?
That's what seems to be one effect of the newly enacted California Reader Privacy Act. Much of the Act, which mostly covers the procedures required for the government to subpoena bookstore records, might well be quite sensible. But parts of it seem to be drafted strikingly broadly, in a way that interferes with the way people normally report crimes to the police.
Consider, for instance, Bob, who owns and runs a small bookstore. Carl, a customer, goes into the store; while in the store, he commits a crime against Victoria, who is another customer -– snatches her purse, beats her up, or whatever else. Bob knows Carl, and calls the police, telling them that Carl has committed a crime.
Bob has, I think, violated the statute. Selling books is a "book service," under the definition in the statute. Carl is a "user" of the store, and his name –- or even his appearance, if that's all the bookstore owner knows -– is "personal information." The bookstore is a "provider," a "commercial entity offering a book service to the public." Bob is calling from work, based on what he observed at work; his action is thus likely to be considered the action of a "provider" as well.
I suppose one could argue that only the bookstore is the provider, and Bob is just a person and not himself a "commercial entity"; but if that's so, then the entire section I describe, and perhaps the entire statute, could be avoided the same way, since ultimately any disclosure to the government would be done by a person and not the entire entity. Plus if the bookstore is a sole proprietorship — something that would qualify as a "commercial entity," I think, see, e.g., Cal. Civil Code § sec. 1799, a nearby section that defines "business entity" to include "a sole proprietorship" — then it's hard to see how Bob the owner is different from the bookstore as commercial entity. And subsections (c)(4) and (c)(5), which discuss what "the provider in good faith believes," suggest that an employee of the provider and at least the owner of the provider would himself qualify as a "provider," since it's individual human beings who "in good faith believe[]" things.
Given that Bob is a provider, under the law he "shall not knowingly disclose to any government entity ... any personal information of a user" (subsection (c)), unless he "in good faith believes that the personal information is evidence directly related and relevant to a crime against the provider or that user." But the crime wasn't committed against the bookstore or Bob, or against Carl; it was committed against Victoria. So Bob can reveal Victoria's identifying information to the government, but not Carl's (since the crime wasn't committed against "that" user).
This means, under subsection (e), that Carl can sue Bob and get a civil penalty of up to $500. To be sure, the penalty is not huge, and I would imagine that a court would rarely assess much of a penalty at all (even if Bob proves to be mistaken about whether Carl was culpable). But the action would still be a violation of the law — and the message the law is sending to the law-abiding bookstore owners seems to be, "don't report crimes in your bookstore, unless they are against you."
And this doesn't just apply to crimes in the bookstore; it also applies when a bookstore owner –- or a bookstore-plus-coffee-house owner -– overhears incriminating conversations among customers, or (less likely) a crazy or foolish customer asks the bookstore owner questions that suggest something bad is being planned. All of that, it seems to me, would be covered by the statute. (Subsection (c)(4) wouldn't apply even if there's "imminent danger of death or serious physical injury," because that seems to apply only to government-initiated demands; but in any case, it wouldn't apply to cases where the danger isn't imminent, or the planned crime is a property crime, or where the information deals with a past crime rather than a future one.)
There are a few existing rules that do limit reports to the police, for instance by lawyers. But those limitations, to my knowledge, are not nearly as broad as this one. A lawyer, for instance, is bound by confidentiality only with regard to confidential communications he receives, not with regard to crimes that he himself observes, even when the client is committing the crime. And a lawyer may report to the police when a client has revealed plans to commit a serious crime, even when the crime isn't one against the lawyer. So even if bookstore owners should be subjected to confidentiality rules that are similar to those that bind lawyers (which I doubt), this statute goes considerably beyond those rules in the respect given above. Or am I misunderstanding some aspect of the statute here?
Eric Goldman (Law & Technology Marketing Blog) and Paul Alan Levy (Public Citizen's Consumer Law & Policy Blog) have more on other aspects of the law, though I have some disagreements with some parts of their analyses.
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