Eugene Volokh's Blog, page 2699

October 4, 2011

Heller Loses Round Two

(Jonathan H. Adler)

Today the U.S Court of Appeals for the D.C. Circuit released a divided opinion in Heller v. D.C. . In this case, Dick Heller (of the Supreme Court's Heller decision) is challenging the Firearms Registration Amendment Act of 2008 (FRA), a statute adopted by the District of Columbia in response to the Supreme Court's decision invalidating the District's prior gun controls. Whereas Heller had prevailed in the D.C. Circuit before, this time he was not so lucky. The panel majority, consisting of Judges Ginsburg and Henderson, largely rejected his challenge to D.C.'s ban on some semi-automatic rifles and new gun-registration requirements. Judge Kavanaugh wrote a lengthy dissent.






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Published on October 04, 2011 07:35

The Fourth Time Is Not the Charm for Van Hook

(Jonathan H. Adler)

This morning a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Van Hook v. Bobby for the fourth time.  On three previous occasions the panel had granted habeas relief to death row inmate Robert Van Hook , and all three times the panel was overturned — twice by an en banc court and once, summarily, by the Supreme Court.  This time, it appears, Van Hook was out of arguments, and the panel denied his petition.






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Published on October 04, 2011 06:55

October 3, 2011

Crime plummets in Chicago and DC after handguns re-legalized

(David Kopel)

So explains John Lott, in an opinion column for Foxnews.com. Not a surprising result. The McDonald v. Chicago amicus brief I wrote for the International Law Enforcements Educators & Trainers Association (and other law enforcement organizations, and criminologists) showed that after Chicago enacted its handgun ban, its violent crime rate rose sharply. Pre-ban, Chicago had a violent crime rate 1.12 times greater than the violent crime rate of the 24 other largest cities. (That is, Chicago's violent crime rate was 12% higher than that of the 24 other cities.) Post-ban, Chicago's crime rate soared immediately, and remained 67% higher than the other large cities. The possibility that Chicago's sudden and long-standing deterioration compared to other large cities is less than 1 in 100,000. Details are presented at pages 17–22 of the brief, and the appendices.






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Published on October 03, 2011 23:44

The Supreme Court Should Remand the Affordable Care Act to Congress

(Randy Barnett)

Like David, I too was invited to contribute to the new Scotusblog Community on the question of what the Supreme Court should do with the Affordable Care Act. Rather then simply repeat my constitutional arguments, I took a different tack:

The Supreme Court should remand the Affordable Care Act to Congress for its further consideration.

The Affordable Care Act (ACA) was a constitutional mistake and a historical accident. In the fall of 2009, 60 Senate Democrats were struggling to pass some type of health care reform, any type of health care reform. There were not 60 votes for "single payer" (i.e. Medicare for Everyone); there were not even 60 votes for a "public option" (i.e. voluntary Medicare for pre-retirement Americans); and there were certainly not 60 votes to do anything that would raise taxes on those making less than $200,000 per year.

So Democrats went into a closed room — the same room that produced the Cornhusker Kickback and the Louisiana Purchase — and adopted the individual insurance mandate under its Commerce Clause power. It was not as though they weren't warned. The Congressional Research Service correctly informed them that a mandate that all Americans enter into a contractual relationship with a private company for the rest of their lives was literally unprecedented and of dubious constitutionality. Senate Republicans made a constitutional objection to the individual mandate, which the Democrats defeated on a straight party-line vote the day before passing the Act on Christmas Eve.

But this bill was likely never intended to become law. It was intended to get the issue out of the Senate with 60 votes in favor of health care reform. The real bill would then be written in conference with the House and voted on later. But then something unexpected happened: Scott Brown was elected Senator from Massachusetts (!) on this issue. Now Democrats had a choice. Approve the constitutionally-suspect Affordable Care Act in the House (over the strenuous objection of many Democratic members), or go back to the drawing board. But with Republicans and millions of Americans now vocally protesting the constitutionality of the bill, for the first time in American history, a sweeping new social welfare scheme was enacted with the votes of only one party over bipartisan opposition.

Heeding the advice of legal academics, the Democrats wagered that the courts would never strike down so ambitious a social welfare scheme. Then, when this elaborate mechanism eventually failed to deliver on its promises of "bending the cost curve" and "universal coverage" — after private insurance companies had been turned into regulated public utilities — they could then push for their real desire: Single Payer.

Although Congress is a co-equal branch of government, the Supreme Court need not "defer" to what happened here. Instead, it should refuse to extend to Congress the entirely novel and dangerous power to compel all Americans to do business with whatever private company that Congress happens to have the power and votes to regulate. The Court should send this bill back to Congress so Congress can use its ample powers under existing doctrine to tax and spend, as well as to regulate interstate commerce. Such a ruling would affect no other law that has ever been enacted.

I predict that the result of such a decision would be major health care legislation that would not only be far better public policy, it would receive the same type of bipartisan support that has previously been enjoyed by every major piece of social-welfare legislation in our history.

You can comment on this post here at Scotusblog.






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Published on October 03, 2011 19:36

The Decline of Conscription

(Ilya Somin)

Economist Joshua Hall has an interesting article describing an oft-ignored, but very important expansion of freedom over the last several decades: the declining use of military conscription. He notes that, as of 1970, some 80% of the world's governments used conscription, including the US and many of the democratic nations of Western Europe. By 2009, that had declined to 45%, and many of those nation that still have conscription have reduced the length of conscript's terms and made it easier to escape the draft. Even France, the nation that first pioneered conscription in the 1790s, abolished it in 2001.

Hall also gives a good summary of the economic case against conscription. Most knowledgeable people are aware of the standard points that conscription reduces the quality of the military because professionals are, on average, better soldiers than short-term conscripts, and that conscription creates major social costs by forcing people to serve who would be more productive in other occupations. Hall notes two other ways in which conscription is inefficient that are less well-known — that it creates deadweight losses by diverting people from their preferred occupations to those which have draft exemptions, and that it encourages governments to underinvest in military equipment and instead sacrifice more lives in battle rather than capital:

Like all taxes, conscription has distortionary effects that create deadweight losses. During the Vietnam War, for example, draft dodging and college enrollment motivated by draft avoidance created deadweight losses. More recently, World Bank economists Michael Loshkin and Ruslin Yemtsov estimated that 90 percent of eligible men are able to avoid Russia's draft through a variety of means.

In his 1967 article making the case for a volunteer army, Milton Friedman argued that a volunteer army would lead the military to use more and better equipment. One consequence of an artificially low cost of military labor is that it discourages the military from substituting away from labor and towards capital. This point was perhaps best made by German economist Johann Heinrich von Thunen, in his nineteenth-century book, Isolated State:

The reluctance to view a man as capital is especially ruinous of mankind in wartime; here capital is protected, but not man, and in time of war we have no hesitation in sacrificing one hundred men in the bloom of their years to save one cannon.

In a hundred men at least twenty times as much capital is lost as is lost in one cannon. But the production of the cannon is the cause of an expenditure of the state treasury, while human beings are again available for nothing by means of a simple conscription order...

On the latter point, Hall cites a chilling quote by Napoleon, the founder of the first modern conscription system: "When the statement was made to Napoleon, the founder of the conscription system, that a planned operation would cost too many men, he replied: 'That is nothing. The women produce more of them than I can use.'" Napoleon regarded conscripts as a "free good" and therefore didn't much care how many of them got killed. Democratic governments tend to be more casualty-sensitive than he was. But even they tend to waste conscripts' lives at a higher rate than those of professionals who have the right to quit. The introduction of the all volunteer force has clearly led the US military to be more careful about losses than it was in World War II, Korea, and Vietnam.

In addition to its inefficiency conscription is also objectionable because it is a form of forced labor that severely undermines personal freedom. There are few more severe violations of human rights than forcing a person to do work he doesn't want at below-market rates for years at a time. In addition, conscripts' lives are often tightly regulated even when they are not actively carrying out their duties. And, of course, they are sometimes forced to risk their lives.

Many people resist the comparison between conscription and other forms of forced labor because they see military service as providing a great good that is essential to our society. But military service is far from unique in that regard. Historically, slaves and forced laborers often performed work that was vital to the social order. The entire economy of the antebellum South depended on crops produced by slaves. So too with ancient Rome, Russia in the era of serfdom, and so on. The key point to realize is that this work, however noble and necessary, can be performed by free laborers. Thus, the use of forced labor to carry it out is still unjust. The same goes for military service. Both the United States and other liberal democracies can field more than adequate military forces without conscription. Indeed, they can create better armies without it than with it.

One can imagine hypothetical situations where conscription might be justified even on libertarian grounds. For example, it might be the only way to avoid conquest by a totalitarian state that would impose more brutal and more universal forms of forced labor. In the real world, however, no such scenario is even remotely plausible for the foreseeable future. And it is likely to become even less plausible as military technology becomes more complex and soldiers need more and more specialized skills that are best provided by professionals rather than temporary conscripts.






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Published on October 03, 2011 17:35

Ken Burns's "Prohibition"

(Orin Kerr)

The Prohibition Era combines two of my favorite topics: the Fourth Amendment and beer. The latter was banned, and the former was routinely litigated for the first time in American history. As a result, I was a natural audience member for the new Ken Burns's series Prohibition, which began last night. The series is loosely based on Daniel Okrent's book Last Call. Based on the first episode, though, the TV series is much easier to follow than the book: When I tried reading the book a few months ago, I found it in need of an an editor who could link the pieces together in a coherent way. But the TV version is excellent so far. The story is well told, and the pictures and video (even with awkwardly filled-in artificial sound) add a lot.

You can watch the first episode in its entirety here. Enjoy.






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Published on October 03, 2011 16:11

Drinking and Driving

(Eugene Volokh)

One meaning of "saloon," at least in England, turns out to be the type of car that we Americans call a sedan. I did not know that.






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Published on October 03, 2011 16:09

Subpoena for Library Records

(Eugene Volokh)

There has been a lot of controversy in the past about whether the government should be free to subpoena library records or bookstore records, or execute search warrants for such records. (See, for instance, this post of Orin's, this Congressional testimony by Orin, and pp. 30–37 of this article of mine.) I just ran across a case that dealt with this question in an unusual context — where the defendant's alibi involved his supposedly returning a certain book to the library, :

Mr. Hilton's remaining arguments are that the records were private under both Const. art. I, § 7 and the Public Records Act (PRA), chapter 42.56 RCW, and protected by the First Amendment and Const. art. I, § 5. In particular, he cites to RCW 42.56.310, which provides that a library record that "discloses or could be used to disclose the identity of a library user is exempt from disclosure under this chapter." The emphasized language makes short work of Mr. Hilton's PRA argument. The PRA provides an exemption from disclosure pursuant to a public records request. It does not create a privilege, let alone a privilege exempt from judicial process. See RCW 42.56.050; Brown v. Johnston, 328 N.W.2d 510 (Iowa), cert. denied, 463 U.S. 1208 (1983). Similarly, Const. art. I, § 7 prohibits intrusion into "private affairs" absent "authority of law." A subpoena is "authority of law." Gunwall, 106 Wn.2d at 69. Mr. Hilton's argument is without merit.

The free speech argument fares no better. Mr. Hilton appears to predicate his claim at least in part on the theory that the SIJ [Special Inqury Judge] proceedings were invalid, an argument we have already rejected. His sole authority is a Colorado case, Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo.2002). That authority is not apropos. That case involved an injunction against a search warrant, not a valid subpoena. The court ultimately concluded that the government had not established a compelling interest justifying the search for records that were recognized as private in Colorado. Id. at 1061. There, also, the bookstore resisted efforts to provide information about its customer. Here, the library provided the records within hours of the subpoena. Mr. Hilton has presented no relevant authority suggesting that this subpoena was invalid for failing to address the particular concerns associated with free speech rights.

Even if Washington followed the same compelling interest test, it would be met in this case. A double murder was being investigated. Mr. Hilton had voluntarily told police that he had been at the library that evening and indicated which book he had returned. He had waived any claim of privacy related to Hard Time or his checkout and return records. The compelling State interest in confirming or dispelling his alibi outweighed the privacy interest he had already waived. [Footnote: Moreover, the librarian's testimony concerning when Hard Time was returned to the library was the result of an independent source–the defendant's own admissions to the police–not the subpoena process. Thus, even if the subpoena had been invalid, it would not affect the testimony against the defendant.]

The SIJ subpoena was properly issued. It did not infringe upon any rights belonging to Mr. Hilton. Accordingly, the trial court correctly denied the motion to suppress the evidence.

As I mentioned, this is an unusual situation, and one could argue that the rule should be different if the government were seeking library records in other contexts. But I thought it was still worth noting, just as an example of how the issue might sometimes come up.






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Published on October 03, 2011 14:27

E-Mail Confidentiality Statements and the Electronic Communications Privacy Act

(Orin Kerr)

It is common for e-mail from lawyers to have a statement at the end indicating that the e-mail is confidential and may be privileged, and that if you have received the e-mail in error you should delete it. Sometimes the statement also includes this line:

This email (including the attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510–2521.

If you're a lawyer and the statement at the end of your e-mail has that line quoted above, please do yourself a favor and remove it. Including that line only shows that you have no idea what the Electronic Communications Privacy Act does, and that you are comfortable repeatedly invoking a law even though you have no idea what is in it. That's a pretty lousy image to present for your legal practice.

For those curious about the details, 18 U.S.C. §§ 2510–2521 is the federal Wiretap Act. It prohibits the real-time interception of the contents of any communications sent over any communications network without the permission of one of the parties. In 1986, the law was amended by the Electronic Communications Privacy Act to apply to "electronic communications," which basically means all computer communications. Under the 1986 Act, it is a crime to intercept any electronic message between its send and delivery points absent an exception to the statute. Importantly, the Wiretap Act only applies when the communications are in transit. That means the statute doesn't stop anyone from reading any e-mail that lands in their inbox, even if it was misdelivered there. That's true for two reasons. First, If the e-mail has been sent to you, you are a party to it, and you can read it. Plus, once an e-mail has been delivered and it is sitting in your inbox, reading it cannot be an "intercept" because the e-mail in your inbox has already been delivered.

Now that you understand what the statute actually does, you can see why the disclaimer that I quoted above is rather nonsensical. First, the lawyer's e-mail is "protected" by the statute only to the extent that every phone call and every e-mail, Facebook message, text message, IM, and every other electronic communication is protected. Second, by the time the reader actually sees the e-mail, the message has been delivered and the cited statute no longer provides any protection at all. So if you include that line, you're basically saying that you think it's noteworthy that your e-mail has the same protection has all e-mails — which in this case is none at all.






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Published on October 03, 2011 13:49

With Tom Lucero on the Luke Shilts Radio Show Tonight

(Todd Zywicki)

Tonight at 7:00 eastern I'll be appearing with guest host Tom Lucero on the Luke Shilts Radio show on 1310 KFKA in Colorado talking about "The Dick Durbin Bank Fees."






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Published on October 03, 2011 13:03

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