Eugene Volokh's Blog, page 2701

Supremely Consequential

(Jonathan H. Adler)

In case you haven't read enough Supreme Court OT 2011 term previews, here's the one I wrote for NRO: "Supremely Consequential."

October Term 2011

(Orin Kerr)

28 U.S.C. § 2 states:

The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.

Happy First Monday, everyone.

The Science is Settled: You're Just Too Stupid to Live

(Stewart Baker)

The Institute of Medicine, part of the National Academy of Sciences, has studied the problem of how to distribute antibiotics in the event of an anthrax attack.  It's a big problem, because, as the study confirms, the antibiotics have to be in people's hands (mouths, really) within 48 hours of an attack.  And it may take the government almost that long to realize we've been attacked.  So, the scientists had a choice between recommending (1) a Big Government solution, in which the government stockpiles the antibiotics, flies them to the affected area when needed, and relies on the near-bankrupt Postal Service to get them to the right people in time, or (2) letting people have (or buy) Medkit packets of antibiotics to store at home for an emergency.

The study was funded by HHS, so you won't be surprised to discover that the Institute recommended (1) a Big Government solution.  The main reason it gives is that you and the rest of the public are just too bone stupid to be trusted with antibiotics.  But to spare your feelings, the Institute puts it this way:  letting you have antibiotics raises "the potential for inappropriate use in routine settings (e.g., using the antibiotics to treat a cold) and the potential for widespread inappropriate use in response to a distant anthrax attack, a false alarm caused by a nonanthrax white-powder event, or some other public health emergency for which antibiotics are not indicated."

But, really, "too bone stupid" is pretty much what they meant.

This is the National Academy of Sciences, of course, so they've got scientific evidence of our stupidity.  Like, for example, the Center for Disease Control gave more than four thousand people in St. Louis special antibiotic medkits to hold for an emergency.  Months later, they went back and collected them.  They counted the people who had engaged in "inappropriate use in routine settings." And they found, uh, four.  Not four percent, four people.  That's one-tenth of one percent, last time I looked.

Apparently we weren't as dumb as the National Academy of Sciences would like to think, so they declared that this science wasn't settled, in fact it wasn't even worth thinking about.  Why?  Because participants were promised a $25 gift certificate if they completed the study. According to the National Academy's report, this promise of a gift card so tantalized the unwashed masses that they pretended to be less stupid than the scientists know we really are. So the study didn't count.

Once all that nasty unpredictable science was out of the way, the National Academy of Sciences was free to say what it wanted to say all along:  No antibiotics for you.

But the gob-smacking foolishness of relying on government distribution of antibiotics in an emergency was simply too obvious for even the Institute of Medicine and the National Academy of Sciences to completely ignore.  So they encouraged the distribution of some medkits to some people.

Which people, you ask?

Do you really have to?  The study tentatively recommends that the life-saving kits be issued to "some first responders, health care  providers, and other workers that support critical infrastructure, as well as their families." Apparently medical workers aren't too stupid to live, according to the Institute of, uh, Medicine.  And neither are government workers – those postal workers, the cops that will have to accompany them, and anybody else in government who's smart enough to call himself a first responder (want to bet that includes the Governor?).

And their families too, of course.  We'll need to repopulate, after all.

Have I been unfair to the authors?  It's possible.  I went through the report fast, and with mounting blood pressure.  So I welcome corrections in the comments. Or jokes about government health care, as you choose.

The more important question is:  What can you do to protect yourself from this astonishing feat of policy malpractice?

Here, at least, I can praise the report, because it acknowledges, a bit grudgingly, an option I highly recommend:  Ask your doctor for a prescription for antibiotics and stash them in a cool, dark,dry place (not your warm, light, wet bathroom).  If your doctor balks, you can quote this passage from the report:

Personal stockpiling might also be used for certain
individuals who lack access to antibiotics via other timely
dispensing mechanisms (for example, because of their
medical condition and/or social situation) and who de–
cide—in conjunction with their physicians—that this is
an appropriate personal strategy. This is allowed under
current prescribing practice and would usually be done
independently of a jurisdiction's public health strategy
for dispensing medical countermeasures.

Of course you're supposed to persuade your doctor that you'd "lack access to antibiotics via other timely dispensing mechanisms." I suggest reading him the part about how the Postal Service will carry out the distribution.

If that doesn't convince him, maybe you need a smarter doctor.

Photo credit: http://www.flickr.com/photos/hukuzatuna/2536746395/

Sonia Arrison, Guest-Blogging

(Eugene Volokh)

I'm delighted to report that Sonia Arrison will be guest-blogging this coming week about her new book, 100 Plus: How the Coming Age of Longevity Will Change Everything, From Careers and Relationships to Family and Faith. "Humanity is on the cusp of an exciting longevity revolution," Sonia's site says. "The first person to live to 150 years has probably already been born." I certainly hope she's right, and I much look forward to her posts.

Justice Breyer on Tenure Standards at Harvard Law School in the Late 1960s

(Orin Kerr)

In the latest George Washington Law Review, Justice Stephen Breyer has an interesting reflection on writing his first law review article when he was a professor at Harvard in the late 1960s. It's an interesting essay on what he was trying to say and why he wrote that article, but I was struck most by what Breyer says about Harvard's tenure standards forty years ago. The article was published as The Uneasy Case for Copyright, and here's Justice Breyer on the experience of writing it:

Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that's not a pleasant stage. "How can I possibly write an article?" Everyone goes through that. Oh, they all think that I can, but they do not really understand.

Well, there it was, and moreover, they had a very exalted idea of themselves at Harvard and so it had to be a pretty good article. And I didn't know a thing about copyright—although that's exactly the kind of thought I couldn't dwell on, because it would lead to the temptation to give up.

. . . . One of the less pleasant days of my life was after I'd handed [Dean] Derek Bok my 200-page manuscript to give to the Appointments Committee. He came back and said, "You know, when you write something"—and I didn't like the tone of his voice—"sometimes it's worth going over it again before handing it in. Marshal your arguments," he said, "and use the most interesting points, but do not put in all the less interesting ones." And that was very good advice. So what ended up being published as The Uneasy Case for Copyright was the expurgated version of something that had all kinds of rambling in it.

The world in which Harvard raised tenure standards by requiring law professors to write a single article to receive life tenure — and in which the author saw writing the one article as an enormous challenge — is hard to image today. These days, candidates generally need to have written at least one major article just to get a tenure-track teaching job at any school.

On the Ground Intelligence in the Drone Counterterrorism Campaign

(Kenneth Anderson)

Eli Lake and John Barry at the Daily Beast sum up the Obama administration's counterterrorism-on-offense doctrines.  Of particular interest is this paragraph stressing the largely unmentioned role of on-the-ground intelligence gathering and operations in order to make possible targeted strikes:

And while the drones are the most outward signs of the covert campaigns that rage from the Horn of Africa to Pakistan, it is the nearly invisible troops on the ground—both U.S and allied special forces—who are gathering the intelligence, making eyes-on confirmation, and directing the strikes with remarkable precision.

Will Jeff Bezos Bring Feudal Security to the Net?

(Stewart Baker)

The Kindle Fire is a remarkable innovation in the Apple mold:  taking a bunch of components that are pretty well known and combining them into a powerful new experience.  But unlike Apple, Amazon's integrating vision isn't visual design or even user delight.  Instead it's far more ambitious — a new vision of the entire Internet ecosystem.

OK, let me try that again without the Valley babble.  The Kindle Fire forks Android into an Amazon-designed and Amazon–controlled operating system.  So far, no surprises. Amazon owns and subsidizes the hardware, too, so it can design features that integrate operating system and processor tightly.  Again, nothing that Apple can't do.  But then comes the clever, almost-new idea:  Fire uses its own browser, called Silk, which is designed to work with Amazon's massive cloud computer. So instead of downloading web pages one after the other and opening them on your computer, Amazon's cloud stores and even opens them, sending you the end result.  This allows speedier downloads for a couple of reasons:  Caching of popular pages (or even parts of pages) avoids download delays when the original source is overloaded; and Amazon's cloud can handle even the most processor-intense pages instantaneously, far faster than your wheezing desktop machine.  In short, your Internet experience on the Fire ought to be lightning quick.

There's another advantage to this new vision of what might be called the Bezosnet.  The Bezosnet ought to be a lot more secure.  One way that hackers compromise your machine is by getting you to go to malware infected sites.  Just visiting the site triggers routines that take over the visitor's computer.  But if the routine runs, not on a visitor's computer but in a virtual environment at Amazon's data center, the attacker's code isn't likely to work.

In fact, it looks to me as though Amazon has a remarkable security opportunity here.  It controls the Fire hardware, the Fire operating system, and the Fire user's internet connection. If a Fire tablet joins a botnet, Amazon will know immediately. It can quarantine the tablet and alert the owner.  Indeed, it can go further, performing diagnostics to figure out and remedy the security flaw the botnet exploited. If a Fire tablet starts sending beacons or massive encrypted data files to a Chinese controller site, Amazon can spot the pattern and alert the user or even block the transmissions.  No one else, not even Apple, maybe not even DoD, will have the same ability to drive security into all parts of the Internet ecosystem.

If Amazon exploits its security opportunity, this could be transformative for users. To take one example, most people are, or should be, wary about Internet financial transactions.  Small businesses that do electronic funds transfers are at enormous risk today.  Like consumers, their machines are easily compromised, but unlike consumers, their losses to hackers are not underwritten by the banks.  That's costing them easily hundreds of millions of dollars a year. As small businesses come to appreciate the risk, Amazon has a chance to persuade them that a dirt-cheap Amazon Fire tablet is the only safe way to access their funds.

Competitively, that could put Amazon squarely in the stream of high-value Internet transactions.  Maybe it becomes a bank.  Maybe it forces Mastercard and Visa to give it a discount because fraud on Amazon-mediated transactions is lower. Maybe it takes on Google's relationship with advertisers, since now Amazon has insight into information advertisers really want:  what are consumers actually buying and how much are they paying? Maybe it kills the prospects of ISPs and telcos hoping to transcend dumb pipe status and exploit their direct connection to consumers; that connection won't be much use if Amazon controls and can encrypt the entire stream of communication.

For consumers, the Fire opens up a prospect of feudal security on the Internet.  We already know that we can't protect our own machines from attack. For all the talk of insecurity in the cloud, it's almost certainly more secure than the decentralized system we have now. To take one example, I have a lot more faith in Google's ability to protect my gmail account than in the ability of my system administrator to do the same for my corporate account.  And I have more faith in Amazon's ability to spot malware infested websites than in my ability to do the same, even with help from Google and antivirus software. Yes, you're putting all your eggs in one basket, but you're also hiring someone to guard that basket while you get on with life. Sooner or later, to get security, it looks as though we're all going to have to pick a liege lord and shelter under his castle walls. And now Amazon has an chance to build the first string of forts and castles across the most desirable territory.

Of course, where there's feudalism, there's droit de seigneur. The price for security will be, probably must be, a loss of privacy, anonymity, and control to Amazon.  Right now, Amazon's terms of service provide some contractual anonymity to users, but as a technical matter Amazon has total visibility into everything that happens on a Fire tablet.  That visibility is very likely necessary for security, and it is damn sure valuable for commercial purposes.  So it's hard to imagine that it won't be used for both purposes.

I can hear the privacy Luddites cranking up their outrage machinery now.  As usual, they'll be a day late.  But they'll also be a dollar short, at least if I'm right that the alternative to sheltering under Amazon's walls is living out on the plains alone, at the mercy of marauders. No one will thank the data protection authority that saves us from Amazon by pushing us into the arms of the Russian Business Network. What the authorities can do is police Amazon's terms of service and perhaps hold Amazon to any promises of security with tough new liability rules.  But, like Regulation Z, which declares that credit card fraud can't cost US consumers more than $50, a rule imposing liability on Amazon for Internet security breaches could turn out to be an enormous market advantage (not to mention a tough barrier to entry for imitators).

All in all, then, the Fire Tablet is potentially a very big deal.  Too bad I'm too cheap to buy one.

(As always when I get into the details of security technology, I do so with considerable humility about my grasp of, well, actual technical details. This is technology poetry, not prose, and a first draft of the poetry at that. I welcome technical corrections. )

Cherub Choir Rules

(Kenneth Anderson)

[image error]

A musician friend with a gig at a local church posts this photo of the rules for the children's Cherub Choir, which strike me as pretty good rules for life.  (Comments open.)

Farewell to Terry Francona

(Ilya Somin)

The Red Sox and manager Terry Francona have decided to end their relationship in the wake of the teams' painful September collapse. Despite the disappointing end to his tenure with the team, Francona will surely be remembered as the most successful Red Sox manager in almost a century, if not ever. During his eight years with the team, the Sox made five playoff appearances and won two world championships. Most important of all, they put an end to the Curse of the Bambino and repeatedly vanquished the Yankees. Even this year, they went 12–6 against them.

Francona was not a great tactical innovator like Earl Weaver or Tony LaRussa. But he still impressed me with his skill, as I followed the team closely during his tenure. His single greatest virtue was avoiding dumb mistakes. He rarely if ever lost a key game by doing something stupid. This is an underrated quality. Sabermetric analysis shows that it is much more common for managers to lose games by making foolish errors than to win them with some brilliant insight. Just ask Francona's predecessor Grady Little, who provided a textbook example of the former in Game 7 of the 2003 American League Championship Series. Francona avoided those kinds of mistakes, in part because he was open to the use of sabermetric statistical analysis to guide his decisions.

Francona's other great virtue was the way he handled the insane media circus surrounding the Red Sox and managed to work with the difficult personalities of some of the team's stars. It is often said that the manager of the Red Sox gets more media and public scrutiny than the governor of Massachusetts or the mayor of Boston. No Red Sox manager in my lifetime handled it better than Francona. It also wasn't easy for him to deal with petulant stars like Manny Ramirez. But he almost always managed it well.

Much ink will be spilled this winter over the causes of the Red Sox' collapse this year. After going an MLB– best 81–42 over the previous several months, the team frittered away a possible division title and a 9 game lead in the wild card race by posting an abysmal 7–20 record in September. Having watched many of those games, I saw few tactical mistakes by Francona. Generally speaking, he picked the right players to use in each situation, given the available personnel. The team failed partly because of bad luck (they lost more than their share of close games that could have gone either way), partly because of injuries to key players (e.g. — Kevin Youkilis), and most importantly because too many players performed far below their usual standards, especially the pitchers. It's hard to say how much blame Francona deserves for the latter factor. Probably at least some. But, on the other hand, veteran players like the Red Sox' key stars should be able to motivate themselves. Ultimately, there is more than enough blame to go around. Francona, the players, and upper management will all get their share.

Regardless of what happened this year, Francona's overall legacy is one of extraordinary success. Red Sox Nation owes him a great debt. After the immediate pain of this fall wears off, I think Boston fans will remember that. We should also remember what happened the last two times Boston teams suffered a painful collapse (the Red Sox in 2003 and the Bruins in 2010). In both cases, they won championships the very next year and also got revenge on those teams that defeated them the year before. So may it be with the Red Sox in 2012.

New York Times Room for Debate Forum on West Hollywood's Ban on the Sale of Fur

(Ilya Somin)

A few days ago, I was asked to participate in the New York Times Room for Debate forum on West Hollywood's recent enactment of a law banning the sale of fur clothing. Here is an excerpt from my contribution:

West Hollywood's ban on the sale of fur clothing is ultimately trivial because it will have little effect. Local residents who want to buy fur coats will simply drive to a neighboring town. Nonetheless, the law will raise an important constitutional issue: Whether it is permissible for the state to ban an economic transaction that does not harm any person or pose a threat to the community.

Under current Supreme Court precedent, the government can ban or restrict virtually any economic activity so long as there is some "rational basis" for the law, which could be almost anything. The Court even allows the government to make up justifications after the fact that the legislature did not consider when it enacted the regulation.

This highly permissive approach has allowed state and local governments to enact numerous laws that benefit organized special interests at the expense of the general public.....

In recent years, some federal courts have begun to recognize that the Fourteenth Amendment's protection for "liberty" should have at least some teeth in economic liberty cases. There is growing recognition that economic freedom was one of the most important rights that the framers of the amendment sought to protect....

If the [West Hollywood] law is challenged, judges will probably conclude that there is at least some "rational basis" for it, such as the need to protect fur-bearing animals from overhunting....

Nonetheless, the debate over this case and others like it could help increase public awareness of the need to enforce constitutional protections for economic liberty.

Because I had only about 300 words to work with, I chose to address the constitutional economic liberty aspect of this issue, while leaving the animal rights question to other participants in the forum. For what it's worth, my general view is that most animals (with the exception of highly intelligent primates, whales, and a few others) do not have rights that are binding on humans. However, for reasons I described here, I have some doubts about the validity of my view. It could be that my judgment on this issue is corrupted by self-interest — not because I particularly like fur clothing, but because I love eating meat. And if it is wrong to kill animals to make (nonessential) clothing, it seems equally wrong to kill them for the purpose of eating them if doing so isn't necessary for our own survival. A possible way out of the dilemma is to conclude that killing animals for food or clothing is moral so long as we do so in ways that aren't "cruel." But it seems to me that any animal that has a right to be free of human-inflicted pain would also logically be entitled to a right to life.

None of this changes my view of the West Hollywood law. Even if animals are entitled to greater rights than I currently believe, that law still restricts economic liberty without providing any real benefits to either animals or humans. But the broader question of animal rights is a genuinely difficult moral issue that I continue to struggle with.