Eugene Volokh's Blog, page 2710
September 16, 2011
John Brennan National Security Speech at Harvard Law School
A few hours ago at a conference on national security sponsored by Harvard Law School and the Brookings Institution (as part of a new partnership on law and security issues), the White House's senior counterterrorism official, John Brennan, gave what Marty Lederman calls the "most comprehensive single statement of the Obama Administration's policies and practices with respect to al Qaeda and other terrorist threats." I agree. Marty posts the speech at Opinio Juris, highlighting the most important parts. It is worth reading, and you'll likely hear about it in the leading papers tomorrow. Of particular interest to me was his statement on the nature of the conflict with Al Qaeda, in part given what I've written in the past few months about "how we came to debate a legal geography of war":
Nature and geographic scope of the conflict
First, our definition of the conflict. As the President has said many times, we are at war with al-Qa'ida. In an indisputable act of aggression, al-Qa'ida attacked our nation and killed nearly 3,000 innocent people. And as we were reminded just last weekend, al-Qa'ida seeks to attack us again.
Our ongoing armed conflict with al-Qa'ida stems from our right—recognized under international law—to self defense.
An area in which there is some disagreement is the geographic scope of the conflict. The United States does not view our authority to use military force against al-Qa'ida as being restricted solely to "hot" battlefields like Afghanistan. Because we are engaged in an armed conflict with al-Qa'ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa'ida and its associated forces without doing a separate self-defense analysis each time.
And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.
That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state's sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.
Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the "hot" battlefields. As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa'ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an "imminent" threat.
In practice, the U.S. approach to targeting in the conflict with al-Qa'ida is far more aligned with our allies' approach than many assume. This Administration's counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa'ida and its associated forces. Practically speaking, then, the question turns principally on how you define "imminence."
We are finding increasing recognition in the international community that a more flexible understanding of "imminence" may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts. After all, al-Qa'ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks. Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties.
Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an "imminent" attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.
The convergence of our legal views with those of our international partners matters. The effectiveness of our counterterrorism activities depends on the assistance and cooperation of our allies—who, in ways public and private, take great risks to aid us in this fight. But their participation must be consistent with their laws, including their interpretation of international law.
Again, we will never abdicate the security of the United States to a foreign country or refrain from taking action when appropriate. But we cannot ignore the reality that cooperative counterterrorism activities are a key to our national defense. The more our views and our allies' views on these questions converge, without constraining our flexibility, the safer we will be as a country.
The Whole Constitution Pledge
Here's the Constitutional Progressives' "Whole Constitution Pledge" that various liberal groups are asking people to sign:
The Whole Constitution Pledge
Through the Constitution, "We the People" created the most enduring government charter in world history.
Building on the achievements of the Founding generation, successive generations of Americans have created a "more perfect union" through constitutional Amendments. These Amendments have improved our Constitution by ending slavery, enshrining guarantees of equality and citizenship, expanding the right to vote, and ensuring that the national government has the power and resources necessary to protect the nation, address national challenges and secure civil rights.
Some have advocated repeal of Amendments, including the 14th Amendment, the 16th Amendment, and the 17th Amendment, that make our Constitution better and this country great. Some have even failed to heed the lessons of the Civil War and the Civil Rights Movement and have advocated a return to ideas of secession and nullification.
I believe that our Constitution has been improved by the Amendments adopted over the last 220 years.
I pledge to support the whole Constitution.
But, as Ed Whelan points out, Article V is part of the "whole Constitution," too — indeed, the part that helped bring about the Amendments that the pledge authors so praise. So I should say that I pledge to support the whole Constitution, including the provision that allows repeal of those provisions that were enacted by yesterday's Americans but that today's Americans choose to revise through the constitutionally prescribed means. As to which particular provisions should be kept and which should be repealed, I make no pledges.
Felons' Right to Keep and Bear Arms in Colorado
Yesterday's People v. DewItt (Colo. Ct. App.) illustrates a very different approach to the right to keep and bear arms under the Colorado Constitution than has been used under the U.S. Constitution (and other state constitutions):
On the morning of September 18, 2009, defendant walked from his apartment to a nearby King Soopers to buy groceries. He paid at a self-checkout cash register, and when he did not receive discounts on certain items, he went to the customer service counter to demand a refund. Defendant yelled at the employees on duty, used profanities, and paced in such a manner that his handgun, worn under his jacket in a holster, was visible. He continued this aggressive behavior for several minutes, prompting one employee to call 911 to report the disturbance.
When the police arrived, they checked defendant's criminal record. They arrested him for POWPO when they learned that he was a twice convicted felon — in 1985, he pleaded guilty to giving false information to a pawnbroker, and in 1988, he pleaded guilty to attempted distribution of a controlled substance.
Defendant was ultimately charged with two POWPO [possession of a weapon by a previous offender] counts and one menacing count based on the King Soopers incident. The menacing count was dismissed on the morning of trial, and defendant was convicted by a jury of the POWPO counts. The trial court sentenced him to a six-month prison term for each count, to run concurrently, and this appeal followed....
[T]he trial court erred by refusing to give [defendant's] tendered jury instructions regarding the affirmative defense of the right to bear arms. We agree.
Under the Colorado Constitution, a person has the right "to keep and bear arms in defense of his [or her] home, person and property." Colo. Const. art. II, § 13; see People v. Blue, 190 Colo. 95, 103, 544 P.2d 385, 391 (1975). [Footnote: Defendant expressly bases his contention solely on article II, section 13 of the Colorado Constitution. Accordingly, we need not address any issues regarding the Second Amendment to the United States Constitution.] Thus, a defendant charged with POWPO may raise as an affirmative defense that he or she possessed a weapon for the constitutionally protected purpose of defending his or her home, person, or property. People v. Ford, 193 Colo. 459, 462, 568 P.2d 26, 28 (1977); see also CJI-Crim. 7:63 (1993). As long as there is competent evidence in the record of a constitutionally protected purpose, a defendant is entitled to such an affirmative defense, and it will be for the jury to decide the issue of the defendant's purpose in possessing the weapon.
A defendant need only present "some credible evidence" in support of the affirmative defense, which is another way of stating the "scintilla of evidence" standard. The evidence necessary to justify an affirmative defense instruction may come solely from the defendant's testimony, however improbable. If the defendant meets this standard, the prosecution then has the burden to disprove the affirmative defense beyond a reasonable doubt....
Based on our de novo review of the record in this case, we conclude defendant's testimony was sufficient to support the tendered affirmative defense instructions on his constitutional right to bear arms. Defendant testified that he regularly walked from his apartment to the King Soopers in question armed with his handgun. When asked for his reason for purchasing and carrying the gun, including on the morning of his arrest, defendant testified several times that it was for "self-defense." He also stated that he had "concerns for [his] personal safety" and for his "property," both in his home and in his neighborhood. According to defendant's testimony, he was aware of reports of recent muggings at the King Soopers, and he had "seen some things in [his] own neighborhood that just ... put the alert on, put [him] in a code yellow ... more of an alert status, where [he] used to be more relaxed and never worried about anything." In addition, defendant testified that someone had attempted to break into his apartment twice in 2009. Thus, defendant not only testified to a general fear for his personal safety, but also tied his fear to specific trends of violence and incidents in the areas where he regularly walked and in the stores that he regularly visited, including the King Soopers store.
Viewing this testimony in the light most favorable to defendant, we conclude it constitutes some credible evidence that he carried his handgun for the constitutionally protected purposes of defending his person and his property.
This case is distinguishable from People v. Barger, 732 P.2d 1225, 1226 (Colo. App. 1986), relied on by the People and by the trial court in its ruling. In Barger, the defendant chose to carry a gun into a bar, but there was no evidence in the record that he reasonably feared for his safety on his way to the bar or in the bar itself....
As the citation to the 1977 Colorado Supreme Court case People v. Ford shows, this doctrine isn't new in Colorado; but I hadn't seen the Ford doctrine much referred to recently. This case makes clear, though, that this interpretation of the state constitutional right to keep and bear arms is still being followed in Colorado. For the one other recent state appellate case recognizing some felons' right to keep and bear arms, see this discussion of Britt v. State (N.C. 2009), though the right secured there seems much narrower than the one secured by DeWitt (and Ford) in Colorado.
Of course, felons in Colorado get only limited benefit from this ruling, because they are still generally barred by federal law from possessing a gun, and the Colorado Constitution doesn't affect the application of that federal law. But in practice, a defense against a state prosecution remains useful even if it won't work against a federal prosecution, because many such felon-in-possession cases are brought only under state law by state prosecutors (since there are many more such prosecutors in Colorado than federal prosecutors).
Federal Child Labor Laws and the Constitution
Nearly 100 years ago, the Supreme Court declared federal child labor laws unconstitutional in a case called Hammer v. Dagenhart. Twenty-two years later, the Court recognized that Hammer's holding was "novel when made and unsupported by any provision of the Constitution," and unanimously overruled this erroneous decision. Sen. Lee, however, believes that, while Hammer might "sound harsh," the Constitution "was designed to be that way. It was designed to be a little bit harsh," and thus we should return to the world where federal child labor laws are unconstitutional.
CAP goes on to point out that Clarence Thomas's understanding of the Commerce Clause would render broad federal child labor laws unconstitutional.
Shocking! Or maybe not so much. As I pointed out recently, by the time Hammer was overruled in the late 1930s
every one of the forty-eight states had laws banning [for younger kids] and regulating [for older teens] child labor. Unlike the national Fair Labor Standards Act passed in 1938, most of these laws restricted children under fourteen, as opposed to sixteen, though a sixteen-year rule was gradually gaining traction.
And that was seventy-plus years ago; assumedly, the laws would have gotten stricter over time. Federal child labor laws, in short, were a solution in search of a problem. But they have served a useful purpose–providing an easy rhetorical device for those who oppose any meaningful constitutional limits on federal power.
Senate Judiciary Committee Passes Amendment to Prohibit Prosecutions for Terms-of-Service Violations
on the good news from yesterday's Senate Judiciary Committee hearing markup of amendments to the Computer Fraud and Abuse Act: .
Legal scholar Orin Kerr wrote an alarming op-ed in the Wall Street Journal yesterday, warning people that "faking your name on Facebook could be a felony" when the law is changed. But a lot changed since yesterday morning. An amendment was added to the bill during a Senate Judiciary Committee hearing Thursday morning, so that people who violate website's terms of service are not considered felons.
Senators Al Franken and Chuck Grassley proposed new language for the bill (thanks in part to Kerr's urging) to exempt those guilty only of TOS violations. Franken, in urging his fellow senators to adopt the amendment, said that without it, the following people would be felons: "A father who uses his son's Facebook password to log into his Facebook account to check his messages and photos" (ed. note: Creepy and invasive but not criminal); "a 17 year-old who claims she is 18 in order to sell her knitted scarves on Etsy," and "a struggling businessowner who secretly creates a Yelp account to give his restaurants favorable reviews" (ed. note: Again, uncool and deceptive, but not felony behavior).
The Committee then added an amendment to the bill that specifies that felony-level unauthorized access not "include access in violation of a contractual obligation or agreement, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or non-government employer, if such violation constitutes the sole basis for determining that access to a protected computer is unauthorized." The bill will now move forward to be considered by the Senate.
The amendment it here. It would amend the definition of "exceeds authorized access" in the CFAA, to the following, with the new language in bold:
the term "exceeds authorized access" means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter, but does not include access in violation of a contractual obligation or agreement, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or non-government employer, if such violation constitutes the sole basis for determining that access to a protected computer is unauthorized.
I think this is a very good fix, and would be a very important addition to the CFAA. As I read this, the language says that mere breach of a contract or warning such as a Terms of Service cannot be the basis for liability in three instances: with websites, ISPs ‚and non-government employers. So the government could still prosecute government employees who misused sensitive government databases, such as by accessing tax or social security databases for personal or nefarious reasons. On the other hand, the Government could not prosecute private sector employees for breaching private sector employer computer use restictions (as they're trying to do in United States v. Nosal, still pending in the Ninth Circuit) and they could not prosecute Internet users for Terms of Service violations (as they tried to do in United States v. Drew). The language isn't exactly perfect, as there are some minor definitional questions. But this is really a very strong effort, and I'm just delighted that the Judiciary Committee passed this.
Of course, the fact that it's out of Committee doesn't mean it has passed into law. DOJ may target this provision along the way, and there are still a number of hurdles to pass. But this is a very promising step.
Is Benzinga.com Just A Front for Plagiarists? [BUT SEE UPDATE]
For those interested in the case of my plagiarized op-ed, it seems to have jumped from the San Francisco Chronicle (where it was alleged to have been written by "Patrick Harvard," a writer at Benzinga.com, but it has just been taken down) to Yahoo News and Forbes.com, where it is now allegedly written by Jason Raznick:
Should Lying About Your Age On The Internet Be A Felony?
By Jason Raznick | Forbes – 2 hrs 49 mins agoIn 1986, Congress drafted the Computer Fraud and Abuse Act to protect government computers from malicious hacking attacks. Since its enactment, this bill has been broadened every few years, and its reach now extends far beyond hacking.
Currently, this law criminalizes computer use that "exceeds authorized access" to any computer, but violating it is only a misdemeanor. The Senate Judiciary Committee, however, met today to discuss changing the violation from a misdemeanor to a felony.
Interestingly, Raznick appears to be an actual person: He is the President of Benzinga.com, and he appeared here on CNBC advocating how great his news and opinion site is.
I should add that I'm more amused and intrigued by this than annoyed or upset. I'm interesting in seeing an apparent fraud exposed, but I don't feel particularly injured or offended that my op-ed has been plagiarized like this.
UPDATE: I've now spoken with a representative from Benzinga.com. Apparently "Patrick Harvard" is a new writer for Benzinga who is a "remote" writer, meaning that he writes in via e-mail and never appeared there, and he is also supervised by a "remote" supervisor, meaning that the supervisor was not local to the company, either. Today, after learning that "Patrick Harvard" had plagiarized the op-ed, Benzinga.com fired him and reprimanded his supervisor. The Yahoo News version that purports to be written by Benzinga CEO Jazon Raznick was picked up by Yahoo News from Forbes, where Benzinga can post content. According to Benzinga, they only have two accounts with Forbes so they regularly post items at Forbes that is not written by Raznick but appears under his name, which they claim Forbes knows and approves of. The SFGate and Forbes versions of the article have now been taken down.
September 15, 2011
Greek Debt Crisis
This is well outside of my area of expertise, but... Greece has a debt of approximately 330 billion Euro. What if the rest of the EU did the following: (a) agree to assume Greece's debt in exchange for Greece's agreement to pay, say, 80% back to the EU; (b) kick Greece out of the Eurozone? Potential banking crisis resolved, and future banking crises prevented, for 66 billion Euro, a small fraction of EU GDP. Time is bought to figure out how to resolve the inherent contradictions of having a monetary union but not a fiscal union. The big downside I can perceive is that Italy and Spain may then want the same deal.
Imitation is the Sincerest Form of Flattery, But...
I was fascinated to see this very persuasive op-ed on the Computer Fraud and Abuse Act by a Mr. Patrick Harvard that was just posted an hour ago over at SFGate.com, which as far as I can tell means it is going to be in the San Francisco Chronicle. But I fear I have read it before: It appears to be a lightly rewritten version of my op-ed in today's Wall Street Journal. The details, for those interested, below the fold.
My op-ed had a short intro and then began:
The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that "exceeds authorized access" to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.
Mr. Harvard's piece begins:
In 1986, Congress drafted the Computer Fraud and Abuse Act to protect government computers from malicious hacking attacks. Since its enactment, this bill has been broadened every few years, and its reach now extends far beyond hacking.
Currently, this law criminalizes computer use that "exceeds authorized access" to any computer, but violating it is only a misdemeanor. The Senate Judiciary Committee, however, met today to discuss changing the violation from a misdemeanor to a felony.
Hmm, that sounds familiar. Later in the article. I offered an example of a prosecution based on an extremely broad theory of the statute:
In 2009, the Justice Department prosecuted a woman for violating the "terms of service" of the social networking site MySpace.com. The woman had been part of a group that set up a MySpace profile using a fake picture. The feds charged her with conspiracy to violate the Computer Fraud and Abuse Act. Prosecutors say the woman exceeded authorized access because MySpace required all profile information to be truthful. But people routinely misstate the truth in online profiles, about everything from their age to their name. What happens when each instance is a felony?
Mr. Harvard writes something eerily similar:
In 2009, the Justice Department charged a woman with conspiracy to violate the Computer Fraud and Abuse Act. She was part of a group that set up a Myspace page with a fake picture. According to prosecutors, the woman "exceeded authorized use" because Myspace required all profile information to be truthful. Wow! So, lying on the Internet is illegal now?
How many people have used fake names on E-mail accounts, lied about their age or weight on social networking sites?
I also thought it would be helpful to talk about the CFAA civil cases:
The law even goes beyond criminal law. It allows civil suits filed by private parties. As a result, federal courts have been flooded with silly disputes. In one recent case, an employer sued a former employee for excessive Internet usage from work. The alleged offense: visiting Facebook and sending personal emails. In another case, a company posted "terms of use" on its website declaring that no competitors could visit—and then promptly sued a competitor that did.
By a strange coincidence, so did Mr. Harvard:
The law has also been expanded to allow civil suits to be filed by private parties, paving the way for hundreds of frivolous lawsuits. In a recent case, an employer sued a former employee for visiting Facebook and sending personal e-mails during work. In another case, a company posted "terms of use" on it's website, declaring that competitors could not visit the site, then promptly sued a competitor who viewed the site.
I also thought a paragraph on the wide scope of "computer" would be helpful:
Remarkably, the law doesn't even require devices to be connected to the Internet. Since 2008, it applies to pretty much everything with a microchip. So if you're visiting a friend and you use his coffeemaker without permission, watch out: You may have committed a federal crime.
You may be shocked to learn that Mr. Harvard had almost the identical idea:
The law has also been expanded so that it doesn't only apply to devices hooked up to the internet. Since 2008, it has applied to anything with a microchip in it. So, be careful using that automated vending machine at work. If you fail to follow proper procedure, you could find yourself facing federal charges.
I concluded by talking about the significance of the switch from a misdemeanor to a felony:
Until now, the critical limit on the government's power has been that federal prosecutors rarely charge misdemeanors. They prefer to bring more serious felony charges. That's why the administration's proposal is so dangerous. If exceeding authorized access becomes a felony, prosecutors will become eager to charge it.
You guessed it, so did Mr. Harvard:
Currently, the only government limitation regarding this bill is that federal prosecutors rarely charge misdemeanors. If "exceeding unauthorized access" becomes a felony, prosecutors will be more likely to pursue it.
It looks like Mr. Harvard just began posting over at Benzinga.com, which is some sort of media company that feeds content to newspapers. Does anyone want to see if his four prior efforts also share a certain resemblance to pieces posted already on the Web?
Imitation is the Sincerist Form of Flattery, But...
I was fascinated to see this very persuasive op-ed on the Computer Fraud and Abuse Act by a Mr. Patrick Harvard that was just posted an hour ago over at SFGate.com, which as far as I can tell means it is going to be in the San Francisco Chronicle. But I fear I have read it before: It appears to be a lightly rewritten version of my op-ed in today's Wall Street Journal. The details, for those interested, below the fold.
My op-ed had a short intro and then began:
The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that "exceeds authorized access" to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.
Mr. Harvard's piece begins:
In 1986, Congress drafted the Computer Fraud and Abuse Act to protect government computers from malicious hacking attacks. Since its enactment, this bill has been broadened every few years, and its reach now extends far beyond hacking.
Currently, this law criminalizes computer use that "exceeds authorized access" to any computer, but violating it is only a misdemeanor. The Senate Judiciary Committee, however, met today to discuss changing the violation from a misdemeanor to a felony.
Hmm, that sounds familiar. Later in the article. I offered an example of a prosecution based on an extremely broad theory of the statute:
In 2009, the Justice Department prosecuted a woman for violating the "terms of service" of the social networking site MySpace.com. The woman had been part of a group that set up a MySpace profile using a fake picture. The feds charged her with conspiracy to violate the Computer Fraud and Abuse Act. Prosecutors say the woman exceeded authorized access because MySpace required all profile information to be truthful. But people routinely misstate the truth in online profiles, about everything from their age to their name. What happens when each instance is a felony?
Mr. Harvard writes something eerily similar:
In 2009, the Justice Department charged a woman with conspiracy to violate the Computer Fraud and Abuse Act. She was part of a group that set up a Myspace page with a fake picture. According to prosecutors, the woman "exceeded authorized use" because Myspace required all profile information to be truthful. Wow! So, lying on the Internet is illegal now?
How many people have used fake names on E-mail accounts, lied about their age or weight on social networking sites?
I also thought it would be helpful to talk about the CFAA civil cases:
The law even goes beyond criminal law. It allows civil suits filed by private parties. As a result, federal courts have been flooded with silly disputes. In one recent case, an employer sued a former employee for excessive Internet usage from work. The alleged offense: visiting Facebook and sending personal emails. In another case, a company posted "terms of use" on its website declaring that no competitors could visit—and then promptly sued a competitor that did.
By a strange coincidence, so did Mr. Harvard:
The law has also been expanded to allow civil suits to be filed by private parties, paving the way for hundreds of frivolous lawsuits. In a recent case, an employer sued a former employee for visiting Facebook and sending personal e-mails during work. In another case, a company posted "terms of use" on it's website, declaring that competitors could not visit the site, then promptly sued a competitor who viewed the site.
I also thought a paragraph on the wide scope of "computer" would be helpful:
Remarkably, the law doesn't even require devices to be connected to the Internet. Since 2008, it applies to pretty much everything with a microchip. So if you're visiting a friend and you use his coffeemaker without permission, watch out: You may have committed a federal crime.
You may be shocked to learn that Mr. Harvard had almost the identical idea:
The law has also been expanded so that it doesn't only apply to devices hooked up to the internet. Since 2008, it has applied to anything with a microchip in it. So, be careful using that automated vending machine at work. If you fail to follow proper procedure, you could find yourself facing federal charges.
I concluded by talking about the significance of the switch from a misdemeanor to a felony:
Until now, the critical limit on the government's power has been that federal prosecutors rarely charge misdemeanors. They prefer to bring more serious felony charges. That's why the administration's proposal is so dangerous. If exceeding authorized access becomes a felony, prosecutors will become eager to charge it.
You guessed it, so did Mr. Harvard:
Currently, the only government limitation regarding this bill is that federal prosecutors rarely charge misdemeanors. If "exceeding unauthorized access" becomes a felony, prosecutors will be more likely to pursue it.
It looks like Mr. Harvard just began posting over at Benzinga.com, which is some sort of media company that feeds content to newspapers. Does anyone want to see if his four prior efforts also share a certain resemblance to pieces posted already on the Web?
Ow!
It turns out that in New York courts, "dismissed as academic" is a standard legalese phrase, meaning "dismissed as moot" or, in lay language, meaning that the particular motion or requested relief is no longer relevant to the case (or wasn't relevant to begin with). That's us academics for you.
(An example: A common formulation in appellate decisions is, "Motion for leave to appeal denied. Motion for poor person relief dismissed as academic." The "academic" means that, given that there's no leave to appeal, the motion for a right to waiver of fees because the applicant lacks money to pay them is no longer relevant.)
UPDATE: Just to make it clear, I'm well-acquainted with the normal English phrase "that's academic"; I just hadn't seen it before as a legal term of art.
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