Eugene Volokh's Blog, page 2748

Prof. Mitch Berman (University of Texas) Guest-Blogging

(Eugene Volokh)

I'm delighted to report that Prof. Mitch Berman of the University of Texas School of Law will be guest blogging next week about his new Georgetown Law Journal article, Let 'em Play: A Study in the Jurisprudence of Sports. The article is the latest in a broader literature on how rules work within institutions and communities, even when those rules are not directly enforced by a government-run legal system, and what this understanding of such private ordering might tell us about law more broadly; Prof. Berman's piece strikes me as an especially interesting take on the matter. Here's an excerpt from the abstract:

Serena Williams was eliminated in the semifinals of last year's U.S. Open when, having lost the first set and down 5–6 in the second, she was called for a second-serve foot fault that made it match point for Belgium's Kim Clijsters. Williams's explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams's outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport's rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.

Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to "let 'em play" or to "swallow the whistles" in crunch time, while other observers wonder how such a practice could possibly be justified.

This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials -– the common sayings "no harm, no foul" and "it cost us the game"; the material breach doctrine from contract law and tort law's "lost chance" doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more.

Smelly and Tasty

(Eugene Volokh)

Back in 2002, I asked: "Why is 'tasty' good but 'smelly' bad?" Now there's a linguistic attempt to answer this, in a book chapter titled — I kid you not — A Note on an Asymmetry in the Hedonic Implicatures of Olfactory and Gustatory Terms. The author's main explanation seems to be,

[T]he things that we taste and the things that we smell differ systematically in how pleasant and unpleasant they are. The reason is that we have generally more control over what we put into our mouth than what enters our nose. If one guiding principle of our behavior is the maximization of pleasure, and if there are roughly equally many pleasant and unpleasant smells and tastes available, then we should draw more pleasure out of the sense that we can control, than out of the sense that we cannot control as easily. Consequently, what we taste will be more likely pleasant than what we smell.

Thanks to Prof. Kai von Fintel (Language Log) for the pointer.

Audio of My Debate with Bryan Caplan on Libertarianism and Foreign Policy is Now Available

(Ilya Somin)

The audio of my debate with economist Bryan Caplan on libertarianism and foreign policy is now available here. Thanks to Chris Baylor for organizing and producing the audio, and to Bryan for posting it.

Note that I had trouble downloading the file from Mozilla Firefox, but was able to download it easily using Internet Explorer.

"Accountability" as "Legitimacy" for International NGOs

(Kenneth Anderson)

I have a new essay up at SSRN, "Accountability" as "Legitimacy": Global Governance, Global Civil Society and the United Nations.  It appears in the new issue of the Brooklyn Journal of International Law, a special symposium on accountability and international NGOs, at which I was privileged to present last fall.  The conference was excellent and so is the full published symposium.  Below the fold, I put a bit of the introduction, a part that introduces three distinct notions of accountability in the international NGO setting.

First, NGOs are institutions that offer greater or lesser degrees of ac– countability in an “"internal”" sense——an internal “"governance”" sense. In other words, the accountability that would be relevant to any organization in its fiduciary governance, but particularly fiduciary institutions of a nonprofit nature that also owe obligations of public trust. These obligations of accountability include, to start with, mechanisms to account for the stewardship of funds, fidelity to the mission for which those funds were conveyed, and the range of often quite technical accountability issues that go along with the classic fiduciary duties of care and loyalty, as well as (in the case of a charitable organization) some duty of transparency.

These “"internal”" forms of accountability ensure stewardship of re– sources toward a mission, and they can be satisfied——indeed, really can only be satisfied——through expert and technical ministration by auditors, accountants, lawyers, and others. There is a further important question, as papers in the Brooklyn Symposium note in detail, as to whom those “"internal accountability”" monitors should themselves be accountable. For example, in the transborder NGO arena, to which country’'s regulators must monitors answer? Those giving aid assistance, or those receiving it, or both? Since presumably no one favors embezzlement of NGO funds, and more broadly everyone favors accountability in the sense of stewardship toward a declared mission, this form of accountability is largely instrumental and not contested, even if the role of the government regulator raises important questions of political governance in a world in which NGOs cross borders.

A second form of accountability, however, might be thought of as “"external”" accountability. It is explicitly about the relationship of NGOs to the globalized world in a political sense——the accountability of their role as political actors, both to whom they ought to be accountable, and who ought to be accountable to them——in each instance an open and contested question. This is the question of whether NGOs claim, and by some actor are conveyed, a role in political governance of a kind that hithertofor might have thought to attach to governments and their governed peoples. If, as has often been claimed during the last twenty or so years, NGOs act as “"stand in”" representatives of the “"peoples”" of the world before international organizations, in what sense and to whom are they accountable, if they now stand alongside or supplant states in this role? And in what sense are these international organizations to account to NGOs, why, on what basis, and what principle of justification, if at all?

This Essay addresses itself to this second, “"external,”" sense of accountability. As a consequence, it does not focus very much on the first sense of accountability, in large part because it is in agreement that the first sense of accountability is crucial and indisputable as a proposition, even if there is much useful discussion to be had as to forms. Mechanisms to enforce the basic rules of internal fiduciary accountability are essential for any organization, for profit, non-profit, or governmental alike. Whereas the most contested issues for cross-border NGOs and accountability at this moment arise from this second sense, the political, external sense of accountability, without in any way slighting the enormous importance of the often highly technical work around the standards, rules, regulations, laws, and best practices for internal accountability.

Yet at least in passing, note that there is a third question of accountability that has not received sufficient attention. It particularly attaches to those NGOs taking human rights and such “"values”" issues as their subject matter——those NGOs devoted to questions of international morality, whether framed as human rights law, politics, or some other way. This third question of accountability asks whether (and if so under what circumstances) an NGO actor making pronouncements and offering judgments of law and morality (judgments, for example, on the law of war applied to terrorism situations, or calls for forcible humanitarian intervention by states or international governmental organizations) should be called to “"account”" for its judgments, given that it has no “"skin in the game.”" One way in which human rights NGOs, in particular——though it can be seen to extend to other issues and NGOs as well——might be de– scribed as “"unaccountable”" is the relative ease with which entities with no direct stake may call for others to act. It is natural, irresistible even, to ask to whom “"accountability”" is owed by the NGO that is responsible for the safety of no population, no territory, has no governance responsibilities and yet freely calls for many sweeping things, including the expenditure of blood and treasure. God? Kant? The Categorical Imperative?

You Don't Need a Weatherman to Know Which Way the Wind Blows,

(Eugene Volokh)

and "no witness with a degree in scatology was required, nor was scientific testing required to establish the fact the
substance was feces," at least on the facts of this particular case (State v. Landis (Iowa Ct. App. July 13, 2011)). Thanks to How Appealing for the pointer.

UPDATE: I neglected to blog this line from the opinion, but commenter "a clerk" reminded me:

[I]t would be a rare person who had no personal experience with feces.

DC Circuit Holds that New Airport Screening Security Measures Comply With the Fourth Amendment

(Orin Kerr)

The new airport screening measures involving millimeter wave technology and backscatter technology — together with the opt-out of a pat-down — have received a great deal of public attention. Back when the new measures were first widely introduced, I blogged about why a Fourth Amendment challenge to the new practices was an uphill battle. Today, the DC Circuit handed down an opinion in EPIC v. Department of Homeland Security holding that the new practices comply with the Fourth Amendment. I believe this is the first clear court ruling on the question, and it's certainly the first from a federal court of appeals. The opinion is by Judge Douglas Ginsburg, and it was joined by Judges Henderson and Tatel. From the opinion:

[T]he petitioners argue that using [Advanced Imaging Technology] AIT for primary screening violates the Fourth Amendment because it is more invasive than is necessary to detect weapons or explosives. In view of the Supreme Court's "repeated[] refus[al] to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment," City of Ontario v. Quon, 130 S. Ct. 2619, 2632 (2010) (internal quotation marks omitted), and considering the measures taken by the TSA to safeguard personal privacy, we hold AIT screening does not violate the Fourth Amendment.

As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an "administrative search" because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack. See United States v. Aukai, 497 F.3d 955, 958–63 (9th Cir. 2007) (en banc) (passenger search at airport checkpoint); United States v. Hartwell, 436 F.3d 174, 178–81 (3d Cir. 2006) (Alito, J.) (same); United States v. Edwards, 498 F.2d 496, 499–501 (2d Cir. 1974) (Friendly, J.) (carry-on baggage search at airport); see also Illinois v. Lidster, 540 U.S. 419 (2004) (police set up checkpoint to obtain information about earlier crash); Mich. Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint). An administrative search does not require individualized suspicion. City of Indianapolis v. Edmond, 531 U.S. 32, 41, 47–48 (2000) (individualized suspicion required when police checkpoint is "primarily [for] general crime control," that is, "to detect evidence of ordinary criminal wrongdoing" unlike "searches at places like airports ... where the need for such measures to ensure public safety can be particularly acute"). Instead, whether an administrative search is "unreasonable" within the condemnation of the Fourth Amendment "is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." United States v. Knights, 534 U.S. 112, 118–19 (2001) (internal quotation marks omitted).

That balance clearly favors the Government here. The need to search airline passengers "to ensure public safety can be particularly acute," Edmond, 531 U.S. at 47–48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

Contrary to the EPIC's argument, it is not determinative that AIT is not the last step in a potentially escalating series of search techniques. In Hartwell, from which the petitioners tease out this argument, the Third Circuit upheld an airport search that started with a walk-through magnetometer, thence to scanning with a hand-held magnetometer and, when the TSA officer encountered a bulge in the passenger's pocket, progressed (according to the passenger) to the officer's removing a package of crack cocaine from that pocket. 436 F.3d at 175–76. The court noted, however, that its opinion, while describing the search at issue there as "minimally intrusive," did "not purport to set the outer limits of intrusiveness in the airport context." Id. at 180 & n.10. Nothing in Hartwell, that is, suggests the AIT scanners must be minimally intrusive to be consistent with the Fourth Amendment.

It's a bit surprising, given the public controversy, that the analysis here was so sparse. It seems that Judge Ginsburg didn't even think it required any heavy lifting — just a quick paragraph or two. And notably, no one wrote separately. That's particularly interesting given that this opinion is from a pretty Fourth-Amendment-rights-friendly panel: Note that Judge Ginsburg authored the recent Maynard decision holding that GPS surveillance requires a warrant, which also was joined by Judge Tatel.

It is also worth noting that another part of the same decision sends back the DHS rule on procedural admin law grounds, so the ultimate ruling is a partial victory for the challengers to the new policy. I see that Eugene has just blogged on that issue below, so please post any comments relating to the non-Fourth Amendment parts in the thread attached to Eugene's post.

Thanks to Adam White for the link.

D.C. Circuit on the New "Advanced Imaging Technology" Airport Searches

(Eugene Volokh)

From Electronic Privacy Information Center v. United States Department of Homeland Security (D.C. Cir., decided this morning):

The Electronic Privacy Information Center (EPIC) and two individuals petition for review of a decision by the Transportation Security Administration to screen airline passengers by using advanced imaging technology instead of magnetometers. They argue this use of AIT violates various federal statutes and the Fourth Amendment to the Constitution of the United States and, in any event, should have been the subject of notice-andcomment rulemaking before being adopted. Although we are not persuaded by any of the statutory or constitutional arguments against the rule, we agree the TSA has not justified its failure to issue notice and solicit comments. We therefore grant the petition in part....

To sum up, first, we grant the petition for review insofar as it claims the TSA has not justified its failure to initiate notice-and-comment rulemaking before announcing it would use AIT scanners for primary screening. None of the exceptions urged by the TSA justifies its failure to give notice of and receive comment upon such a rule, which is legislative and not merely interpretive, procedural, or a general statement of policy. Second, we deny the petition with respect to the petitioners' statutory arguments and their claim under the Fourth Amendment, except their claim under the [Religious Freedom Restoration Act], which we dismiss for lack of standing. Finally, due to the obvious need for the TSA to continue its airport security operations without interruption, we remand the rule to the TSA but do not vacate it, and instruct the agency promptly to proceed in a manner consistent with this opinion.

UPDATE: I see Orin is working on a post about the Fourth Amendment issues, which I expect will be up very shortly. Please limit comments in this post to the administrative law questions and the other non-Fourth-Amendment questions. Please save the Fourth Amendment comments for Orin's post. Thanks!

The Truth About the Auto Bailouts

(Todd Zywicki)

I'll be on the Doug Urbanski radio show today at about 2:30 talking about my column from the other day "The Truth About the Auto Bailouts."  If you don't have his show in your market you can listen live on-line at his website.

An Incompetent Attack on a Judge's Competence

(Ilya Somin)

In the recent Texas cheerleader case, the US Court of Appeals for the Fifth Circuit not only rejected the cheerleader's flimsy sexual harrassment claim, but also rebuked her lawyers for their "unprofessional" attack on the competence of the federal magistrate judge who had made the initial lower court ruling on the case. The lawyers' brief included the following passage on this issue:

The Magistrate's egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches' Section 1983 claims and summarily dismissed them withoutanalysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.

The Fifth Circuit was not impressed:

These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney's decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys' attack on Magistrate Judge Stickney's decisionmaking is reprehensible....

Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word "principals" should have been "principles." The word "vacatur" is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject ("incompetence") and a plural verb ("are"). Magistrate Judge Stickney is referred to as "it" instead of "he" and is called a "magistrate" instead of a "magistrate judge." And finally, the sentence containing the word "incompetence" makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term "incompetence" is used here, because the only thing that is incompetent is the passage itself.

As a general rule, it isn't good strategy for lawyers to question a judge's competence. But if you absolutely have to do it, don't do it in a way that makes you seem incompetent yourself.

CONFLICT OF INTEREST WATCH: I clerked for Judge Jerry E. Smith, the author of the Fifth Circuit opinion, back in 2001–2002.

"Father Shall Take Down That Web Site and Shall Never on Any Public Media Make Any Reference to Mother At All,"

(Eugene Volokh)

"nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than 'happy birthday' or other significant school events." That's the text of a judge's oral order in Morelli v. Morelli, No. A06-04–60750-C (Diane Gibbons, J., Bucks Cty., Pa. June 6, 2011). If the father says anything about the mother in public, he could be sent to jail for contempt of court. The order isn't limited to banning libelous statements (though I think even such a much narrower ban would itself pose constitutional problems, especially under Pennsylvania law), nor is it even limited to statements about minor children (though even that sort of order strikes me as constitutionally impermissible). Rather, the court order categorically orders the removal of a Web site, and prohibits all public statements — factually accurate or not — by one person about another person.

That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts' authority to protect children's best interests might be, it can't extend to criminalizing one adult's public speech about another adult. I'm pleased that the order is being appealed, and hope it will be quickly reversed. A relatively old (Jan. 5, 2010) archive of the web site that triggered this order, http://www.thepsychoexwife.com, is available on archive.org.