Eugene Volokh's Blog, page 2754
July 6, 2011
Dawn Johnsen on Koh v. Yoo
Former OLC nominee Dawn Johnsen objects to Eric Posner's suggestion that Harold Koh and John Yoo are "peas in a pod" for their aggressive, politically motivated legal interpretations (albeit peas of differing ideological stripes). In her view, both Yoo and Koh are wrong, but in meaningfully different ways.
Yoo's infamous memos on torture and other subjects, you'll recall, made sweeping claims of presidential authority to act contrary to clear federal statutory commands, based on a radical view of the president's constitutional war powers. This view denies Congress the ultimate authority to prohibit torture, no matter how clearly defined, where the president as commander-in-chief deems it warranted. More, Yoo's legal claims—and the Bush administration's executive actions—were kept hidden from the public and ultimately were revealed only through government leaks.
That extreme and secret claim of a sweeping authority to violate statutes simply has nothing in common with the Obama administration's very public engagement on the meaning of a controversial provision of the War Powers Resolution: its requirement that, after 60 days, the president must terminate military action not specifically authorized by Congress. Since its enactment, interpretation of the "60-day clock" has been the subject of repeated public debate between the executive branch and Congress. Here, Obama is openly joining that debate, but expressly is not challenging Congress' legislative authority to establish limits on his conduct of war.
President Nixon vetoed the War Powers Resolution because he believed the 60-day clock interfered with the president's war powers. Congress disagreed and overrode his veto, and a published 1980 OLC opinion (correctly) found the 60-day clock constitutional. The Obama administration asserts that the 1980 memorandum remains in force and that it is not challenging the constitutionality of the War Powers Resolution. By contrast, in one of his memos, Yoo baldly states—without authority or any reference to the contrary 1980 OLC opinion—that neither this nor any other statute "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."
One key point for Johnsen are that the Obama Administration's interpretation of "hostilities" is public, whereas the Bush Administration's positions were secret. Yet the Obama Administration's rejection of OLC's conclusions (to which Johnsen also objects) is public only because of diligent reporting and helpful leaks.
POST-SCRIPT: It seems to me that the Yoo-Koh comparison has the most force is with regard to statutory interpretation, and Johnsen does not address this point. John Yoo provided the administration with a highly questionable but politically desirable interpretation of what constitutes "torture." Harold Koh provided the administration with a highly questionable but politically desirable interpretation of what constitutes "hostilities."
Dawn Johnsen on Koh v. Yoh
Former OLC nominee Dawn Johnsen objects to Eric Posner's suggestion that Harold Koh and John Yoo are "peas in a pod" for their aggressive, politically motivated legal interpretations (albeit peas of differing ideological stripes). In her view, both Yoo and Koh are wrong, but in meaningfully different ways.
Yoo's infamous memos on torture and other subjects, you'll recall, made sweeping claims of presidential authority to act contrary to clear federal statutory commands, based on a radical view of the president's constitutional war powers. This view denies Congress the ultimate authority to prohibit torture, no matter how clearly defined, where the president as commander-in-chief deems it warranted. More, Yoo's legal claims—and the Bush administration's executive actions—were kept hidden from the public and ultimately were revealed only through government leaks.
That extreme and secret claim of a sweeping authority to violate statutes simply has nothing in common with the Obama administration's very public engagement on the meaning of a controversial provision of the War Powers Resolution: its requirement that, after 60 days, the president must terminate military action not specifically authorized by Congress. Since its enactment, interpretation of the "60-day clock" has been the subject of repeated public debate between the executive branch and Congress. Here, Obama is openly joining that debate, but expressly is not challenging Congress' legislative authority to establish limits on his conduct of war.
President Nixon vetoed the War Powers Resolution because he believed the 60-day clock interfered with the president's war powers. Congress disagreed and overrode his veto, and a published 1980 OLC opinion (correctly) found the 60-day clock constitutional. The Obama administration asserts that the 1980 memorandum remains in force and that it is not challenging the constitutionality of the War Powers Resolution. By contrast, in one of his memos, Yoo baldly states—without authority or any reference to the contrary 1980 OLC opinion—that neither this nor any other statute "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."
One key point for Johnsen are that the Obama Administration's interpretation of "hostilities" is public, whereas the Bush Administration's positions were secret. Yet the Obama Administration's rejection of OLC's conclusions (to which Johnsen also objects) is public only because of diligent reporting and helpful leaks.
July 5, 2011
History Program's Use of Another's Video Footage of Real Events = Fair Use
So holds Fuentes v. Mega Media Holdings, Inc. (S.D. Fla. Jun. 29, 2011), adopting a Magistrate Judge's Report and Recommendations, though of course in such fair use cases the decision is closely focused on the facts of the case, and offers only a limited precedent for future cases.
Note that there's apparently some controversy about whether the plaintiff timely filed an objection to the magistrate's report; the judge accepted the magistrate's report thinking that the plaintiff wasn't filing an objection, and plaintiff was surprised by this, since his lawyers apparently thought that the magistrate had given them more time to object. Plaintiff has therefore filed a motion for reconsideration, and objections to the report. It's possible that the judge will therefore consider the matter again.
California Dreamin' of Secession
Riverside County Supervisor Jeff Stone recently called for southern California to secede and form a new state:
Is the state of California about to go "South"?
Riverside County Supervisor Jeff Stone apparently thinks so, after proposing that the county lead a campaign for as many as 13 Southern California counties to secede from the state.
Stone said in a statement late Thursday that Riverside, Imperial, San Diego, Orange, San Bernardino, Kings, Kern, Fresno, Tulare, Inyo, Madera, Mariposa and Mono counties should form the new state of South California.
The creation of the new state would allow officials to focus on securing borders, balancing budgets, improving schools and creating a vibrant economy, he said.
"Our taxes are too high, our schools don't educate our children well enough, unions and other special interests have more clout in the Legislature than the general public," Stone said in his statement.....
Stone said he would present his proposal to the Board of Supervisors July 12.
The new state would have no term limits, only a part-time legislature and limits on property taxes.
Even if Stone succeeds in getting other southern Californians to support his plan, it faces very long legal and political odds. As Bill Whalen points out, the Constitution does not allow a state's territory to be divided without its own consent. And the admission of a new state to the Union requires approval by Congress. Obviously, the California state legislature is unlikely to agree to the secession. And even if it does, congressional Democrats are unlikely to approve the admission of a state with two new Republican senators unless a new majority-Democratic state is admitted at the same time (e.g. — Puerto Rico or the District of Columbia).
Ironically, the Constitution is far more clear about making it hard for territories to secede from a state than about the secession of states from the Union, a subject on which it is conspicuously silent. No successful secession from a state has occurred since West Virginia broke off from Virginia during the Civil War. And that secession may have violated the Constitution, since the Virginia legislature did not consent to it at the time.
This is one of those areas where I think the Constitution gets things wrong. Seceding from a state should not be easy. But it also should not be as impossibly difficult as the Constitution currently makes it. Some of our present states are probably too big, and California is perhaps the best example of this phenomenon.
Normally, dysfuctional state policies are constrained by the possibility of "voting with your feet." If a state imposes overly high taxes, adopts flawed regulations, or provides poor public services, people and businesses will tend to migrate elsewhere, thereby incentivizing the state government to clean up its act in order to preserve its tax base. For reasons I discussed in this article, foot voters usually have incentives to be better-informed and more rational in their decision-making than ballot-box voters.
In California's case, however, this dynamic has been undercut by the state's size and favorable geographic location. Because California is extremely large and controls most of the warm-weather coastal territory on the West Coast, people have been willing to put up with a lot of bad policies for the opportunity to live there. Competitive pressure on the state government would be much greater if there were three or four states occupying California's present territory instead of one.
In recent years, conditions in California have gotten so bad that the state has finally begun to experience a net outmigration to other states
of approximately 140,000 per year. And the state government has belatedly begun to reform itself, with Democratic governor Jerry Brown proposing to cut spending and abolish the state's abusive redevelopment agencies. But these trends did not take hold until after the state had dug an extremely deep hole for itself that it will take years to dig out of. A smaller California that faced more interjurisdictional competition probably would not have become so dysfunctional to begin with. And if it did, it would have had to mend its ways sooner, since people would have started to leave earlier.
Obviously, given the existence of economies of scale in government, we would not want states that are too small. However, California and a number of other states have several times more people than many European countries whose governments function as well or better than those of other democracies, including Switzerland, Belgium, Denmark, and Sweden. Indeed, California has many more people than Canada. No serious scholar argues that Switzerland and Denmark are missing out on important economies of scale. The same goes for states such as Virginia and Massachusetts, as well as the hypothetical new state of southern California.
It's also worth noting that secession from a state doesn't raise nearly as many difficult moral and political issues as secession from the Union. People who secede from a state would still be under the federal Constitution and would still enjoy its guarantees of individual rights. They will also still be subject to other federal laws. So even if you are more skeptical than I am about secession from nation-states, you can still favor loosening restrictions on the formation of new states within a nation.
The Cases Against Barack Hussein Obama
In the Westlaw database of federal cases, as of today, there are 202 opinions involving lawsuits against the President in his official capacity that name the President as "Barack Obama." There are another 191 opinions involving lawsuits against the President in his official capacity that name the President as "Barack H. Obama." But of particular interest, there are 26 opinions involving lawsuits against the President in his official capacity that name the President using his full name: "Barack Hussein Obama."
Who is filing lawsuits against the federal government and opting to name the President as Barack HUSSEIN Obama? I took a quick look, and here's the breakdown:
1. Pro se cases (12 decisions)
2. Birther litigation (9 decisions)
3. Individual mandate litigation (3 decisions)
4. Challenge to federal funding of embryonic stem cell research (1 decision)
5. Lawsuit filed by Ramsey Clark on behalf of descendents of Geronimo seeking the return of Geronimo's remains (1 decision)
Climate Change, Cultural Perception, and Scientific Literacy
Yale's Cultural Cognition Project, led by Dan Kahan, has a new working paper examining public perception of the risks posed by climate change: "The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change." The results are interesting, and perhaps a bit counter-intuitive — particularly the finding that those who are more scientifically literate are less likely to believe climate change poses a catastrophic threat. Here's the abstract:
The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents predisposed by their values to dismiss climate change evidence became more dismissive, and those predisposed by their values to credit such evidence more concerned, as science literacy and numeracy increased. We suggest that this evidence reflects a conflict between two levels of rationality: The individual level, which is characterized by citizens' effective use of their knowledge and reasoning capacities to form risk perceptions that express their cultural commitments; and the collective level, which is characterized by citizens' failure to converge on the best available scientific evidence on how to promote their common welfare. Dispelling this, "tragedy of the risk-perception commons," we argue, should be understood as the central aim of the science of science communication.
UPDATE: Steven Hayward comments here.
The Law Film School Scam
First the schools promised that everyone who enrolled would get rich, but then there were no jobs: The film school version.
Federalist Society Symposium on Cybersecurity
Last week, the Federalist Society hosted a symposium on cybersecurity that you can watch here (morning panel, focused on national security issues), here (lunch address), and here (afternoon panel, focused on business and criminal law issues).
Two VC bloggers participated in the symposium. Stewart Baker gave the lunchtime keynote address, which you can watch here:
I gave a few comments criticizing the Obama Administration's proposals to expand the Computer Fraud and Abuse Act, which you can watch here:
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