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Oyez! Oyez! Article III Groupie Is Back In Session

Underneath Their Robes, the controversial blog by the no-longer anonymous Article III Groupie (David Lat) is back online. Recently, news reports revealed that David left his job as an AUSA in Newark. So, as Article III Groupie would certainly ask: What is David up to next? The news accounts are vague about her his future plans, only indicating he's on his way to Washington, DC. We'll have to wait for more details at Underneath Their Robes.

Related Posts:
1. Solove, Article III Groupie Disrobed: Thoughts on Blogging and Anonymity
2. Solove, The Mysterious Disappearance of Article III Groupie

Posted by Daniel Solove at 07:16 PM | Comments (0) | TrackBack

The Funniest Justice

For all of those law geeks who obsess over Supreme Court trivia, here is a new question: Who is the funniest justice? Well, the data has been carefully analyzed by Professor Jay Wexler in a new article in the Greenbag, and the answer is in. As summarized in a NYT article on the study:

Transcripts of oral arguments at the United States Supreme Court have long featured the notation "[laughter]" after a successful quip from a justice or lawyer. But until October 2004, justices were not identified by name, making it impossible to construct a reliable index of judicial wit.

That has now changed, and Jay D. Wexler, a law professor at Boston University, was quick to exploit the new data to analyze the relative funniness of the justices. His study, which covers the nine-month term that began that October, has just been published in a law journal called The Green Bag.

Justice Scalia was the funniest justice, at 77 "laughing episodes." On average, he was good for slightly more than one laugh - 1.027, to be precise - per argument.

Justice Stephen G. Breyer was next, at 45 laughs. Justice Ginsburg produced but four laughs. Justice Clarence Thomas, who rarely speaks during arguments, gave rise to no laughter at all.

Of course, it is not clear that Scalia's victory is evidence of humor and wit on any absolute scale. I found during law school that my sense of what was funny became seriously warped. I started finding even mild judicial humor uproariously funny, and would read sections of opinions to my speech-pathologist wife. For a while she would listen with an indulgent expression on her face, but eventually she gave me the news with the air of a woman telling a child the awful truth about Santa Claus. "Nate," she said, "I don't think that legal humor really counts as real humor."

Posted by oman at 07:26 AM | Comments (1) | TrackBack

Whistleblowing, Journalist Privilege, and NSA Surveillance

The DOJ has launched a probe into the leaking of the NSA surveillance program to the New York Times:

"The leaking of classified information is a serious issue. The fact is that al-Qaida's playbook is not printed on Page One and when America's is, it has serious ramifications," Duffy told reporters in Crawford, Texas, where Bush was spending the holidays.

This probe will raise several important questions in the months to come.

First is the issue of whistleblowing. Somebody leaked classified information about the NSA surveillance program. Should that individual be punished? On the one hand, we don't want people leaking classified information that could impact national security. On the other hand, the President possibly violated a federal criminal statute. Whether he did or not is something that Congress and the courts must settle, but very few of those defending the legality of the President's actions believe that it is a very easy clear-cut case. At best for the President, the issue is contestable; at worst, he broke the law. Without the whistleblowing, there would be no way for the Congress or courts to address the issue. Even if it turns out the President lawfully engaged in the surveillance, there's another issue: Is the President lawfully allowed to keep it secret for as long as he desires? At the very least, should the President be allowed to keep it secret from other branches of government?

Second, what is the harm of the whistleblowing? President Bush stated that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." I believe that such rhetoric is overblown unless there is something to back it up. How does the disclosure of basic facts about the existence of the program put our citizens at risk? Rhetoric such as this can do a severe disservice to national security in that it will become harder in the future to determine what is just empty rhetoric and what is the truth. The story of the boy who cried wolf doesn't end happily.

Third, the probe into the whistleblower may raise again the issue of journalist privilege -- the right of journalists to shield the anonymity of their sources. Earlier on, this issue took center stage with the White House leak that Valerie Plame was a CIA agent. Will the DOJ seek to obtain the identity of the leaker from James Risen and Eric Lichtblau, the New York Times journalists who broke the story?

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that there is no First Amendment journalist privilege against grand jury requests for evidence. Lower courts have employed qualified privileges, but these have been generally much broader in civil rather than criminal cases. I haven't examined the caselaw sufficiently enough to opine on the extent to which any journalist privilege would apply to this case. The Reporters Committee for Freedom of the Press has an extensive repository of materials on the issue of journalist privilege.

There have been calls for Congress to establish a journalist privilege, and I believe that Congress ought to establish one. A lot of issues in the precise contours of the privilege need to be worked out, as I discuss here in a post, but it is time to address the issue. By creating a journalist privilege, Congress can help to reassert its power in the process. President Bush probably broke a federal law; has continued to claim that he has power to ignore the law; and did not (and has not as of yet) fully informed Congress about the surveillance program. If I were Congress, I'd be feeling fairly stepped-upon right now. Creating a journalist privilege would ensure that Congress and the public learn information about secret Executive Branch activities that might be beyond the bounds of the law.

Many might try to equate the leaking of the NSA surveillance program to the Valerie Plame leak. I believe that the two leaks are not equivalent. There seems to be little justification for the Plame leak except vindictiveness. On the other hand, the leak of the NSA surveillance program has potentially revealed a violation of the law (one that is continuing and ongoing); it has uncovered a potential overreaching of Executive power; it has tipped off Congress to a potential encroachment on its own power; and at the very least, it has opened up a national discussion about the proper scope of the President's powers in a democratic society with separation of powers.

I will withhold final judgment until we have more facts, but from what I know at this point, I submit that the leak of the NSA surveillance program was in the public interest, and the journalists who broke the story and the identity of their source should be protected.

Related Posts:
1. Solove, Journalist Privilege and the Valerie Plame Case
2. Solove, Journalist Privilege and Law Enforcement Leaks
3. Solove, How Much Government Secrecy Is Really Necessary?
4. Solove, Did President Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

More related posts are in the category archive for National Security.

Posted by Daniel Solove at 06:08 PM | Comments (5) | TrackBack

More on NSA Surveillance

There are some recent blog posts and news stories worth reading about the NSA surveillance scandal.

Orin Kerr at the VC has a new post examining the argument that Article II of the Constitution grants the President the "inherent authority" to conduct warrantless surveillance in violation of the Foreign Intelligence Surveillance Act. He concludes:

I don't think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it's really hard to see where the Administration could get 5 votes for the claim. That's my ballpark guess, at least.

In particular, Kerr examines nine words in an opinion by the FISA Court of Review, In re Sealed Case, that many cite as support for the Article II argument. Kerr observes:

As for the 9 words of dicta from In re Sealed Case — "FISA could not encroach on the president's constitutional power" — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable. Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment? That would reverse the usual role of the Fourth Amendment: it would transform the Fourth Amendment from a floor on privacy protections into a ceiling. Or is the Court merely saying that if FISA were repealed, the President's constitutional power from pre-FISA days would still exist? I'm not entirely sure, and unfortunately the opinion doesn't carefully explain it. If this phrase stands for the view that Article II powers trump FISA's restrictions, then I would certainly want more authority than that; Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren't the case.

For wonks who are interested in more details, Kerr's lengthy post is worth reading in its entirety.

I.M. Kierkegaard is maintaining a very good repository of links about the NSA surveillance story -- and the links are being regularly updated.

Marty Lederman has another good post on the NSA surveillance. Lederman responds to an essay in the Weekly Standard by Gary Schmitt of AEI (former executive director of the President's Foreign Intelligence Advisory Board). Schmitt argues that the President violated FISA because the law was too restrictive and the national security needs were paramount. Lederman writes:

Just to be clear: Schmitt is accusing the President of authorizing criminal conduct, of failing to abide by his constitutional obligation to "faithfully execute the laws." No doubt the President, like Schmitt, thinks those laws are inadvisable, and damaging to our national security interests. But is that a sufficient excuse?

There's a certain irony here, in that FISA itself is one of those rare statutes that expressly contemplates that the rules for Executive conduct might need to be altered during wartime. The statute provides that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. 1811.

Why does the statute permit warrantless surveillance for only the first 15 days of a war? After all, the need for intelligence ordinarily will be just as great throughout the war, not only during its first 15 days. The answer is that 15 days was deemed sufficient to give the President the opportunity to ask Congress for a statutory amendment. As the Conference Report explained: "The Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.” H.R. Conf. Rep. No. 95-1720, at 34 (1978).

The Bush Administration could have, but did not, take advantage of the 15-day window for legislative change that Congress specifically inserted in FISA (perhaps because it was informed that an amendment to allow this sort of data-mining would have been a political nonstarter). Instead, it simply decided to violate the law. Isn't that choice to bypass the democratic process a bit disconcerting, even if (like Gary Schmitt) one thinks the law was a lousy idea to begin with?

The New York Times reports that the President's surveillance program may be more extensive than has previously been thought:

Members of the Judiciary Committee have already indicated that they intend to conduct oversight hearings into the president's legal authority to order domestic eavesdropping on terrorist suspects without a warrant.

But Congressional officials said Saturday that they would probably seek to expand the review to include the disclosure that the security agency, using its access to giant phone "switches," had also traced and analyzed phone and Internet traffic in much larger volumes than what the Bush administration had acknowledged.

"We want to look at the entire program, an in-depth review, and this new data-mining issue is certainly a part of the whole picture," said a Republican Congressional aide, who asked not to be identified because no decisions had been made on how hearings might be structured.

Current and former government officials say that the security agency, as part of its domestic surveillance program, has gained the cooperation of some of the country's biggest telecommunications companies to obtain access to large volumes of international phone and Internet traffic flowing in and out of the United States.

The DOJ has launched a probe into the leaking of the NSA surveillance program to the New York Times.

Posted by Daniel Solove at 02:20 PM | Comments (3) | TrackBack

Finding God in Chess and the Appellate Brief

When my professional life is going well it consists of reading and writing appellate briefs. Fortunately, this is not nearly as pathetic as it sounds.

At its most basic, an appellate briefs is a written argument presented to a court explaining the claims of your client and how those claims are supported by the law. As such, it represents one of the great triumphs of human civilization. I am serious. Law rests on a basic commitment to resolving the disputes of human life by resort to reason rather than violence. In the days before appellate briefs (or something like them) we resolved disputes through blood feuds, trial by combat, or by throwing women into ponds to see if they floated. Deliciously dry and intricate arguments about precedent, controlling authority, pleading, and statutory construction represent one of the few unequivocal leaps forward in human history. Post-modernism, historical relativism, and skepticism of Whig history all have their place, but at the end of the day, the rule of law is simply a lot better than trial by combat. Generally speaking, the progress of reason is told in Enlightenment terms as a story about the ebb of faith down the shingles of Dover Beach. However, it is possible to see the triumph of reason in the brief in terms of an older vision of reason: The trace of the divine.

A well written brief has a kind of beauty about it. It will have a unifying structure, a clear skeleton on which the flesh of the argument hangs. Doctrinal arguments and policy arguments will be woven together, adverse precedents will be carefully distinguished without seeming glib or plodding. The writing will be clear and free from jargon (except for the occasional flourish of a Latin maxim). At the end of the brief, the reader will be left thinking, “The law supports the appellant’s claim and it is a good thing to, as our law is wise and just and clear.” A badly written brief is all ugliness. The question presented will run on for pages. The argument will be lost in a profusion of points and subpoints, never coalescing into an identifiable structure. Adverse precedents will be ignored or labored over for pages. Doctrine and policy will be left in stark isolation, presenting the judge with the unhappy choice of enforcing a bad law or ignoring the law to reach a just result.

In this sense, an appellate brief is like a game of chess. A person who knows how the pieces move, but has no grasp of how the game is played will push pawns and bishops aimlessly around the board, attacking and defending pieces with no discernable strategy or plan. Weaknesses in the player’s position will develop, backward pawns, and hanging material will proliferate as pieces clog the lines of attack of their fellows until ultimately the game sputters to an accidental ending. In contrast, in a well played game of chess each move will fit into a position or plan. There will be identifiable strategic goals and great care to avoid the minor weaknesses that will later flower into catastrophe. The game will utlimately be decided by the execution of a coherent strategy pushed forward by precise attacking combinations.

Both chess and the appellate brief present a drab and plodding exterior but there is a deep structure to both that can exhibit the beauty of well employed reason or the ugliness of diffuse and scattered thought. Traditionally, theologians have looked at the world in remarkably similar ways, searching out the trace of divine reason. Indeed, the very cognizability of the world, the fact that we can make some sort of halting sense of it, was seen as a finger-print of God and reason itself became an aspect of the divine presence. Likewise the beauty of the world, which was related to our capacity to apprehend it, was likewise a trace of the divine logos. For me there is a similar kind of grace and beauty to the well-crafted legal argument or the finely-timed chess combination. There is something of the same divine spark of reason that fills the world of the believer with the trace of the divine.

(Orginally posted in modified form at Times & Seasons)

Posted by oman at 02:43 PM | Comments (11) | TrackBack

A Philadelphia Story

This story from the Philadelphia Inquirer caught my eye. (And gave me an opportunity to steal a picture from Dan's airline screening playset post.) Janet Lee, a Bryn Mawr student, was on her way home from the holidays. At the Philadelphia Int'l Airport, she was arrested because her checked bags contained condoms full of flour, which the police mistakenly identified in two field tests as cocaine and amphetamines. According to Lee, she and hall-mates had created the bags as stress balls as an exam-time gag. The system held Lee in jail for three weeks on $500,000 bail:

Lee acted tough to protect herself. She did modern-dance moves to keep limber. Inmates saw this and gossiped: "Everyone thought I knew karate because I'm Asian." She certainly didn't discourage the stereotype.

Inmates saw the high volume of visitors and figured she was important. Again, she did not discourage the notion. She did not tell her cell mates that the visitors were actually volunteers from Catholic churches in Philadelphia who had taken up her cause.
The volunteers helped her hire [a lawyer, and former prosecutor, named David] Oh.

"I believed her story because things just didn't add up," Oh said. For one thing, Oh said, the field tests were odd because they detected the presence of not one drug but three.

"People don't mix drugs like that," Oh said.

First, Oh contacted Bryn Mawr and confirmed that Lee's dorm mates had, in fact, made the condoms together during a pre-exam session they call a "hall tea."

Then, Oh said, he called Assistant District Attorney Charles Ehrlich, who agreed to expedite laboratory tests. Ehrlich also agreed to help seek reduced bail, Oh said. A day after the new test came back and confirmed that the substance was flour, Lee was released.

She flew home first class.

There are a few notable things about this story. The draconian D.A.'s office (all considered) gave Lee a huge break because of her connections - a social capital that most defendants do not have. It is also surprising (and heartening) that Philadelphia Airport is screening luggage well enough to catch this (potential contraband). I also wonder about the remarkably high bail set for a college student who had no prior record that we know about, and the jail authorities apparent decision not to put her into protective custody. On the other hand, I'm not surprised at all at the error with the tests. I wonder if the police department has studied the false positive rate carefully.

Needless to say, Lee has now filed a civil rights claim against the police (and probably a claim against the city for their poor drug-testing training). Given her story, the City should settle. But knowing the City Solicitor's inflexible litigation strategy, I doubt they will anytime soon.

Posted by hoffman at 11:20 AM | Comments (17) | TrackBack

The Gifts You Can No Longer Return

In the fun and light documentary, My Date With Drew, an average guy named Brian Herzlinger chronicles his attempt to get a date with Drew Barrymore. The documentary was made on a shoestring budget of just $1100, and Brian cut costs by buying a video camera at Circuit City, using it until the 30-day return window was up, and then returning it to the store for his money back.

But Herzlinger's documentary may one day be notable not for his quest to meet a celebrity but for capturing what might be a quaint piece of nostalgia -- the easy and hassle-free ability to return merchandise.

Returning merchandise has become much harder these days. Those unwanted gifts you received this holiday season might be much more difficult to return. According to a WSJ article (don’t bother clicking the link, as the article can’t be accessed without paying a massive fee):

Retailers are further clamping down on return policies, imposing penalty fees and using sophisticated computer databases to flag serial returners trying to game the system. Some are also adding exceptions and caveats to their return policies -- for instance, making it particularly hard to return certain kinds of products, such as electronics.

The article continues:

In October, Sears began to impose a "restocking" fee amounting to 15% of the purchase price for some products that are returned used, or with missing parts or manuals. The new policy covers electronics, home appliances, tools, lawn and garden merchandise and automotive items -- though not clothing or home furnishings, among other things. . . .

During the holidays, shoppers should ask when the time limit for returning purchases begins. Some stores will extend their 30-day rule for gifts bought early in the holiday-shopping season, so that recipients have time to return gifts after Christmas. But there are exceptions. Best Buy Co., for example, will allow most purchases between Nov. 1 and Dec. 24 to be returned until Jan. 24. But some common gifts, such as digital cameras, must be returned by Jan. 8, and computers still have to be returned within 14 days, no matter when they were purchased.

Some stores are starting to keep a database of naughty customers. I blogged earlier about the growing trend to separate customers into “angel customers” and “demon customers.” A marketing book suggests that some customers (the angels) are very profitable whereas others (the demons) are not. Demon customers frequently return items or call customer service many times. The book suggests that companies find ways to attract the angels and repel the demons.

According to the WSJ article:

Some stores subscribe to a database called Verify-1, which was created by The Return Exchange, a closely held company whose clients include Sports Authority Inc. and the Express division of Limited Brands Inc. When a customer returns merchandise to any store that uses Verify-1, the cashier swipes the shopper's driver's license, which keeps an inventory of any return the shopper has made.

Figuring out exactly what triggers the system is tough, because The Return Exchange is tight-lipped about its criteria for rejection, saying only that it detects fraud through "rules and statistical models." But if a shopper crosses the database's line, the return is denied. Customers who are turned down may request, via email, a report from The Return Exchange with their return activity history. . . .

Shoppers can be flagged for returns to multiple stores. So if you frequently shop at a chain that uses the Verify-1 database -- the retailer should mention that in its posted return policy -- it may be helpful to visit just one store. Salespeople and managers there will begin to recognize you as someone who buys a lot of merchandise and isn't trying to run a scam.

Are the stores going too far? Chris Hoofnagle writes at EPIC West Blog:

The Return Exchange database skates right on the edge of the Fair Credit Reporting Act's definition for a consumer reporting database. If Return Exchange is sharing data on consumers across retailers (not just across chains within a certain retailer), the data it issues will be a "consumer report," and all sorts of rights will kick in to protect shoppers. Until then, a big black box system will have your driver's license data and make decisions about you with no transparency.

I recall something that Nate Oman recently wrote:

One nice thing about the holiday shopping orgy, however, is that it makes me feel powerful. Everywhere I go, I see one huge corporation after another groveling -- literally -- for my business. They know that I have options, and this fact gives me courage when I go to the Target exchange desk.

That exchange desk, however, may be much less hospitable this holiday season and in the future -- at least for some people, who may find themselves blacklisted. Is this just good business or is it the start of something more troubling?

Related Posts:

1. Solove, Soup for Me at $5 but No Soup for You (Or Maybe at $10) (PrawfsBlawg)
2. Oman, The Power of Shopping

Posted by Daniel Solove at 01:03 AM | Comments (7) | TrackBack

The Case of the Missing Volokh Conspiracy

The Volokh Conspiracy has mysteriously disappeared . . . probably something nefarious in response to Orin Kerr's criticism of the NSA surveillance program. In all seriousness, I'm informed by a Volokh-conspirator that the Volokh Conspiracy will be back up and running soon.

Posted by Daniel Solove at 01:00 AM | Comments (2) | TrackBack

Ribstein Is Back

Larry Ribstein has returned to his roost at Ideoblog, and is posting about the race to bottom regulatory competition in the market for securities regulation. For those of our readers who may be uninterested in that topic, he's also writing about how to reduce the deadweight loss produced by Christmas (and presumably other seasonally related holidays.)

Larry's guest bloggers have been provocative and interesting, and it is worth checking out what's happened at the blog over the last few weeks. Kate Litvak's post on racism, golf and boating was my personal favorite. I hear that most of those folks will soon be starting a new blog called Truth On The Market, which I'm sure I will enjoy, and disagree with, often.

Posted by hoffman at 11:11 PM | Comments (0) | TrackBack

Fine Print from the Experts

Those wacky contracts professors over at the AALS's contracts section have appended the following bit of boilerplate to their website:

IMPORTANT SMALL PRINT LEGAL DISCLAIMER

This web site is a forum for the exchange of information and points of view. Opinions expressed here are not necessarily those of the Section on Contracts or of the Association of American Law Schools, which when you think about it are really only reified abstractions that have no independent existence and therefore can’t really have any "opinions" about anything at all, so we’re not sure why we have to say this. All statements herein are the sole responsibility of the authors, except for any that are inaccurate, irresponsible, tasteless, or actionable, which are solely the responsibility of student editorial assistants who are working as independent contractors and for whom we will accept absolutely no responsibility whatsoever. There are no warranties, either express or implied, for the use of this site. Nothing on this site should be taken as legal advice, since only an idiot would take free legal advice on an important issue from the casual musings of a law professor instead of paying a practicing lawyer who actually knows the law of the jurisdiction you're in. Any disputes arising as a result of your use of this site shall be decided by arbitration under the rules of the International Chamber of Commerce in Japan, unless you happen to be somewhere in or near Japan, in which case it shall be decided in Belgium. Your reading of this provision signifies your assent to all its terms.

I will leave the analysis of its legal effect to the academics, although I would be happy to offer an opinion for a reasonable fee...

(Hat tip to Ben Davis for pointing this out.)

Posted by oman at 05:40 PM | Comments (0) | TrackBack

AALS Blawg Happy Hour: More Details

Here are more details about our happy hour, in conjunction with PrawfsBlawg, during the AALS conference in Washington, DC. It will be held at Cloud, on Wednesday, January 4th at 9:30 PM.

Cloud is at 1 Dupont Circle NW, which is on New Hampshire Avenue just south of Dupont Circle. Click here for directions.

I hope to meet many readers of the blog in person.

Posted by Daniel Solove at 12:52 PM | Comments (0) | TrackBack

Adultery and Polygamy

An article (sorry no link) in this week's Economist (aka "The Greatest News Magazine in the World") suggests a link between polygamy and Turkey's recent efforts to pass a law criminalizing adultery. Back in September, the Turkish parliament debated a proposed law criminalizing adultery. After Kamal Ataturk came to power in the wake of World War I, Turkish law moved in an aggressively secular direction, mainly by importing western-style civil codes. Most strikingly, Turkey essentially adopted the Swiss family law code and among other things criminalized polygamy, which had been allowed under the previous shar'ia-based law. (In theory, under shar'ia a man may have up to four wives provided that he has the means of supporting them and treats all of them equally.) The post-Ataturk laws also criminalized adultery, however this law was struck down by Turkey's Constitutional Court in 1996 because it treated men and women differently. (As I understand it, the law required proof of a long-term affair in the case of male adultery, but a single act of sexual intercourse was sufficient in a case of female adultery.) The new adultery law was to remedy this infirmity by applying equally to both men and women, but women's rights groups opposed the law arguing that it would not be applied equally and violated the right to privacy. More importantly, from the point of view of Turkish politics, the law was not popular with the Europeans, who saw it as an attempt to Islamicize Turkish law. Turkey very much wants to become a full member of the EU, so staying in the good graces of the elites in Brussels is very important.

Enter polygamy. Although the Turkish prohibition on polygamy is now about eighty years old, in many areas -- particularly in the rural, Kurdish, anti-Turk, south-eastern portion of the country -- polygamy is alive and well. More surprisingly, a certain amount of discrete polygamy continues among urban elites, including former ministers in the Turkish cabinet. The Economist suggests that adultery law may have been pushed in part as a way of shoring up the anti-polygamy prohibition. If this is the case, then the Turkish parliament was walking a path previously trod with great enthusiasm by the U.S. Congress.

In the wake of the Civil War, the federal government moved vigorously to stamp out polygamy among Mormons living in the intermountain west. (The story is best told in Sarah Barringer Gordon's (Penn Law) excellent book The Mormon Question; reviewed by yours truly here.) Congress had criminalized polygamy in 1862, but the problem was that a polygamy prosecution required proof of a marriage, which presented a thorny evidentiary problem: Those who had been at the wedding always refused to talk. Federal law enforcement responded in a couple of ways. First, they prosecuted polygamist men for adultery. Second, they prosecuted polygamist wives for fornication, which was tantamount to charging them with prostitution, as fornication was the charge generally brought against prostitutes. Third, congress created a new crime known as "unlawful cohabitation," essentially the crime of living together without being legally married.

Unlawful cohabitation in particular created some interesting legal problems. What was required to prove unlawful cohabitation? Lawyers representing Mormon polygamists argued that it required proof of sexual intercourse, which of course could be as difficult to show as a secret marriage ceremony. The government won this battle, although the courts were never entirely precise on what did need to be shown to prove unlawful cohabitation. More creatively, government prosecutors came up with a theory known as segregation, under which a man would be charged with a new count of unlawful cohabitation for each year, month, or even day that he unlawfully cohabitated with a polygamous spouse. This allowed the prosecutors to pile on the legal penalties for polygamy, until the Supreme Court stopped the practice in the case of Ex Parte Snow, 120 U.S. 274 (1887).

In short, America's (very imperfect) suppression of polygamy required the creation or adaptation of a number of different criminal offenses. In the end, I tend to agree with the women's rights activists that the operation of adultery laws in Turkey is likely to fall mainly on women. However, the notion that criminalizing adultery could be a tool for suppressing polygamy is not nearly as far fetched as it might at first sound.

Posted by oman at 10:52 AM | Comments (1) | TrackBack

The Gorilla Award for 2005

It's award season. Not a suprise. The end of the year encourages thoughts of reflection and rankings.
I thought it might be fun to institute an award for the corporate news story that won't make anyone's list of top events this year: the 2005 Gorilla Award. The award is named for a famous video testing "inattentional blindness." As professors who teach Enron are fond of relating, experimenters asked students to watch a video of folks playing basketball and to to count the total number of times that the people wearing white pass the basketball, while not counting the passes of folks wearing black.

Go ahead, click on the video and perform the test. Then come back.

Notice the gorilla?

Most folks don't (although the way I've set up this post's title, you probably will.) The point is that even individuals who are highly motivated to pay attention to a particular event may miss the proverbial gorilla in the room, because their attention is focused elsewhere.

Thus the Gorilla Award. Based on nominations from our audience, and the genius of distributed sources of information, I'd like to guess 2005's version of the corporate gorilla story. What unheralded tax-break/accounting technique, merger/breakup, stock/bond rise/fall/issuance, corporate announcement/silence, etc., will prove in the next several years to be the biggest missed business story of 2005. That is, what (in the words of the Secretary of Defense) were the known [corporate] unknowns of the past year? Just to give you two contestable examples, I'd say that the Gorilla story of 2000 was the Enron SPEs; the Gorilla story of 2003 was creation of iTunes by Apple.

Nominations are open.

[Update: Based on reader feedback, I should make clear that the Gorilla story from 2005 can't be something that has already been featured in the business press (WSJ, Forture, etc.) It must be something we missed because we had our eyes on a different ball.]

Posted by hoffman at 12:10 AM | Comments (0) | TrackBack

A Tale of Two Blogospheres: The Red and the Blue

I’ve been quite surprised that the vast majority of the larger blogs linking to us at Concurring Opinions have been conservative blogs rather than liberal ones. After all, many (though not all) of us at Concurring Opinions consider ourselves to be liberals. Despite criticisms of the conservative blogosphere as an echo chamber, I’ve been impressed that conservative bloggers are linking to us. Many of us have tried our best to be balanced rather than partisan, and perhaps this is why we’ve received many links from the conservative blogosphere. What continues to strike me as a bit odd, however, is the great disparity in links from the prominent conservative blogs versus the prominent liberal ones.

This phenomenon got me thinking more broadly about the liberal blogosphere versus the conservative blogosphere. With the caveat that this is just my personal impression, I think that the conservative blogosphere is much better integrated in its intellectual and activist dimensions. For example, the conservative political blogosphere seems much more deeply connected to the legal blogosphere, where political bloggers seem to more routinely tap into the expertise of law professors about various legal issues. Indeed, many of the prominent political bloggers in the conservative blogosphere are academics; fewer of the liberals are.

This strikes me as representative of a larger difference between the Left and Right. The Left must better connect its intellectual and activist sides. Indeed, an article about Markos Moulitsas Zuniga, the founder of Daily Kos (one of the largest and most influential liberal political blogs) states:

Moulitsas is just basically uninterested in the intellectual and philosophical debates that lie behind the daily political trench warfare. By his own admission, he just doesn't care about policy.

Duncan Black at the popular liberal political blog Atrios agrees:

If our team actually had some power we could be debating the merits of various universal health care proposals, or considering just how large a minimum wage increase might be appropriate, or various other wonky things. It would be good fun. But we live in an unserious age where the people running the government have no interest in policy and the people not running government have no ability to get anything passed without having anything good about it destroyed by the Republicans.

Kevin Drum of Washington Monthly is not so sanguine about this state of affairs:

All political movements have both tacticians and theoreticians, so there's nothing odd that Kos is all about tactics and prefers to leave the ideology to others. But there's more to it than that. To a large extent, I think Kos is symbolic of nearly the entire political blogosphere, which tends to be far more a partisan wrecking crew than a genuine force for either progressive or conservative thought.

Drum is partially right. It is true that both the liberal and conservative blogosphere are filled with partisan hacks in echo chambers, but from my limited experience, I’ve noticed more integration between the “tacticians and theoreticians” from the conservative blogosphere than from the liberal blogosphere.

Henry Farrell at Crooked Timber thoughtfully writes:

A politically savvy wonkishness is an essential part of the long campaign to claw back some of this lost ground. You can make a pretty good case that the Democratic party, and the left more generally, has done a lousy job in connecting wonkish proposals together into a coherent political agenda for change. . . .

At the end of the day, ideas move people to action. The liberal blogosphere may think it’s all about power because they believe that the conservative ideas are bankrupt. But any political movement needs an integration of big ideas and people who spread and motivate others about those ideas. The conservative blogosphere and the Right seem to get this.

The liberal blogosphere has its fair share of intellectuals and ideas; and it has a number of blogs that are forums for political debate and communities for grass-roots organization and action. But I often think that the different parts of the liberal blogosphere could be better integrated, with more linking and communication between the political liberal blogosphere and the academics.

Posted by Daniel Solove at 12:01 AM | Comments (41) | TrackBack

Grading Exams and Other Fun Activities

I started grading exams today. As most Profs. will tell you, grading is the least pleasant aspect of law teaching. Fortunately, at my current rapid pace of 2.5 hours per exam, I will be finished at the latest by mid-March.

On the plus side, I've almost finished writing my syllabus for next semester's new seminar in Law and Economics. In preparing the course, I was reminded again of McCloskey's fantastic little essay on The Rhetoric of Law and Economics, 86 Mich. L. Rev. 752 (1988). Well worth reading if you have a WL or Hein account.

Posted by hoffman at 07:12 PM | Comments (0) | TrackBack

How to Be an Industry Lobbyist

Chris Hoofnagle has a humorous post about industry lobbyist arguments in the consumer privacy arena:

Ever wanted to be an industry-side lobbyist? You can learn the basics right here on choof.org!

I've made the entry to your new career simple with this privacy industry deck of cards. These cards articulate all the arguments you need to make your case, without actually knowing anything. Master these arguments, and you too could be a high-paid lobbyist for almost any tech industry.

Posted by Daniel Solove at 05:32 PM | Comments (0) | TrackBack

Immigration Appeals in the Times

Adam Liptak of the Times caught up today on the blawg-headlining Posner opinion from a few weeks back on immigration appeals. Considering the lead-time, I'm surprised at the weakness of the responses to Posner's opinion offered by the BIA's defenders. The bottom line answer to appellate anger: “You guys are falling victim to the fundamental attribution error.”

Jonathan Cohn, a deputy assistant attorney general in the Justice Department, said the quality of the decisions rendered by the immigration courts on the whole was good, noting that the government won more than 90 percent of the cases in the federal appeals, or circuit, courts.

"The circuit courts do not see any of the tens of thousands of correctly decided cases that aliens choose not to appeal," Mr. Cohn said. "They're only seeing a fraction of the cases, and only a small fraction of those give rise to criticism."

I think this response is misleading.
First, the article tells us that immigrants appeal 7 to 30 percent of the time. This is the source of Cohn's intuition that only the "bad cases" for the government end up on appeal. But I can't imagine that Cohn's equation of the failure to appeal with being "correctly decided" has much basis in known fact. It might be that Cohn is correct. But I'd assume instead that costs (financial, emotional, and otherwise) prevent appeals, and not being compelled by the force of the government’s arguments.
Second, just because the government wins 90% of the time in the appellate courts doesn’t mean the BIA is right 90% of the time on the merits. Most of those wins depend either on procedure or on the operation of the standard of review, which is why the overall success rate for the government on appeal is exceedingly high. Even this success rate appears to depend on the amount of attention appellate judges pay to BIA procedures. As Posner's opinion revealed, in the Seventh Circuit in 2005 the government's win rate was around 60% in BIA cases, as compared to 82% in all other civil cases.
Third, Cohn's rebuttal is aimed at the wrong target. Almost all judicial review of administrative agency decisionmaking will produce the pyramid structure he describes, where the "worst" cases are the most likely to result in published appellate reversals. But what is striking about the BIA is (1) that it has appeared, to date, undeterred by Circuit Court tongue-lashing; and (2) that the problem is occupying more and more appellate time. That's why we get statements like this one from Posner's opinion: "the adjudication of these cases at the administrative level has fallen below the minimum standard of legal justice. Whether this is due to resource constrains or to other circumstances beyond the Board's and the Immigration Court's control, we do no know, though we note that the problem is not of recent origin."

Posted by hoffman at 07:23 PM | Comments (0) | TrackBack

The Role of the Solicitor General

We here at Concurring Opinions occasionally provide an important service for our readers: we analyze uber-left-blog-Dailykos' views on the legal system so you don't have to.

Armando of Dailykos, who I have previously criticized here, has a new post up on the role of the Solicitor General's Office. Armando appears to be taking on Ed Whelan's short argument in the National Review that Judge Alito's SG wiretapping memo's were advocacy pieces on behalf of his administration. But on closer examination, Armando's argument sweeps quite farther than that.

Armando quotes extensively from David Strauss' article on the SG's office, which had questioned the commonly-expressed institutionalist account of its role. He (Armando) appears drawn to the institutionalist view – holding that the SG should be and is somewhat independent of the White House. [Where is he on the Days-Clinton dispute, I wonder?] But, he argues, the executive branch has soiled this role by politicizing the SG [whatever that means] and by appointing more partisan lawyers to the job. [He cites to a book by Rebecca Salokar that I have not read.] Armando does not distinguish between employees of the office and the SG him/herself. He then continues:

Alito was chosen to be in the Reagan Justice Department and the Reagan Solicitor General's office BECAUSE he believes the things Ed Meese believes. [Ed: How does Armando know this?] So yes, he was acting as an advocate for Reagan Administration legal policies, but he was chosen to advocate for them because he believes in those policies. So looking at the opinions he expressed and positions he advocated for while serving in the Reagan Justice Department and in the Solicitor General's office is not only fair, it is perhaps the fairest approach we can take. After all, it was in those roles that we likely heard Alito's true views. While a sitting judge, bound by precedent, Alito's true views were muted at best, and masked at worst. [This sounds lovely. What does it mean?]

So, to sum up, Armando argues that as early as the 1980s the SG's office was a mere extension of the White House political directorate, and that SG lawyers writing memoranda supporting administrative positions always personally supported those positions, by virtue of their status as SG employees. While Judges, actually appointed by the President in a nakedly political process, somehow are bound by "precedent". This is an odd position considering Armando's previous writing that embraced a cynical type of legal realism. I wonder if readers of this blog with personal experience in the SG’s office would agree with the picture of it drawn by the most popular blog on the planet.

Posted by hoffman at 11:49 AM | Comments (27) | TrackBack

Back From Vacation

I'm back from a week's vacation with family, and ready to rejoin the blogging world. Not entirely coincidentally, Dan will be blogging "more lightly" in the near future as he has vacation and conferences to attend. Whether "more lightly" translates to less than once an hour remains to be determined.

I, and the rest of us here at Co-Op, were happy to see us getting a nod as "Best New Blawg in 2005" at the BlawgReview. It is true that the award list is long, suggesting my fourth grade baseball league most-improved trophy (no shame in that!), but it was still very exciting to be recognized after only three months in existence. Thanks!

In the coming weeks, apart from a little less Dan, we'll be joined by several exciting new guests, and hope to provide wall to wall coverage of the Alito/Spying/Patriot Act hearings in Congress. Don't change that channel.

Posted by hoffman at 11:32 AM | Comments (0) | TrackBack

AALS Blawg Happy Hour

In conjunction with PrawfsBlawg, we invite our readers to a happy hour during the AALS conference in Washington, DC, tentatively scheduled for Wednesday, January 4th at 9:30 PM at a bar probably in the Dupont Circle area. Please RSVP to me if you're interested. More details soon.

Posted by Daniel Solove at 12:05 AM | Comments (0) | TrackBack

In the New York Times: Dan Solove on Spying

Concurring Opinions readers should check out Adam Liptak's article in the New York Times today, Little Help From Justices on Spy Program. Dan Solove is among the law professors quoted on the constitutional issued raised by the NSA spying program.

Posted by Jason_Mazzone at 11:33 AM | Comments (0) | TrackBack

The President's Inherent Authority Argument

There are some great posts over at Balkinization examining the President's inherent authority to conduct warrantless surveillance.

Here are some key excerpts:

Marty Lederman, "Inherent Authority" to Violate Federal Law? (Dec. 22, 2005)

"I do not deny that the President has the power as Commander-in-Chief to engage in at least some forms of warrantless surveillance against the enemy in the absence of statutory prohibition. That would be a Youngstown "Category II" case. . . .

But the critical point for present purposes is that, as Prof. Griffin emphasizes, the Nation had exactly this debate in the mid-70s -- after gross abuses in connection with such warrantless surveillance -- and the legislature and Executive agreed to enact FISA, a statute regulating such warrantless surveillance. . . .

That puts us in Youngstown Category III, where the President's constitutional authority to act -- even if he had it in the first place -- is at its 'lowest ebb.' . . .

The Administration's defenders are citing a 2002 dictum by the FISA Court of Review: "We take for granted that the President does have that authority [to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President’s constitutional power." In re Sealed Case, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (emphasis added). That throwaway line -- not germane to the holding in that case -- was almost certainly written by Judge Laurence Silberman, who (I am told) testified in his personal capacity to the same effect in the mid-1970's, when FISA was being considered. The dictum is, in my view, dead wrong. . . . If Silberman and the Bush Administration are correct, then there's no need for FISA at all -- nor for the FISA Court. The President may simply proceed with surveillance on his own iniitiative, if he thinks it will help in the war on terrorism."

Jack Balkin, Youngstown and The President's Power to Torture (July 16, 2004) (provides useful background about Youngstown Sheet and Tube Co. v. Sawyer (U.S. Supreme Court 1952), where President Truman ordered the seizure of steel mills in the name of national security during the Korean War)

"[T]he question before the Court was whether the President's powers as Commander-in-Chief gave him authority in an emergency to seize private property. . . .

Justice Jackson's opinion . . . offered a famous delineation of the possible relationships between the President and Congress:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . .

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our
constitutional system.

. . . . September 11th changed everything, we are told. But it is important to remember that the Justices who decided Youngstown had also seen war, plenty of war. Pearl Harbor was only a decade previous, and since that day the United States had been twice at war, and had continuously sent its forces around the globe to protect its interests. These Justices well understood the importance of national security to national survival. Indeed, they were all appointees of Roosevelt and Truman, Presidents who had taken the country to war. Yet they saw beyond the urgencies of the moment, and the ubiquitous declarations that war had changed everything. They upheld the principle of checks and balances, and rejected the claim of an unlimited Executive. And they helped preserve our democratic system of government in the process."

Posted by Daniel Solove at 02:29 PM | Comments (1) | TrackBack

NSA Surveillance Blog Post Roundups: More Posts

For those interested in blogospheric opinion about the NSA surveillance issue, I've been updating NSA Surveillance: Blog Post Roundup II with new posts I find to be of interest.

Posted by Daniel Solove at 06:35 PM | Comments (2) | TrackBack

Judge Posner's Troubling Call for Massive Surveillance

Judge Richard Posner has written an op-ed in the Washington Post today where he calls for a massive program of surveillance of U.S. citizens -- their email, documents, phone conversations, nearly everything they say or do -- regardless of whether they are suspected of any wrongdoing or not. Posner's argument is quite startling and troublesome. Posner writes:

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

In other words, Posner is saying that so long as the data is gathered by computers, there's no privacy invasion if the government collects everything. It is also odd for Posner to say this, because in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004), he held that even records without identifying information could constitute an invasion of privacy: "Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy." Posner's conclusion that records that are anonymized could still violate people's privacy is a radical one, and I find it hard to square with what he says in the op-ed.

So, taking Posner's argument to the extreme, there's no problem if the government were to wiretap, install video cameras in our homes, collect every document we ever wrote, and so on -- so long as the information were collected by computers and not seen by human eyes. But what about the vast power this gives the government? What about the potential for government abuse? What about the chilling effects on people's speech and freedom? Posner ignores these things.

Posner goes on to write:

The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.

According to Posner, the FISA is too restrictive because it doesn't allow surveillance on innocent U.S. citizens. However, the FISA protects U.S. persons from broad surveillance to prevent the government from systematically spying on citizens. Posner would sweep aside these protections, many of which are in place because of the Fourth Amendment.

Posner says:

Many of the relevant bits [of data for learning about terrorist activities] may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.

And how can we limit the government to just using it for "national security"? What constitutes "national security" versus ordinary crime? As I wrote in an article, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004): "What precisely is 'national security'? Is a mass murderer on the losse a national security issue? Some have even argued that drug trafficking is a natiional security issue." The line between national security and domestic criminal activity is a fuzzy one. Moreover, many government abuses have been done under the cover of so-called "national security."

Posner continues:

The terrorist menace, far from receding, grows every day. This is not only because al Qaeda likes to space its attacks, often by many years, but also because weapons of mass destruction are becoming ever more accessible to terrorist groups and individuals.

If the danger is from weapons of mass destruction falling into the hands of terrorist groups, then perhaps we should devote our resources in tracking down loose nuclear weapons around the world. But establishing a massive surveillance network within the U.S. seems like a diversion from this task.

For more thoughts on Posner's op-ed, see:

Marty Lederman, Judge Posner and "Ad Hoc Initiatives" (i.e., Presidentially Sanctioned Felonies) (Dec. 21, 2005)

Kieren Healy, Posner Forgets Himself (Dec. 21, 2005)

Posted by Daniel Solove at 11:12 AM | Comments (7) | TrackBack

Hypothetical: What If President Bush Were Correct About His Surveillance Powers?

There's been some terrific analysis in the blogosphere about whether President Bush is correct that he had the power to authorize warrantless surveillance. (See here and here for a roundup of posts.) The arguments thus far focus on what the President has already done, but the President has stated that he will continue the warrantless surveillance "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

Suppose the President is right that he has the power to do this based on his "inherent authority" as Commander-in-Chief. The implications are quite alarming. It means that the President, in his sole discretion, can secretly authorize the NSA to engage in electronic surveillance on U.S. citizens until the War on Terrorism is over. This is a war without a foreseeable end. Under his argument, there seems to be no reason why he can't authorize other agencies to engage in surveillance, such as the FBI and CIA. And why does it need to be limited just to wiretaps? Perhaps video surveillance, bugs, searches of homes, gathering documents, and more.

Under his argument, Bush could continue to ignore the requirements of any law that stands in his way. What could Congress do? Congress could try to enact a law to clarify that it wants the President to abide by existing laws. Of course, the President could veto that law, but suppose Congress overrode the veto. According to the President's logic, he could still say that his "inherent authority" allows him to ignore it.

The problem with Bush's argument is that he has articulated virtually no conceivable limits to his power. The stakes of the debate aren't just about what the President has already done. They are about what the President has defiantly declared he has the power to do in the future.

Posted by Daniel Solove at 03:09 AM | Comments (13) | TrackBack

Federal Judge Resigns from the FISA Court

The Washington Post reports:

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Posted by Daniel Solove at 02:58 AM | Comments (1) |