Couple of thoughts about the chapter that I just finished about Bingham’s prosecution of John Wilkes Booth’s co-conspirators (including Mary Surratt).  The obvious irony in this case is that the great civil libertarian argued for a military trial and rejected the application of the Bill of Rights to the defendants.  Here’s the more subtle point, though.  But for the fame that Bingham achieved in this (highly [...]]]> I have now reached the Thirty-Ninth Congress and Bingham’s drafting of Section One of the Fourteenth Amendment, which means that my blogging will cease for a while. (Besides, I think I annoyed enough people with my posts last week.  Next month I look forward to irritating people of a different persuasion when the Supreme Court hears the health care arguments.)

Couple of thoughts about the chapter that I just finished about Bingham’s prosecution of John Wilkes Booth’s co-conspirators (including Mary Surratt).  The obvious irony in this case is that the great civil libertarian argued for a military trial and rejected the application of the Bill of Rights to the defendants.  Here’s the more subtle point, though.  But for the fame that Bingham achieved in this (highly questionable) prosecution, he may not have received a spot on the Joint Committee on Reconstruction and would not have been in a position to write the Due Process Clause into the Fourteenth Amendment. It’s probably going too far to say that Section One of the Fourteenth Amendment rests in part on the conviction of innocent people, but it’s worth pondering.

Recent events, though, show why Smith rests on a questionable understanding of the First Amendment.  When a neutral and generally applicable employment discrimination statute was applied to churches, the Court adopted a “ministerial exception” and distinguished Smith.  When HHS adopted a rule about contraceptives and made no exception for Catholic institutions, howls went up that this violates religious freedom. [...]]]> I’ve never been a fan of the Court’s holding that a neutral statute of general application is constitutional even if it imposes a significant burden on a religion.  There is decent evidence that this was contrary to the original understanding of the Fourteenth Amendment, Michael McConnell wrote a terrific article making the case against the decision when it first came out, and others have offered plenty of criticisms.

Recent events, though, show why Smith rests on a questionable understanding of the First Amendment.  When a neutral and generally applicable employment discrimination statute was applied to churches, the Court adopted a “ministerial exception” and distinguished Smith.  When HHS adopted a rule about contraceptives and made no exception for Catholic institutions, howls went up that this violates religious freedom.  And those howls are right.  Now I’ll grant that you could say that this is just a matter for Congress or state legislatures. (In other words, religious freedom could mean more than what the Court says is constitutionally required, though that doesn’t explain the “ministerial exception” case.) But I think that the Catholic organizations upset about the new regulation ought to have a constitutional claim.  But they don’t.

My take is that the panel majority really wants to say that any ban on same-sex marriage is unconstitutional.  But due to a concern that the Supreme Court will not agree, they came up with a narrower rationale. Because the CA Supreme Court read the State Constitution to say that same-sex couples could marry (and many did), it is unconstitutional to remove that right even if it might be constitutional not to grant the right in the first place.

This line of reasoning, if you take it seriously, is dangerous.  First, it basically says that people [...]]]> The Ninth Circuit’s decision invalidating Proposition 8, which overruled the California Supreme Court’s holding that the state could not prohibit same-sex marriage, is here.  I am unpersuaded by the majority’s analysis.

My take is that the panel majority really wants to say that any ban on same-sex marriage is unconstitutional.  But due to a concern that the Supreme Court will not agree, they came up with a narrower rationale. Because the CA Supreme Court read the State Constitution to say that same-sex couples could marry (and many did), it is unconstitutional to remove that right even if it might be constitutional not to grant the right in the first place.

This line of reasoning, if you take it seriously, is dangerous.  First, it basically says that people have a vested right in a State Supreme Court’s interpretation of its constitution. Really?  I wonder what the Ninth Circuit would have said if the California Supreme Court had simply reversed itself –is stare decisis now constitutionally mandated in some cases? Second, the only mechanism for people to express their disapproval for a state supreme court opinion that they dislike will be to recall, impeach, or not retain the judges, as was done in Iowa after that state’s same-sex marriage decision.  I submit that we are better off with a system where some states use referenda to repeal unpopular decisions (even ones you like) than having all states eject judges when the voters don’t like one of their many decisions. Third, the Court’s analysis would render many state referenda constitutionally suspect (at least those that were done in response to a court decision). Finally, how would this analysis apply to the Federal Constitution?  Are “We The People” prohibiting from amending the Constitution to overrule Citizens United because that would take away a First Amendment right from corporations that they are now happily exercising?

Of course, I don’t take the panel’s reasoning seriously.  Neither will the en banc Court, I think.  Whether they will bite the bullet and just say that a prohibition on same-sex marriage is invalid–pure and simple–is another question.

UPDATE:  I hasten to add that President Obama still officially holds the view described by the Ninth Circuit as irrational.

Among the reasons this is worth reading (even if you don’t care about admiralty):

1.  Moragne goes into the history of wrongful death and explains why the common law did not provide a remedy.  The answer is that the “felony-merger” doctrine in England held that all property owned by a [...]]]> This week in my Admiralty class I taught my favorite case–Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970). This unanimous opinion, written by Justice John Marshall Harlan, held that a wrongful death action existed in general maritime law. Moragne overruled The Harrisburg, an 1886 case that followed the common law and said that there was no wrongful death remedy in admiralty. Many scholars believe that this is the best Supreme Court opinion, if by best you mean”most professional.”

Among the reasons this is worth reading (even if you don’t care about admiralty):

1.  Moragne goes into the history of wrongful death and explains why the common law did not provide a remedy.  The answer is that the “felony-merger” doctrine in England held that all property owned by a convicted murderer went to the Crown.  Thus, there could be no recovery by a private party.  Even though no such doctrine existed here, our courts blindly adopted the English rule.

2.  The Court grounds its decision to overrule its precedent by doing an exhaustive review of the erosion of the “no wrongful death” rule, by looking at state statutes, Acts of Congress, international law, and academic criticism.

3.  The Court explains why Congress’s decision to create a wrongful death remedy in international waters (in the Death on the High Seas Act) does not preclude the creation of a judicial equivalent in territorial waters where state law does not do so.  That part of the opinion involves a thoughtful discussion of federalism, statutory interpretation, and the evolution of the admiralty remedy of unseaworthiness (which I’ll talk more about next week).

4.  The Court then concludes by offering a detailed explanation about why stare decisis does not counsel in favor of sticking with precedent in this instance, largely because the current rules promotes uncertainty and leads to all sorts of inconsistent outcomes in similarly situated cases.

Take a look sometime–you’ll be glad you did.

————————————————————————————————————————————————-

Those arguing that insurance mandate in the recent health care reform legislation, the Patient Protection and Affordable Care Act (ACA), is unconstitutional have prominently and repeatedly advanced the claim that the mandate’s punishment of personal inactivity is an unprecedented exercise of federal power. That contention is simply and unequivocally false. Federal criminal law contains scores of provisions that facially or in application punish inactivity by individuals. These criminal statutes regulating inaction include not just traditional [...]]]> As the briefs in the Affordable Care Act litigation are still being filed before the Supreme Court, I was intrigued by this new paper by Professor Corey Yung on “The Incredible Ordinariness of Federal Penalties for Inactivity that sheds new light on the problem before the Justices.  Here is the Abstract:

————————————————————————————————————————————————-

Those arguing that insurance mandate in the recent health care reform legislation, the Patient Protection and Affordable Care Act (ACA), is unconstitutional have prominently and repeatedly advanced the claim that the mandate’s punishment of personal inactivity is an unprecedented exercise of federal power. That contention is simply and unequivocally false. Federal criminal law contains scores of provisions that facially or in application punish inactivity by individuals. These criminal statutes regulating inaction include not just traditional crimes by omission where a common law duty is violated, but also offenses related to registration, record keeping, possession, receipt, preventive measures, nondisclosure, organizational, misprision, and obstruction. By providing this account of criminal laws punishing and regulating inactivity, this Essay puts the ACA’s insurance mandate in the larger context of federal laws at issue if the mandate is held to be unconstitutional by the Supreme Court. The case of the ACA in regard to the Commerce and Necessary and Proper Clauses is not merely about the enforcement mechanism used for a single health care law as many have contended–it is about the shape and scope of federal criminal law that has been in place for over fifty years.

————————————————————————————————————————————————-

Of course, if you try to dismiss Professor Yung’s examples as the regulation of “activities,” then the decision not to purchase health care is probably also an activity.

If people were confident about how the the rankings were done, then that influence might be acceptable.  But most faculty do not think that the methodology used by U.S. News is sound.  I’ve noted before that they give no weight to [...]]]> One of the most common complaints that you hear from law professors and deans is that the U.S. News and World Report rankings exert too much influence over legal education.  If given a choice between doing something to boost its ranking or doing something to help students, the incentives for a school are heavily weighted towards boosting the ranking.  This is true because rankings are widely publicized and provide a simple way for prospective students, alumni, and other interested constituencies to evaluate law school performance.

If people were confident about how the the rankings were done, then that influence might be acceptable.  But most faculty do not think that the methodology used by U.S. News is sound.  I’ve noted before that they give no weight to student or faculty diversity, and Malcolm Gladwell wrote an essay observing that the rankings do not take cost-effectiveness into account (which is especially strange in this era).  Granted, coming up with a standard that everyone would agree upon is impossible, but we can do better.

What is to be done?  The answer to monopoly is competition.  We need other organizations to conduct law school rankings. This would give people more information, especially if the alternatives explicitly take factors into account (e.g., cost) that are absent from the U.S. News rankings. It would also diminish the power of any single organization or person over law schools, and make gaming the ranking system far more difficult.

No single school can be trusted to do this for conflict-of-interest reasons, but there are plenty of other candidates.  The ABA and the AALS are two obvious ones assuming that no other commercial outfit wants to compete with U.S. News.  Or, dare I say it, a consortium of law blogs could organize and then disseminate these rankings for free.  It’s time to stop whining about U.S. News and start doing something to give schools better incentives to improve legal education.

One way to think about this is to look at the Architectural Works Copyright Protection Act, which was enacted in 1990. Prior to that time, architecture (like fashion) was generally unprotected and the incentives for architects came from what they got paid for executing a commission.  If people wanted to sell merchandise depicting a building, they could do so freely.  Now that isn’t true, though in practice most [...]]]> Much like Jason in “Friday the 13th,” the idea of having a federal statute to protect fashion designs never dies. I’ve posted before about why I think that kind of measure is unnecessary and would be a bad idea, but Professor Jeannie Suk had an op-ed in the NY Times on Sunday arguing once again for this proposal.

One way to think about this is to look at the Architectural Works Copyright Protection Act, which was enacted in 1990. Prior to that time, architecture (like fashion) was generally unprotected and the incentives for architects came from what they got paid for executing a commission.  If people wanted to sell merchandise depicting a building, they could do so freely.  Now that isn’t true, though in practice most buildings have a copyright value of zero.

Here’s are some questions.  Is architecture better as a result of these new copyright incentives?  Or was this just a measure that redistributed wealth from average folks to a few well-known architects?  The latter isn’t a compelling rationale and, in my view, that’s all that would happen if Congress enacts fashion design protection.

(BTW, the Super Bowl is coming to my hometown, hence I thought that the photo of Mrs. Brady was appropriate.)

Given the recent tussles over copyright policy, I want to endorse an idea put forward by Larry Lessig and others–copyright renewal fees.  To retain a patent, a firm has to pay a fee to the Patent Office every couple of years.  In my article on patent trolls, I called for a significant increase in those fees to make it more costly to hold dormant patents, which would encourage people to either use them or abandon them.

The same principle could be applied to copyrights that are registered (which obviously does not cover all copyrighted material).  Say you charged $50 every two years to renew a copyright registration and said that once something was registered you have to keep it registered to maintain your rights.  Many copyrights would [...]]]>  

Given the recent tussles over copyright policy, I want to endorse an idea put forward by Larry Lessig and others–copyright renewal fees.  To retain a patent, a firm has to pay a fee to the Patent Office every couple of years.  In my article on patent trolls, I called for a significant increase in those fees to make it more costly to hold dormant patents, which would encourage people to either use them or abandon them.

The same principle could be applied to copyrights that are registered (which obviously does not cover all copyrighted material).  Say you charged $50 every two years to renew a copyright registration and said that once something was registered you have to keep it registered to maintain your rights.  Many copyrights would not be renewed, either because the owners would not think it worthwhile or because there would be nobody to pay the fee for an orphan work.  So in addition to raising some revenue, material would enter the public domain more quickly and difficulties created by unclear title would be resolved in favor of free access.

Now I know some people will argue that this violates the Berne Convention, but I doubt that it does.  Would it create some inconsistency between our copyright law and European copyrights?  Yes.  But a harmonized system that is poorly structured is not, in this instance, superior to a diverse one with better policies here.

Not necessarily, of course.  But the position that I’ve taken in my essay is that Congress can require individuals to buy health insurance but probably cannot enact a compulsory education law.  Food for thought.

It seems to me that trade secret law provides a better model.  The inquiry there is whether the owner of the information takes reasonable precautions to preserve its secrecy.  Disclosure to a third-party does not automatically end legal protection, and custom is relevant for defining whether the third-party disclosure constitutes a waiver.  Now adopting this standard would probably lead [...]]]> While I’m not a Fourth Amendment expert, that won’t stop me from saying something about Jones.  I think that Justice Sotomayor’s concurring opinion, which calls into question the rule that there is no reasonable expectation of privacy when information is disclosed to a third-party outside of a confidential relationship recognized by the common law (lawyer/client, doctor/patient, etc.), should start a conversation about abolishing this outdated tort concept.

It seems to me that trade secret law provides a better model.  The inquiry there is whether the owner of the information takes reasonable precautions to preserve its secrecy.  Disclosure to a third-party does not automatically end legal protection, and custom is relevant for defining whether the third-party disclosure constitutes a waiver.  Now adopting this standard would probably lead to more intrusion upon seclusion claims, but it is also more realistic in the social media age.  I doubt that I’m the first one to suggest this approach, but I don’t know.

UPDATE:  Some quick research shows that a Note in the Georgetown Law Journal did make this proposal with respect to the Fourth Amendment, though not for tort law.  See Andrew Riggs Dunlap, Fixing the Fourth Amendment With Trade Secret Law, 90 Geo. L. J. 2175 (2002).

Your post on statutes prohibiting physicians from disclosing the sex of the child was interesting and timely. I recently read an article in the Canadian Medical Association Journal by Dr. Rajendra Kale advocating a similar policy for Canadian physicians. And I think the comments in response to your blog brought up some wonderful points about the potential constitutional problems this raises.

Another issue that I find fascinating that seems to receive less attention is the possibility that this [...]]]> Recently I put up a post asking if a state statute prohibiting doctors from disclosing the gender of a fetus to the parents would be constitutional.  I received the following thoughtful reply from Margo Kaplan, a Visiting Assistant Professor at Brooklyn Law School.  Here response is below the fold:

Your post on statutes prohibiting physicians from disclosing the sex of the child was interesting and timely. I recently read an article in the Canadian Medical Association Journal by Dr. Rajendra Kale advocating a similar policy for Canadian physicians. And I think the comments in response to your blog brought up some wonderful points about the potential constitutional problems this raises.

Another issue that I find fascinating that seems to receive less attention is the possibility that this may violate physicians’ ethical and legal requirements to obtain informed consent. The American Medical Association Opinion 8.08, for example, requires physicians to disclose “relevant medical information” and states that “[t]he quantity and specificity of this information should be tailored to meet the preferences and needs of individual patients.” While these ethical guidelines are not law, several states use professional standards of conduct to determine if a physician has violated a patient’s legal right of informed consent.

This raises the really interesting question of whether and in what context sex of a fetus is relevant medical information. In his article, Dr. Kale dismisses sex as “not medically relevant” when sex-linked genetic diseases are not a concern. For most women obtaining an abortion, the sex of the fetus is not relevant and, in fact, might be something they would prefer not to know.

But, as morally abhorrent as many find it, the sex of the fetus is clearly relevant to many women choosing whether to undergo a medical procedure. For example, consider a woman who is obtaining an abortion based on her belief that the fetus is female. The physician who will perform the abortion, however, determines the fetus is male during a preliminary ultrasound. Is he ethically required to inform his patient of this information before the procedure? The question becomes particularly thorny where patients cannot obtain the information elsewhere.

Sex of the fetus is clearly relevant to many women making treatment decisions; but is it relevant medical information? Informed consent does not require physicians to disclose non-medical information that would be relevant to the patient’s decisionmaking, such as whether a patient’s spouse is planning to leave him should the surgery result in scarring. But sex of the fetus does not fall neatly into the category of  “non-medical” information. On the one hand, barring genetic illnesses, sex of the fetus is not information that will influence the health of the mother or fetus. On the other hand, it is information about her pregnancy and its outcome that the physician obtains solely through treatment of the patient and to which he alone has access.

The answer to this question has implications in other contexts. For example, if sex is not medically relevant, is paternity? A particularly sympathetic hypothetical is that of a married woman who was raped by a man not her husband, and who only wants to continue the pregnancy if the child is her husband’s. Is it ethical for a physician to refuse to disclose her paternity test results until the choice of an abortion is foreclosed to her?

This also raises questions in the context of intersex children; if a physician is aware that a fetus is intersex, is he obligated to disclose that information to the mother? The answer reflects the current debate over whether the medical profession should view as a “disorder” sex that does not fit into the binary classification of male or female.

These questions reflect a deeper problem in the proposed policies. Our interpretations of “relevant medical information” in the context of these hypotheticals are often simply code for “appropriate reasons for terminating a pregnancy.” Even if the state can regulate these disclosures—or physicians can collectively agree to adopt a non-disclosure policy—without running afoul of informed consent principles, do we want them to?

Mr. COX:  I desire to ask the gentleman whether he was not beaten in his canvass for Congress because he belonged to a sectional party?

Mr. BINGHAM:  I think the gentleman should not ask a question like that; but I answer the gentleman that I do not believe that I was beaten at all, but simply swindled out of the election. The district in which I got some ten thousand votes myself, and which had sent, I am informed, about nine thousand men to the war, is reported and certified to have increased its Democratic vote over that of any former [...]]]> I’m rather fond of this exchange between John Bingham and one of his colleagues in the lame-duck session after he lost his congressional race in 1862:

Mr. COX:  I desire to ask the gentleman whether he was not beaten in his canvass for Congress because he belonged to a sectional party?

Mr. BINGHAM:  I think the gentleman should not ask a question like that; but I answer the gentleman that I do not believe that I was beaten at all, but simply swindled out of the election. The district in which I got some ten thousand votes myself, and which had sent, I am informed, about nine thousand men to the war, is reported and certified to have increased its Democratic vote over that of any former election. According to the returns of that district, the more of its citizens that volunteer and go to war, the larger the Democratic vote in the aggregate by reason of the absence of thousands of its voters on the battlefield on election day. I beg the gentleman further to remember that no county of the district which I represent has, either at the last election or any other, repudiated me or my principles. Let the gentleman put that in his pipe and smoke it.

——————————————————————————————————————————————–

No doubt we will soon see an originalist article describing the “Put That in Your Pipe and Smoke It” theory of equal protection.

The problem with that point is that the idea/expression dichotomy is almost never used to invalidate a copyright, and fair use is only rarely enforced.  A functional (dare I say pragmatic?) approach would recognize this fact and conclude that these Potemkin safeguards are totally inadequate for the First Amendment interest at stake.  Protecting the [...]]]> One myth should be exploded about the Court’s analysis of the relationship between the Copyright Clause and the First Amendment. In both Eldred and Golan, Justice Ginsburg says that heightened scrutiny of copyright statutes on free speech grounds is not required because the “idea/expression” dichotomy and the “fair use” doctrine protect the First Amendment interest. As long as Congress does not disturb those “traditional contours” of copyright protection, there isn’t a constitutional problem.

The problem with that point is that the idea/expression dichotomy is almost never used to invalidate a copyright, and fair use is only rarely enforced.  A functional (dare I say pragmatic?) approach would recognize this fact and conclude that these Potemkin safeguards are totally inadequate for the First Amendment interest at stake.  Protecting the public domain from congressional poaching would be much more effective, but that just went by the boards.

Justice Breyer and Justice Alito deserve praise for this dissenting from this mess.  Justice Ginsburg–not [...]]]> Today the Supreme Court issued its opinion in Golan v. Holder, and it’s terrible.  The result can be justified, but the opinion is way, way too broad in its statements about the public domain.  The Court says that this case is analogous to Eldred when it is not, and ignores the English copyright history that formed the backdrop of the Copyright Clause.  Apparently, that Clause should now be read to say that as long as the idea/expression dichotomy and fair use are retained, Congress can grant a copyright to anything so long as it has a rational basis for concluding that this would have a positive effect on some creators or distributors.

Justice Breyer and Justice Alito deserve praise for this dissenting from this mess.  Justice Ginsburg–not so much.