Archive for the 'Law and Society' Category

Cory Doctorow is teaching a course on copyright, DRM, and IP policy at USC. His syllabus contains a wealth of well-chosen links, which make for a great introduction to the subject. The lectures are available for download here (podcast subscription link).
[tags]IP policy, DRM, doctorow[/tags]

Like most people interested in social science, I am a social misfit. That is, I have various and sundry habits that upset a certain type of person: I slurp my soup, swear publically, really don’t like ironing my pants, and sometimes I even wear a horrible moustache. These are all forgivable sins, I hope. But for someone like me, it never hurts to have a backup: somewhere where I could go and socialize without my more autistic tendencies getting in the way. Facebook seemed like a logical choice.

I suppose it wasn’t.

First, there are certain terms used in legal contracts that annul the entire point of a contract in the first place. A contract is, by necessity, temporary. For the contract is nothing more than the expression of two or more wills being expressed to make a promise, and to bind themselves with some pre-established penalty. After the will breaks, and the penalties laid out, there is nothing left of the contract. That is, either party may plausibly fail to uphold the contract, and after penalties are laid out, the contract can be renegotiated. So when we hear of words like “inviolable” or “irrevocable”, it is smoke and mirrors: no such things may be claimed by anyone in a genuine contract. When they are asserted, i.e., by the state over its citizens, it is a product of the eclectic bases of law which may or may not have anything to do with social contracts. And the force applied by the state is a special case; nothing “irrevocable” may be claimed by private entities, unless the meaning is, “irrevocable without penalty”.

Facebook’s terms of service tell us that “By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.” Luckily, they weren’t all that serious about use of the word “irrevocable”, since the removal of content leads to the expiry of the license. One wonders, though, what the point of the word may be, especially when conjoined with fun Highlander adjectives like “perpetual”.

My second point requires some priming. Nobody here needs to be reminded that the field of information ethics is defined, in part, by its emphasis upon the importance of privacy. That is, at minimum, a person should be able to have a say how their personal information is shared. There is a distinction, of course, between private information and intellectual property: demographic details are ethically different from music and art, in that art is by definition the stuff that has been intended to be made public, while personal information cannot be presumed to be. With this distinction follows a few ethical implications: while one may ethically share art (in the non-profit sense) without penalty — since that is necessarily in line with its purpose as art — one may not share personal information unless informed consent has been given.

The clauses ask us to re-examine the distinction between art and personal information to see if it hasn’t gone up and dissapeared. No, all we have is “User Content”, which is implied to be “the photos, profiles, messages, notes, text, information, music, video, advertisements and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other Users (collectively the “User Content”)”. We do not have, here, two categories — one having to do with who I am as a person, the other to do with my silly pictures of my fat cats and failed attempts at flirting online. There is a lumpencategory, where the two run together. Evidently, they claim the right to conflate fiction and reality, and then give that to whoever they want — protests to the contrary notwithstanding. In reassuring language, we are told that Facebook won’t do this or that. “Legally can’t” is absent entirely, not even suitably and reasonably restricted to the few intelligible domains.

I expect this is all par for the course. Certainly the same sorts of thing have been alleged against Deviant Art. My place of work produces a disincentive for innovation by claiming for itself the legal right to any improvements I personally make.

The only solution is to become a nonperson, and keep my art to myself.

More good news from New Jersey.

Amid growing unease about capital punishment and a state moratorium on executions, a legislative commission recommended today that New Jersey become the first state in more than 35 years to abolish the death penalty. With just one of its 13 members dissenting, the commission said there was “no compelling evidence” that
the death penalty served a legitimate purpose and increasing evidence that it “is inconsistent with evolving standards of decency.” The panel recommended replacing capital punishment with the sentence of life in prison without the possibility of parole.

The death penalty is a moral outrage, unbecoming to any civilized nation in the 21st Century. Banning it would do New Jersey proud.[tags]law, death penalty[/tags]

Brian Tamanaha tells the following cautionary tale…

about a young federal public defender handling a case, United States v. Rewald, which involved the CIA and several hundred documents containing classified information. One day, about a month into the trial, following a grueling cross-examination by the defense attorney of a witness from the CIA, which clearly harmed the government’s case, the federal prosecutors asked the judge for a closed hearing. In the closed hearing, with only the lawyers and the judge present, the lead prosecutor, from the U.S. Department of Justice, requested that the judge hold the defense attorney in criminal contempt for asking questions of the CIA witnesses that elicited prohibited classified information in open court.

It turns out that the classified information was made up by the CIA specifically to mislead another federal agency (the IRS).

The official admitted that none of the stories were in fact true. However, he insisted that they were not “lies.” He said that they were “creative stories.” When I asked him to tell me the difference between “lies” and “creative stories,” given that both are untrue, he said (I paraphrase):

“Untruths are not ‘lies,’ but ‘creative stories,’ when they are made up in the interest of protecting the country. And the CIA is protecting the country.”

This was the testimony of a high ranking CIA official, under oath, in federal district court. This kind of mindset, needless to say, can justify almost anything.

On the basis of that evidence, the judge went on to find the defendant guilty as charged, and Wilson spent the next twenty years in jail — until his conviction was overturned by another federal district court judge. What happened to Tamanaha? Well, head over to Balikinization and read for yourself.

[tags]law, cia[/tags]

Tom Barnett’s speech on the Interoperability between Antitrust and IP Policy is the first major DOJ policy statement on the competitive effects of digital rights (or restrictions) management (”DRM“). The importance of DRM cannot be overstated. Arguably, DRM is the pivotal information technology issue of our time. Let me highlight just a few aspects of the effects of DRM, and note how ambiguous they are in terms of consumer welfare.

• From an economic point of view, DRM introduces engineered scarcity by transforming non-rivalrous information goods into rivalrous goods.
• Engineered scarcity drives up the price for information goods. The profits from higher prices sustain the legal distributors and some creators of DRM’ed information goods.
• DRM has the potential to spur innovation and increase the production of some information goods by allowing producers to recoup their R&D costs.
• DRM has the potential to diminish innovation and decrease the production of derivative or complementary information goods and of interoperable hardware.
• DRM has the power to create fully integrated verticals, locking content into a specific “trusted” distribution and hardware environment.
• DRM shifts control over content from the consumer to the holder of the content distribution rights.
• DRM shifts control over general computing hardware from the consumer to the holder of the content distribution rights.
• DRM allows for unilateral, post-acquisition changes in the utility of user-acquired information goods.
• DRM is an exclusive connection technology. It connects information goods with a certain hardware environment, with certain persons (the authorized users), and with its origin (the content distribution rights holder).
• DRM pushes markets towards high entry barrier platform competition and away from low entry barrier application competition.

Barnett deserves applause for taking on these incredibly complex issues.

As an initial matter, I am delighted to see that Barnett fully endorses the significance — maybe even the primacy — of dynamic efficiencies.

It follows from the Schumpeterian view that antitrust law, with its focus on improving consumer welfare, has a keen interest in protecting innovation. Fostering innovation requires recognition of the benefits of dynamic efficiency and the dangers of focusing myopically on static efficiency.

I also agree that in some R&D intensive industries that require massive up-front investment in order to create leapfrog information goods, strong (but narrow) patent protection is a proven way to ensure that the innovator internalizes a fair share of the benefits that he or she creates (innovative drugs come to mind.) I am skeptical, however, that — without more — a generalized case for strong copyright can be made on the basis of the incentives theory alone, and I am even more skeptical that arguments for strong copyright protection necessarily support arguments for DRM if consumer welfare is the evaluative standard. As an initial matter, Barnett subscribes to a strong version of the antitrust-IP harmony theory.

[S]trong intellectual property protection is not separate from competition principles, but rather, is an integral part of antitrust policy as a whole. Intellectual property rights should not be viewed as protecting their owners from competition; rather, IP rights should be seen as encouraging firms to engage in competition, particularly competition that involves risk and long-term investment.

Now the goal of IP policy is not to create incentives through exclusive rights. It is to increase the quantity, quality, and variety of information goods available to the consumer. Consumer welfare is the goal that IP and antitrust policy share. However, the means by which antitrust and IP policy promote the policy goals of “more, better, and different” are not identical. IP law relies on exclusive rights, antitrust relies on open competition. Some exclusive rights may foster open competition, others may serve primarily to exclude competitors from the marketplace. The difference in means may ultimately be more significant than the common goal. So I am somewhat less sanguine about the IP/antitrust harmony thesis.

Barnett then walks through three objections to IP/DRM combos that are advanced by the “access faction” against the “asset faction,” using iTunes as an example and explains why he is not convinced by them.

1. “[C]onsumers are locked into buying songs only from the iTunes service and that they will have to pay too high a price for iTunes songs.” Not true, says Barnett, because users are free to upload songs from other sources, they can “re-record an iTunes song in an MP3 format,” and iTunes has brought prices for songs down.
2. Apple is following a printer/ink strategy, selling cheap devices and expensive songs. Barnett is not convinced, because, if anything, Apple is selling expensive devices and cheap songs.
3. “A third theory is that, darn it, ‘information just wants to be free.’ That quote is so much in use on the Internet that I could not pin down its original source. Wikipedia attributes it first to a participant at a computer hacker’s conference in 1984. In any event, this argument is not based on competitive effects and consumer welfare. Information may want to be free, but information creators want to be paid — they will not create without rewards.”
4. Lastly, the song/player combo harms competitors, which is neither here nor there from an antitrust standpoint, unless the continued survival of a competitor is essential to maintaining competition in the marketplace.

This is a powerful and articulate defense of the “asset faction’s” key arguments, and I am curious to see how the “access faction” will respond. I find Barnett’s arguments as to (2) and (4) most convincing. As to (1), it all depends on the facts of the individual case. A semi-open system is certainly less of an antitrust issue than one that is fully locked down. As long as free mp3s play alongside a4ps, the player is indeed a dual use good, and the ability to de-DRM one’s collection of songs via burn and rip somewhat diminishes the lock-in effect. However, DRM policies may change retroactively, but I understand the argument that antitrust enforcement should deal with those issues if and when they arise. The weakest point, in my view, is (3), which is also the most fundamental.

First, I disagree with Barnett’s categorical claim that “information creators want to be paid — they will not create without rewards.” Some do, some don’t. Where did Barnett turn to, when he researched the origin of “information wants to be free?” He turned to Wikipedia, an encyclopedia created entirely by unpaid volunteers. The explosion of the blogosphere, the existence of Linux and other open source projects, the success of Amazon, driven by user-contributed book reviews, and the world of online academic publishing (think SSRN) belies the claim that rewards are a necessary condition for the creation of knowledge goods, at least the kind of direct monetary rewards that IP/DRM are designed to generate. As I said initially, I agree that some information goods require incentives qua exclusivity grants, but we should be cautious to make more general claims on that basis.

Second, while there is no reason to focus on exclusive rights as the only — or even the primary means — for compensating content creators, it is here that I see the greatest shortcoming of the “access faction.” The “access faction” lacks a convincing creator remuneration model. Unless the proponents of less IP/DRM and greater access can make a convincing case for the commercially profitable creation of information goods that does not rely on transforming non-rivalrous goods into rivalrous goods via IP/DRM, it will be hard to overcome the (properly qualified) claim that “information creators … will not create without rewards.” IP/DRM is a proven tool to compensate artists, there can be no doubt about that. But it may not compensate artists very well and it may impose extraordinary opportunity costs on society. Antitrust enforcement should ensure that there is commercial and legal room for alternative creator remuneration concepts to develop, because in practice, IP/DRM is not just a tool (nothing ever is), IP/DRM is also a particular way of doing business. And, quoting Barnett quoting Schumpeter, antitrust should never protect existing business models from leapfrog competition

which strikes not at the margins of the profits and the outputs of the existing firms but at their foundations and their very lives.

This is an extraordinarily important and fruitful debate. I am glad to see that the DOJ leadership is getting involved in it.

NOTE: Cross-posted (in slightly updated form) at the Antitrust Review.

[tags]antitrust, IP, DRM, itunes, barnett, doj, policy[/tags]

In a major victory for the ACLU, a Michigan federal district court held the NSA’s surveillance program, a key part of the war on civil liberties, unconstitutional and ordered it ended immediately. Here’s from the opinion:

For all of the reasons outlined above, this court is constrained to grant to Plaintiffs [= ACLU] the Partial Summary Judgment requested, and holds that the TSP [= the NSA Terrorist Surveillance Program] violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law. Defendants’ [= NSA] Motion to Dismiss the final claim of data-mining is granted, because litigation of that claim would require violation of Defendants’ state secrets privilege. The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of the factors required to be met to sustain such an injunction have undisputedly been met. The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.

As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264.

If you want to know what this does to the legitimacy of the spying program, check out Brian’s post below.
[tags]ACLU, NSA[/tags]

Update your links to this must read blog.

Suppose you spent the last eight weeks leveling up in a massive multiplayer online game to obtain a particular armor, only to find out that two days later the online game company took away some of the protective effects of that armor. Do you have a legal remedy for the devaluation of your virtual property? Does it matter whether the company discriminates against you personally (e.g., you’re so good in combat that other players have complained and the company decides to impose an handicap on you alone) or whether it adjusts the properties of items with effect inter omnes (e.g., the Starcraft 1.04 patch is still a sore topic for me, because it completely killed my Zerg game). Michael Meehan in a recent paper examines some of these questions, many of which are unchartered legal territory in the US and elsewhere. Michael draws a useful distinction between what happens in the context of a game and what happens to the game itself. As to the latter, he concludes that game companies have no obligation to compensate players for any loss of virtual property if the game is simply terminated.

Most players would expect to play a game and keep virtual property as long as the game is around – not after the company has decided to terminate the game.

In contrast, while the game is up and running, unjust destruction and devaluation of virtual property may give rise to liability. Put differently, Michael proposes that game companies must have legitimate business reasons for devaluation. Balancing the game would probably qualify as a legitimate reason. Taking away my hard-earned armor because I’m too good at melee combat probably wouldn’t. Michael derives the normative standards for evaluating the company’s conduct from a comparison with legal rules involving real-world property, such as the duties of bailees, good cause, good faith, and takings.

In order to get to the virtual property question, one must first find that the EULA is not the last word between the gamer and the company, and Michael raises a series of good questions in that regard. But ultimately, at least in my view, there must be a way for a provider of virtual worlds to conclusively disclaim the creation of and of gamers’ rights in virtual property. Rights and entitlements are mostly questions of justified expectations that the legal system chooses to protect. As long as a provider of virtual worlds does not promise persistence, consistency, or even fairness, as a gamer I can’t just import my real-world sensibilities and expectations. No real-world lawmaker has the normative freedom of a game designer, as “ought always implies can.” Unlike in the real world, the natural laws of virtual games are very much in the hands of the designer. For all intents and purposes, the designer is god, and thus the baseline expectations of the inhabitants of virtual worlds should be guided by voluntarism as the operative theological doctrine.

That said, I am not suggesting that no in-game virtual property rights can be created, to the contrary. Commercial gaming environments compete for players. One critical aspect of that competition may turn out to be the bundle of virtual property rights that a company is offering to its gamers. Some worlds might offer a limited guarantee of persistence, in-game referenda on balancing issues, and (as some already do) official exchange rates between in-game and real world currency. Notably, any significant company-initiated or maintained commercial interface between the real and the virtual world (e.g., the sale of in-game property for real-world cash from the company to the gamer) is likely to transport certain justified expectations of persistence, consistency, and fairness from the real world into the virtual environment. (In contrast, player-to-player trade of in-game items on eBay, for example, should leave in-game expectations unchanged.)
[tags]virtual property, voluntarism[/tags]

According to the NYT:

After months of resistance, the White House agreed Thursday to allow a secret intelligence court [the FISA court] to review the legality of the National Security Agency’s program to conduct wiretaps without warrants on Americans suspected of having ties to terrorists. … The aim of the plan, Attorney General Alberto R. Gonzales told reporters, would be to “test the constitutionality” of the program. The plan, brokered over the last three weeks in negotiations between Senator Arlen Specter and senior White House officials, including President Bush himself, would apparently leave the secretive intelligence court free to consider the case in closed proceedings, without the kind of briefs and oral arguments that are usually part of federal court consideration of constitutional issues. The court’s ruling in the matter could also remain secret.

Just so that I get this right: The constitutionality of the secret NSA large-scale surveillance program is to be reviewed by a secret court in secret proceedings with a ruling to remain secret. And we call that what? Judicial review? What ever happened to the principle of open and public adversarial trials as the cornerstone of the American justice system and the currency with which we underwrite the legitimacy of the legal system as a whole? Unless there is a truly compelling reason for spiriting away a constitutional challenge to a potentially unlawful government program from the Article III courts and from public accountability, this “deal” has all the trappings of a dangerous farce, designed to lend further legitimacy to irregular, closed-door, ad hoc proceedings.

UPDATE: Jack Balkin’s analysis of the Bush/Specter deal is a must read. Here’s Jack’s conclusion:

And that curious fact leads us directly to section 801, which, it turns out, is actually the most important part of the bill; the rest is mere camouflage. Section 801 offers nothing less than Congressional imprimatur for the President to go outside of FISA whenever he likes. For section 801 states that “Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.” This restores the very language that was repealed when FISA was created to constrain and channel the President’s powers. And if you look closely at the bill’s proposed additions to section 109 of FISA, you will see that FISA would now prohibit electronic surveillance except as authorized by statute “or under the Constitution.” Similarly, 18 U.S.C. 2511(2)(e) used to say that FISA was the exclusive means by which electronic surveillance was legally authorized. The Specter bill changes that to read that electronic surveillance is authorized “under the constitutional authority of the executive or the Foreign Intelligence Surveillance Act of 1978.” Get the idea? The President can always do an end run around any procedures that FISA offers as long as he claims inherent authority under Article II. If Specter’s bill passes, all of FISA’s limitations and procedural safeguards won’t be worth the paper they are written on. Specter will have written the Administration’s Article II on steroids theory into law! … Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.

[tags]fisa, civil liberties[/tags]

Floyd Rudmin, Professor of Psychology at the University of Tromso (Norway), provides an interesting argument for why the NSA’s large-scale data mining operations are extremely unlikely to uncover terrorists, unless we assume a very high base rate of terrorists. (Hat tip to Bruce Schneier.) According to Rudmin:

The US Census shows that there are about 300 million people living in the USA. Suppose that there are 1,000 terrorists there as well, which is probably a high estimate. The base-rate would be 1 terrorist per 300,000 people. In percentages, that is .00033%, which is way less than 1%. Suppose that NSA surveillance has an accuracy rate of .40, which means that 40% of real terrorists in the USA will be identified by NSA’s monitoring of everyone’s email and phone calls. This is probably a high estimate, considering that terrorists are doing their best to avoid detection. There is no evidence thus far that NSA has been so successful at finding terrorists. And suppose NSA’s misidentification rate is .0001, which means that .01% of innocent people will be misidentified as terrorists, at least until they are investigated, detained and interrogated. Note that .01% of the US population is 30,000 people. With these suppositions, then the probability that people are terrorists given that NSA’s system of surveillance identifies them as terrorists is only p=0.0132, which is near zero, very far from one. Ergo, NSA’s surveillance system is useless for finding terrorists.

If the odds are that low, why would anyone engage in what can only be called an exercise in futility? Leaving possible non-security related goals aside (e.g., establishing a surveillance infrastructure to monitor various groups of non-terrorist undesirables), Rudmin gives the following answer:

Mass surveillance of the entire population is logically sensible only if there is a higher base-rate. … The whole NSA domestic spying program will seem to work well, will seem logical and possible, if you are paranoid. Instead of presuming there are 1,000 terrorists in the USA, presume there are 1 million terrorists. Americans have gone paranoid before, for example, during the McCarthyism era of the 1950s. Imagining a million terrorists in America puts the base-rate at .00333, and now the probability that a person is a terrorist given that NSA’s system identifies them is p=.99, which is near certainty. But only if you are paranoid. If NSA’s surveillance requires a presumption of a million terrorists, and if in fact there are only 100 or only 10, then a lot of innocent people are going to be misidentified and confidently mislabeled as terrorists.

Rudmin’s theory fits the known facts surprisingly well, without requiring us to assume any form of large-scale conspiracy or “Wag the Dog”-type motivations. Institutions charged with protecting the country, any country, from attack have a long history of overestimating threats. Risk perception is largely shaped by someone’s social and institutional environment and only loosely correlated to “actual risk,” assuming that there is such a thing as an objective measure of risk. So it is not unreasonable to assume that the NSA is “paranoid,” in Rudmin’s terms, or as a result of cognitive dissonance avoidance, is likely to assume a higher-than-warranted base-rate. At the same time, we are seeing increased evidence of innocent people getting swept up in the NSA’s surveillance efforts. In other words, the government’s approach is over-inclusive and leads to false positives, which is precisely what we would expect as a result of a higher-than-warranted base-rate.

There are a couple of important issues, however, that Rudmin’s analysis doesn’t address. First, is it necessarily true that 30,000 false positives make a surveillance system “useless for finding terrorists?” Comparing that to a situation that I know from experience, large-scale electronic discovery, a document review platform that reliably provided me with 30,000 potentially responsive documents out of a universe of 300 million would be far from useless. For a first-pass review, that’s actually very good. What really counts is what happens next, that is, how the government goes about conducting its further investigation of the 30,000 “potential terrorists.” If those can be whittled down to, say, 3,000 fairly quickly and with minimally intrusive means (e.g., research of additional publicly available or pre-existing, lawfully obtained government records), then we’re probably looking at a fairly effective system. Of course, effectiveness alone doesn’t answer the underlying normative question whether the loss in civil liberties from scanning the records of an entire population is worth the gain of 3,000 leads. It doesn’t answer the question if those leads could not have been obtained by less intrusive and more targeted means, in particular considering the potential for abuse that is inherent in large-scale, vacuum-cleaner surveillance. I understand that these considerations are beyond the scope of Rudmin’s article, but their omission makes his claim less persuasive.
[tags]surveillance, NSA, security[/tags]

There is an interesting article in the NY Times this morning (registration required) about yesterday’s decision by the New York Supreme Judicial Court to deny that a right to gay marriage exists under the New York state constitution.

Here is a taste:

Opponents of gay marriage immediately hailed the New York decision as a sign that the legal and political campaign toward gay marriage nationwide had stalled. More than 40 states have laws that restrict marriage to a man and woman, and no high court or state legislature has granted gays a right to marry anywhere except Massachusetts.

Mr. Stewart, of the Marriage Law Foundation, said he was particularly pleased by the “superb and straightforward legal analysis” of the New York decision. He argued that it would provide a foundation for jurists in other states to restrict civil marriage to a man and a woman.

Specifically, Mr. Stewart praised Judge Robert S. Smith for refusing to use the racist legacy of miscegenation laws as a justification for extending marriage rights to same-sex couples. Too often, Mr. Stewart said, trial court judges and politicians are cowed by the premise that barring their unions would be the same as barring people of different races to marry.

“It’s going to carry a lot of intellectual clout with other judges around the country,” Mr. Stewart said.

David S. Buckel, senior counsel and director of the Marriage Project at the Lambda Legal Defense and Education Fund, which is pressing court cases to legalize gay marriage, acknowledged that the New York decision “will certainly be an opinion that other states will look at.”

Yet Mr. Buckel and other supporters of gay marriage said parts of the ruling could shock judges and other Americans into seeing gay marriage in a favorable light. In particular, they noted one section suggesting heterosexual couples need marriage to be preserved as a way to shore up their faulty relationships and protect their children who might suffer in broken-home situations.

“It’s a mess of a decision that in the end makes a very weak argument: That you can justify barring same-sex couples from marrying because of the unstable relationships of heterosexual couples,” Mr. Buckel said.

I agree that the reasoning is weak, because it doesn’t explain why a gay person must be refused the right to visit his or her severely injured partner (to take one example of the benefits bestowed by marriage) so that a heterosexual couple somewhere might be a little more likely to marry and a little less likely to divorce. Even under the lenient rational-basis test, the court should show that the means chosen by the state (restricting marriage to man-woman unions) is even capable of achieving the legitimate state aim (chanelling potentially procreative unions into environments beneficial to child-rearing). The court views the benefits of marriage as an incentive for heterosexual couples to marry:

Since marriage was instituted to address the fact that sexual contact between a man and a woman naturally can result in pregnancy and childbirth, the Legislature’s decision to focus on opposite-sex couples is understandable. It is not irrational for the Legislature to provide an incentive for opposite-sex couples — for whom children may be conceived from casual, even momentary intimate relationships — to marry, create a family environment, and support their children.

But denying the incentive to gay couples doesn’t increase the incentives of marriage for heterosexual couples. Where is the suddenly-pregnant young couple that would decide not to marry, despite tax breaks, custody, support obiligations and so forth, because someone else is or isn’t married?

Ultimately, of course, the argument against denying the legal benefits of marriage to gay couples is the foundation of the liberal state itself: The state mustn’t regulate what it needn’t regulate. This is the essence of the harm principle. Since gay marriage isn’t a threat to either physical safety or property of anyone else, the state has no business “protecting” us from it.

The Supreme Court’s decision in Hamdan v. Rumsfeld came down today. In a five-four decision the court found that the Geneva Convention applies to the Al-Quaeda conflict. I haven’t read the whole opinion yet, but here his Marty Lederman on SCOTUSblog:

More importantly [than the Court's holding that all commissions comply with the laws of war], the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”—including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. …

This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

Here is a bit from the syllabus:

Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not).

Update: The link to the opinion has gone up on the Supreme Court’s webpage: Hamdan v. Rumsfeld (pdf file).

There is an article in the NY Times today (subscription required), describing the way Wal-Mart has been using bloggers in their PR efforts. Here is a taste:

Brian Pickrell, a blogger, recently posted a note on his Web site attacking state legislation that would force Wal-Mart Stores to spend more on employee health insurance. “All across the country, newspaper editorial boards – no great friends of business – are ripping the bills,” he wrote.

It was the kind of pro-Wal-Mart comment the giant retailer might write itself. And, in fact, it did.

Several sentences in Mr. Pickrell’s Jan. 20 posting – and others from different days – are identical to those written by an employee at one of Wal-Mart’s public relations firms and distributed by e-mail to bloggers.

There are obvious issues, of course. Wal-Mart says it doesn’t pay bloggers, but apparently the lines Wal-Mart is feeding the bloggers aren’t attributed to Wal-Mart by the bloggers, either. It makes you realize that in the unregulated blogsphere there does seem to be one rule: attribute content to its source. And it is being broken here.

There is another aspect to it that is interesting from a law & society perspective: Wal-Mart says it uses bloggers in an “overall effort to tell our story.” Telling a story is a good and fair thing. Manipulating the masses isn’t, of course. The acceptability of such topoi as “narrative” and “story” where some time ago we might have expected “facts” or “view” shows to what extent relativism and the adversarial approach to truth has entered American folklore.

Empricial Legal Studies Blog has a set of interesting statistics about the public’s knowledge about who’s on the Supreme Court.

Together, these three surveys reveal a fairly stable level of knowledge–or perhaps a stable lack of knowledge. Over half the population cannot name even a single sitting Supreme Court justice. Of those who can name one or more justices, the results are largely consistent in all three surveys. O’Connor was the most well-known in all three; Stevens and Breyer were the least well known. And although Thomas appears less well-known now than in 1995, most of the remaining variation in the surveys is likely within the range of sampling error. (Scalia may be slightly more well known now than in 1995.) One major difference in the December 2005 survey is that Chief Justice Roberts was a correct answer, not Rehnquist. But despite Roberts’ confirmation in September and all of the media coverage that went along with it, only 16% could recall his name by December.

It would be interesting to take the same survey as part of the bar admission process or at the ABA Spring Meeting. (Just kidding.) [tags]supreme court, perception, O’Connor[/tags]

In response to my discussion of the NYC subway search cases, Bruce Regal observed:

[T]he program ultimately is probably not about deterrence at all, but about making people feel better (irrationally perhaps, but no less actually) — helping them feel, subconsciously if nothing else, that the authorities are doing something, anything, about what is from a rational point of view (at least for local law enforcement authorities who have no control over international policy) the intractable problem of terrorism. Is helping people feel irrationally more protected a valid government purpose that is entitled to constitutional recognition?

Bruce is asking a critically important question about the nature of democracy. What exactly is the mandate of a government? Does it include the power to comfort the people with benevolent deception? Benevolent deception is different from passing symbolic laws, because symbolic laws don’t usually involve deception. In Bruce’s example, the government knows that the program will not have any real effect on safety. The sole motivation and the sole effect of the program is to create a perception of increased safety. Let’s assume (counterfactually) that there are no ulterior motives on the part of the proponents of the program, that is, no upcoming elections and no political capital to be gained; the goal is to make people feel safer and thus improve their welfare. What’s wrong with that? Here are a some thoughts:

• Democracy is based on the normative premise of self-government or autonomy. Autonomous decisions are rational and therefore free. Rationality and freedom require access to reliable information. Deception undermines freedom. Granting a government the powers to benevolent deception would thus be a performative contradiction on the part of the people.
• Benevolent deception is the first step onto a slippery slope. Some bright-line rules are necessary, and “don’t deceive the people” is one of the better per se rules in a democracy.
• Benevolent deception is detrimental to welfare in the long run. Knowing the truth about a threat and knowing about the fact that the government can’t really do much about it may prompt the people to pursue and demand entirely different policies.
• In questions of public policy, unlike in some individual settings, there will always be a long run. The absence of long run consequences has usually been the primary justification for benevolent deception. In other words, telling a benevolent lie on someone’s deathbed may well be justified. But that situation doesn’t exist in politics, neither factually nor normatively.

In response to the WSJ discussion of Douglas Litowitz’s book The Destruction of Young Lawyers, Nate Oman wrote a thoughtful piece on Concurring Opinions. Unlike some of the commentators on the WSJ website, Nate knows what he’s talking about, as he identifies two factors that contribute to the dissatisfaction:

lack of interest in the law and the mismatch between the dominant myths about the legal profession current in law schools and the reality of the legal profession in practice.

I don’t take issue with Nate’s analysis, but let me point out another potential source of frustration, even though I am confident that it only applies to a much smaller group: too much of an interest in the law. The law is one of the most fascinating creations of the human mind, and its study can be as intellectually rewarding (and thus intoxicating) as that of philosophy or social science, to pick two academic disciplines with which I have some familiarity. But practice can get in the way of that contemplation, if only because both take time, and thus dissatisfaction grows. I venture to guess that the thought: “This is really interesting. If only I had the time to research it!” is responsible for a great many academic careers that first started in practice.

So are we to conclude that those who are most interested in the law will ultimately have to leave practice to satisfy their curiosity? I hope not. In a handful of practice areas at least, some of the most accomplished practicing lawyers are also part of the serious academic discourse: international law comes to mind and so does antitrust. The ideal of the academic lawyer is certainly more prominent in Europe, but its influence in growing in the US, too. So maybe there is a cure for the dissatisfaction that comes from too much interest in the law ÇƒÏ even within the profession.

Here is an interesting short article by Laurence Britt about common characteristics of various fascist regimes, namely Nazi Germany, Fascist Italy, Franco’s Spain, Salazar’s Portugal, Papadopoulos’s Greece, Pinochet’s Chile, and Suharto’s Indonesia. The basic characteristics, as identified by Britt, are as follows:

1. Powerful and continuing expressions of nationalism.
2. Disdain for the importance of human rights.
3. Identification of enemies/scapegoats as a unifying cause.
4. The supremacy of the military/avid militarism.
5. Rampant sexism.
6. A controlled mass media.
7. Obsession with national security.
8. Religion and ruling elite tied together.
9. Power of corporations protected.
10. Power of labor suppressed or eliminated.
11. Disdain and suppression of intellectuals and the arts.
12. Obsession with crime and punishment.
13. Rampant cronyism and corruption.
14. Fraudulent elections.

In MacWade v. Kelly, the subway bag search case, the court found that the bag search program “is an effective measure to help deter and detect a terrorist attack against New York City’s subway system,” even though searches are pre-announced and anyone who doesn’t like to have their bag searched (a subset of passengers that presumably includes everyone with a bomb in their bag) can simply walk away. The basis of the court’s finding was the testimony of Commissioner Sheehan and Richard Clarke, the defendants’ experts. The reasons given for the effectiveness of the program were that

1. Its random nature “adds uncertainty and unpredictability to the planning and implementation of a terrorist attack”; and that
2. The program “reinforces the awareness of police officers, transit workers, and the public of the need to be alert.”

Reason (1) simply begs the question. A program that’s not effective to begin with doesn’t somehow become effective just because it its administered in a random fashion. Random strategies presuppose an effective program. And with respect to (2), one must seriously wonder if the witness wasn’t joking. The purpose of the bag searches is to keep the police awake alert? C’mon! (Dan Solove has some fitting comments on this issue.) And that’s it. That’s the basis for the court to conclude that the bag searches are an effective means to deter and to detect a terrorist attack. I am not convinced, and it appears that court took its own admonition to heart that:

[I]t would be inappropriate for courts to second-guess the judgments of law enforcement officials and other public officials who are charged with protecting the public and making difficult choices of resource allocation.

That, of course, is a ridiculously lenient standard of judicial oversight. I wonder if there are any public officials who aren’t “charged with protecting the public and making difficult choices of resource allocation.” If that were the standard, then judicial review as such would be nonexistent.

The most interesting issue raised by the opinion is somewhat less obvious. In the conclusions of law, the court writes:

Against the compelling government interest in preventing a terrorist attack, the Court has weighted the (relatively limited) level of intrusion imposed upon subway riders.

Borrowing language from economics, the court compares totals, i.e., a terrorist attack, with marginals, i.e., the intrusions imposed upon subway riders. The comparison is not between “preventing terrorist attacks” and “people’s privacy” (two totals), nor is it between “the increase in safety from the subway bag search program as challenged” and “the relatively minor intrusions imposed upon subway riders by the program” (two marginals). As between the two, only the latter is a reasonable approach to weighing competing interests, but be that as it may, comparing marginals to totals is simply not meaningful, because the totals will always win. The court’s faux balancing is merely a rhetorical gloss on a foregone conclusion.

Ordinary people – myself emphatically included – have no way to determine the truth of all but the most simplistic factual claims, which does not keep anyone from having strong opinions. Let’s take the evolution v. creationism (or “intelligent design”) debate. Suppose that you argue in favor of creationism. I claim in response:

“The theory of evolution is among the most secure elements in all of human knowledge. It is on par with claims such as: matter is made of atoms, DNA transmits the blueprint of organisms from generation to generation, light is an electromagnetic wave, which, at times, also behaves like a particle, etc. Any form of creationism or intelligent design is hogwash.ǃ?

How do I know that? I have not conducted any experiments myself, nor have I spent any significant time studying the results of the experiments conducted by others. The answer is that I trust science as an institution. I trust that the adversarial process of promoting competing theories, of peer review, of organized research with its mixed rewards of academic recognition and authority within largely autonomous institutions, justifies my belief in the truth of a proposition endorsed by the scientific community. In other words, my trust in a particular social organization underwrites my truth claims. Trust is therefore epistemologically prior to truth.

The question is thus, whom do I trust? I trust whoever has been designated as trustworthy by the trusted institution (which, of course, is a reflexive definition). For starters, I trust experts with the right credentials, for example, a Ph.D. in evolutionary biology from a reputable university. The credentials are a proxy for the truth of the statements made by their bearer. In addition to verifying credentials, I will also make sure that the expert talks about his or her field of expertise, that his or her knowledge is current, and that he or she is an accepted (i.e., trusted) authority within the field, which is established primarily through reputation, publications, review articles, prizes, etc. Once the credentialing process has been completed to my satisfaction, I have validated my truth claim, in much the same manner as I validate the identity of an email recipient through the degree of trust placed in their public PGP key by others. The defensibility of truth claims thus rests almost solely on social webs of institutional and interpersonal trust relations. In a sense that improves our ability to critically assess the truth of a proposition, because it seems that ordinary people are much better equipped to make judgments as to whether someone is trustworthy compared to whether something is true.

Going back to the initial question, I believe that the theory of evolution is correct and any form of creationism is hogwash, because my web of trust, within which I can justify my beliefs, is broader, denser, and deeper than yours. The institutions that I rely on are in turn relied on by more reputable institutions than the ones that you base your trust on. The individuals whose assessment I trust are affiliated with more reliable institutions than the ones that you trust, and so on. I am right and you are wrong, because my claims are backed by a more relevant, reliable, and higher quality social consensus than yours. Once again, truth is a function of social arrangements and webs of trust.

Now suppose that, hypothetically, in response to my defense, you are able to drop disreputable institutions such as the “Discoveryǃ? Institute and a number of associated cranks as nodes from your relied-upon web of trust. Suppose that you point me to a group of people, who, by my own standards, are trustworthy. Suppose further that these people speak out in favor of creationism. What now? At this point I have to decide more specifically whom to trust, the members of my “team evolutionǃ? or those of your “team creationism.” On what basis will I be able to make that decision?

The theory of cultural cognition suggests that I will make that decision on the basis of basic cultural values. I will be inclined to place trust in people who share a comparable outlook on life with me in respect to two pairs of values: individualism – collectivism, and hierarchism – egalitarianism. All significant flavors of trust, or so the cultural theorists argue, are a result of these ingredients. As an egalitarian, I will tend to trust those who share these values. As an hierarchist, you will trust those who share your world-view. But how do I know whether “my” scientists are egalitarians, and how do you know that “yours” are hierarchists? By looking at who else trusts them. “My” team will be part of a larger network of trust, and within that network, I will be able to recognize cultural fit without great difficulty, simply because I am already part of that network. For example, if Brian Leiter speaks highly of Paul Myers, I will be inclined to take his views seriously. Conversely, you will probably be inclined to discount his views for precisely the same reason. So in the end, truth is matter of trust, and trust is a matter of cultural values. Or, as Dan Kahan and Donald Braman put it: “[C]ultural commitments are prior to factual beliefs.”

At this point, the critical question about the power of rational discourse arises, about our ability (or inability) to transcend our social network of trust in search for “truly” reliable authorities as proxies for truth. I am cautiously optimistic in that regard, but others disagree. For example, Kahan and Braman would probably hold that my example above is unrealistic. Cultural biases don’t politely wait their turn until I arrive at a point where I have to choose between two teams of equally well-credentialed and trusted experts. In reality, such predispositions are much more powerful and don’t just tip the scale in the case of equilibrium. Rather, they will let me hold on to factual claims that resonate with my value orientations even when faced with mountains of evidence to the contrary, or rather, even if confronted with an overwhelmingly large, dense, and deep web of trust underwriting a contrary factual position. The latter, of course, is true with respect to creationism and intelligent design. “Their” web of trust is thin and connected to nodes that discredit those who question the theory of evolution. The fact that truth is a social construct doesn’t mean that you can’t be wrong.

I remain hopeful that methodical critical thinking, actual or metaphorical cross examinations, and our (hopefully) increasing sophistication in evaluating the quality of competing webs of trust (Daubert style), will permit us to distinguish truth from falsehood. That search for truth, however, in most instances, will really be a search for trustworthiness.

[tags]philosophy, creationism, intelligent design, cultural cognition[/tags]

David Law and Larry Solum ( of Legal Theory Blog fame) have posted an excellent paper on judical selection on SSRN, entitled Pivotal Politics, Appointments Gridlock, and the Nuclear Option. Here is the abstract:

In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the “nuclear option,” by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is broadly consistent with the recent history of the federal judicial appointments process.

We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain – perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators – the so-called “Gang of 14″ – that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.

Even apart from the fact that the article reproduces the original The Incredible Hulk cover in a footnote (no. 22), the paper is a fascinating read. It casts fresh light on the ways the powers in the appointment process are aligned. The analysis focuses on the existing law and practice, including filibuster and the new “nuclear option,” and Law & Solum’s conclusions are not suggestions for departure from the current system, such as eliminating the Supreme Court as a standing body or postponing the appointment of justices until an election has intervened, designed to prevent political capture of the courts through the selection process. Law & Solum’s message is rather that a simple model of partisan attempts to capture the courts cannot explain appointment gridlocks nor the subtle balance of powers and incentives that restrains the use of the so-called “nuclear option.”

According to this survey, New Yorkers strongly support the random bag searches in the subway system.

In a Quinnipiac University survey of 1,601 voters, 72 percent favored the searches while 25 percent opposed them. That support was solid among blacks, whites and Hispanics. [...] “Even in a city touchy about civil rights, New Yorkers pick a bag search over the threat of being blown up,” said Quinnipiac polling director Maurice Carroll. “But most voters don’t want to give government too much power.”

While I have no reason to doubt or to confirm the soundness of the study, I do wonder about the statement of the polling director that “New Yorkers pick a bag search over the threat of being blown up.” Well, so would I. But Carroll’s statement misses the point, as it assumes that bag searches and the probability of being blown up are in any way causally related; the truth of the proposition: “If bag searches then reduced threat of being blown up” is precisely what’s at issue here. It is one thing to trade off civil liberties for an actual and significant increase in physical security. But it is quite another to curtail civil liberties to institute a program that has almost certainly no measurable effect on actual security. In the former case, there is a real argument as to whether the (incremental) security benefits are worth the (incremental) costs. In the latter case, there are no cognizable benefits, and everyone is worse off – unless, of course, one counts the illusion of (movie plot) security as a cognizable benefit, which, frustratingly, so many people seem to be willing to do.

A recent paper by Randolph Jonakait, Rasul v. Bush: Unanswered Questions, provides a useful roadmap to the complex legal landscape surrounding the detentions at Guantanamo, both procedurally and substantively. On a procedural level, Jonakeit correctly reads Rasul’s holding to be that “[a] person held anywhere by the United States as an enemy combatant can challenge the legality of his detention” by writ of habeas corpus, irrespective of his or her nationality, irrespective of (lack of) previous contacts with the U.S. prior to his or her capture, and irrespective of where the detainee is being held (Id., at 11). The real questions, however, concern the substantive claims that an alien detainee may raise in these proceedings. Jonakait concludes:

If Guantanamo Bay is treated as the equivalent of U.S. territory, aliens detained there should be able to claim violations of [constitutional] due process rights. Those held elsewhere should be able to claim that their detentions are illegal because they have not been authorized by Congress, and are not within the inherent powers of the President, and that they violate international law.

The separation of powers and the international law arguments are particularly interesting. Ultimately, however, it is clear that historical “law of war” precedent is only of limited use, because the wars of old were of a different nature. For example, the war on terrorism is no longer a symmetrical war, in which both sides would expect to capture thousands of enemy soldiers, which provided natural checks on the actions of both sides. Similarly, the enemies in the war on terror are not nation states and regular armies, but rather bands of individuals and groups more akin to international crime syndicates than to hostile governments. “War” as in “war on terror” is primarily a rhetorical device to create a presumption for political action, similar to the “war on drugs.” The war on terror is thus more like a condition than an action with a beginning and an end, as indicated by the administration’s new catch phrase “global struggle against violent extremism.” (A curious choice of words, by the way. I wonder whether “global struggle” would translate as jihad. If I were the brand manager, I’d stick with “war.”) If the qualitative differences between the present war on terror and the wars past lead to the inapplicability of the traditional laws of war to actions in the context of the war on terror, then, as Jonakait points out, all those opposing the U.S. forces would by definition be illegal (or extra-legal) enemy combatants – which is, in effect, pretty much the status quo. To my knowledge, not a single Afghan soldier was captured and treated as a POW, precisely because, or so the reasoning goes, they were not soldiers in a war. Jonakait raises more questions than he answers, but asking the right questions is already a vast improvement over much of the present discourse.

Is the indefinite detention of enemy combatants unfair? According to Eugene Volokh, it is not. At least, he writes, the arguments commonly advanced to buttress claims of unfairness are unconvincing. I don’t want to take issue with Volokh’s factual propositions, many of which I believe to be wrong, for example, that people who fight against an overwhelming force, invading their country, are unlikely “to be deterred by the risk of repeat incarceration.” Rather, I want to address the underlying normative question, which is valid. In my view, the answer is that the indefinite detention of anyone under any conditions, without a trial and subsequent conviction, is morally impermissible. The primary reason is that under a rule of law, which is a moral, not a legal concept, there should be no persistent pockets of executive or military power that are beyond the reach of the law. I appreciate that there may be temporary extensions of “political authority over military affairs where the judicial power may not enter,” as Justice Kennedy states in his concurring opinion in Rasul v. Bush, but temporary is the critical qualifier here. After three years there is no credible claim of military exigency any more and whatever pocket of executive power beyond (or maybe, prior to the arrival of) the law might have existed, should have disappeared by now. Only that it hasn’t. And that is what makes the detentions at Guantanamo morally unjustifiable. In other words, detention limited in scope, conditions of confinement, and duration may be justifiable, even though much of it should be subject to ex post judicial review. In contrast, indefinite, extra-legal detention is a per se violation of the rule of law. And as such, it is morally unjustifiable.

In my post Weaken the Court, Strengthen the Rule of Law, I argued that the hierarchical nature of the law does not require a similarly hierarchical structure of the courts. Now let me take this one step further: Why not eliminate the Supreme Court as a standing body altogether? Inevitable circuit splits would be resolved by an ad-hoc supreme (constitutional) court, which would be in session twice a year. That court would be comprised of randomly selected judges, chosen, for example, from among the judges of the courts of appeal. Each so-selected court would hear and decide cases, selected by the outgoing court. The combination of (i) random composition, and (ii) separation of case selection and decision, would make ideological court-packing virtually impossible, depoliticizing the appointment of judges in the process. Random selection would also likely have a moderating influence on the courts of appeal, because an appeals panel, intent on adopting an extreme position, could no longer expect review by a politically, ideologically, or philosophically sympathetic Supreme Court. Random selections would introduce a significant element of uncertainty into the set of known extra-legal determinants of future judicial behavior. It would be impossible, for example, to apply an attitudinal model of the court to predict future decisions. It stands to reason that genuinely legal considerations would gain in relative importance as a basis for judicial decisions from an internal point of view, and a basis for “prophecies of what the [ad hoc supreme court] will do in fact,” from an external point of view. Random selection, as outlined above, would at the very least keep openly political jurisprudence at bay, one of the more corrosive variants of pervasive instrumentalism.

Spain has followed the Netherlands and Belgium in legalizing gay marriage. According to the New York Times,

[t]he measure passed the 350-seat Congress of Deputies by a vote of 187 to 147. The bill, part of the ruling Socialists’ aggressive agenda for social reform, also lets gay couples adopt children and inherit each others’ property. The bill is now law.

The Guardian is running a great article by Richard Stallman that illustrates the effects of software patents by analogizing them to patents on literary ideas. Consider Stallman’s example of a hypothetical literary patent:

Claim 1: a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and becomes bitter towards society and humankind.
Claim 2: a communication process according to claim 1, wherein said character subsequently finds moral redemption through the kindness of another.
Claim 3: a communication process according to claims 1 and 2, wherein said character changes his name during the story.

If such a patent had existed in 1862 when Les Miserables was published, the novel would have infringed all three claims – all these things happened to Jean Valjean in the novel. Hugo could have been sued, and would have lost. The novel could have been prohibited – in effect, censored – by the patent holder.

One of the curious ways in which the American intellectual climate differs from that in Europe is the involvement of the legal system in the “great debates.” Every society has to come to terms with social and technological change, a process that results, at least in open societies, in public debates, in which cognitive and normative expectations are adjusted, re-negotiated, abandoned, or affirmed. Some of the more recent great debates have focused on the (real or perceived) risks from nuclear energy, genetic engineering, stem-cell research, exposure to toxins, terrorism, the government’s responses to terrorism, the effects of food additives on health, the legitimacy of torturing prisoners of war, and the definition of and the responsibility to decide over life and death (as in the Schiavo case). In Europe, these and similar great debates have historically been initiated by intellectuals. Intellectuals are catalysts, which is one of the reasons for their public visibility and significance. Once a controversy gains public traction and evolves into a great debate, it is then usually picked up by or transformed into political movements (such as the Green party). Not so in the United States. Here, the great debates are initiated by plaintiffs from all walks of life, and they take place in court.

The fact that the courts are the primary forum for the great debates is an important reason for the omnipresence of law in American society and intellectual life and for the ongoing creation of (by definition controversial) new rights and prohibitions in realms of scientific and moral uncertainty. By invoking the legal process, lawyers, judges, expert witnesses, lay people (a.k.a. jurors), and, of course, the media, engage in a substantive yet stylized and ritualistic debate that procedurally favors dissent over consensus, consistency (nowadays known as staying on message) over the admission of uncertainty (example on point: expert testimony), and that places a high premium on personal credibility and the affirmation of social authority that goes with it. In every lawsuit, there must be two sides, and the adversarial process is designed to highlight that feature (plaintiff or defendant, tertium non datur). Of course, they may be more than two sides to an issue, as vividly illustrated in the Schiavo case. There, the binary question posed to the legal system was: “Feeding tube in or out?” A third alternative to the two-week long process of starving someone to death, euthanasia, hardly entered the realm of the legally pre-structured public discourse. But the limited scope of the discourse in the United States (limited in comparison to similar debates in Europe) also has significant merits; it leads to greater focus, more clearly stated positions, and a characteristically pragmatic bent of the American great debates. Within a short period of time – usually months, not years – courts have to make a decision, irrespective of whether the public debate has come to a conclusion or not. Institutionally, courts – unlike legislatures – are designed to make and are used to making decisions under conditions of factual and normative uncertainty. Given that many of such decisions will necessarily turn out to be unacceptable, it is critical that court decisions remain case-specific, localized, and tied to a particular fact pattern, that is, free from premature generalizations and inappropriately universal claims. In that, the tentative, context-sensitive, one-step-at-a-time, intensely factual nature of the American discourse, which many European observers find pedantic, pedestrian, and intellectually uninspired, may just be an appropriate reflection of a uniquely diverse, increasingly heterogeneous American society, in which normative claims must prove their viability in a bottom-up evolutionary process of acceptance, rejection, qualification, and situation-specific modification. The courts may indeed be uniquely qualified to produce such localized yet binding (and thereby relevant) normative recommendations for broader acceptance or rejection. (The independence of the judiciary, and its lack of direct public responsibility, is the necessary institutional corollary to its experimental mandate at the frontier of the factual and normative debate.)

[tags]law, great debates[/tags]

The district court for the Eastern District of California granted summary judgment for defendants in an important challenge to the California Financial Information Privacy Act, commonly known as “SB1″ (Senate Bill 1). The SB1 protections go far beyond those of the Gramm-Leach-Bliley Act, requiring opt-out provisions for information sharing among affiliates (for example, banks and their mortgage divisions) and opt-in consent for third party information sharing (for example, brokers and insurance companies). The plaintiffs argued that SB1, a state law, was pre-empted by the federal Fair Credit Reporting Act (FCRA), and that consequently SB1 violated the Supremacy Clause of the Constitution. Judge England disagreed:

It makes no sense to exempt such information sharing [of consumer reports among affiliates] in one part of the statute [the FCRA], then argue through a later preemption provision that the FCRA, though not governing such exchange, nonetheless prevents states from doing so. Instead, the only reasonable reading of the FCRA preemption provision is that it prevents states from enacting laws that prohibit or restrict the sharing of consumer reports among affiliates.

The Supreme Court’s decision in Rasul v. Bush, No.03-334 establishes that foreign nationals, captured and detained outside the U.S., may challenge the lawfulness of their detention by writ of habeas corpus in U.S. federal courts. There are two complementary legal bases for habeas corpus petitions, one is constitutional, (article I, section 9, clause 2) the other is based on the federal habeas corpus statute (28 U.S.C. ¨? 2241). In Rasul, Justice Stevens, writing for the Court, focuses on the statutory writ under ¨? 2241. The constitutional writ is the focus of Justice Kennedy’s concurring opinion.

Section ¨? 2241 provides in relevant part that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.ǃ? 28 U.S.C. ¨? 2241(a) (Emphasis added.) The issue is whether any district court has jurisdiction over individuals detained outside the U.S. In this context, the Supreme Court had to deal with three prior decisions: Ahrens v. Clark, 355 U.S. 188 (1948), Johnson v. Eisentrager, 339 U.S. 763 (1950), and Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1972).

Ahrens clarified that “within their respective jurisdictionsǃ? meant “within the territorial restrictions of those courts.ǃ? (Ahrens, at 190. Emphasis added.). That, by itself, is neither surprising nor particularly limiting, because the writ of habeas corpus is not addressed to the detainee but rather to the jailer or the officer who exercises control over the jailer. However, the Court further held that “[i]t is not sufficient … that the jailer or custodian alone be found in the jurisdiction.ǃ? (Id., at 190. Emphasis added.). If the detainee is within the territorial jurisdiction of any district court, that rule merely requires him or her to bring the writ in that court. (In Ahrens, the detainees were held in Ellis Island. Instead of bringing their action in the Eastern District of New York, they petitioned the district court in the District of Columbia.) However, if the detainee is beyond the territorial reach of any district court, as is the case with the detainees in Guantanamo, Cuba, the Ahrens rule of convenience effectively bars the detainee from exercising the writ of habeas corpus entirely. (The dissenters in Ahrens clearly foresaw and articulated that problem.) Thus, in Rasul, the Supreme Court had to find a way around Ahrens in order to make the statutory writ under ¨? 2241 accessible to the detainees. The Court took the position that Ahrens had been overruled by Braden in 1973. In Braden, the Court held “that the [detainees'] absence from the district court does not present a jurisdictional obstacle to the consideration of the claim,ǃ? (Braden, at 498) which meant that ¨? 2241 (once again) applied to cases where the jailer alone is within the territorial reach of a district court. Consequently, Rasul had a simple statutory solution: “Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. Section 2241, by its terms, requires nothing more.ǃ? (Rasul, at 15).

What about Eisentrager? The Court explained that Eisentrager, the seemingly restrictive precedent on which the government relied, only addressed the scope of the constitutional habeas provision but did not speak to the jurisdictional reach of ¨? 2241. That explanation makes sense, because just two years before Eisentrager was decided in 1950, the application of the federal habeas corpus statute had already been severely restricted by Ahrens. Thus, absent a viable statutory basis for their habeas petition, the detainees in Eisentrager had to focus on the constitutional protections and the Court only spoke as to those. In his concurring opinion, Justice Kennedy focuses on the constitutional habeas provision and concludes that Eisentrager does not bar the Guantanamo detainees from access to the U.S. courts. For his argument, he relies on the Eisentrager framework, which sets out a sliding scale of constitutional protection for individuals depending on their connection to the U.S. Among the relevant criteria are citizenship, physical presence in the U.S. (or in territories controlled by the U.S. such as Guantanamo), and attitude towards the U.S. (friend or foe). In addition, factors of military exigency may be considered. On the basis of these factors, Kennedy concludes that the writ of habeas corpus is available to the Guantanamo detainees: they are on U.S. controlled territory, their status as friend or foe has not been determined (because they have been deprived of any legal proceedings), and after two years there is no credible claim of military exigency.

From a theoretical point of view, Kennedy’s concurring opinion is particularly interesting, because he acknowledges that “there is a realm of political authority over military affairs where the judicial power may not enter.ǃ? (Id., at 3). However, as the decision in Rasul confirms, it is the law itself that determines the realm where the judicial power may not enter. The legal system is autonomous in defining its own boundaries. Relying on the (constitutional and therefore legal) concept of separation of powers, the law acknowledges prerogatives of executive power. However, no subject matter and no executive conduct is per se beyond the reach of the law. Unchecked executive powers exist because of a (sometimes prudent) self-limitation of the legal system, but any such limitation may be revoked. In Rasul, the Supreme Court did just that.