Went to the Hammond Castle in Gloucester last Sunday...I have vague not terribly impressed memories of a visit when I was a child...I'd not realized at that time that John Hays Hammond, Jr. was what is now commonly called a 'patent troll' or 'non-practicing entity'. As wiki puts it
After graduation from Yale in 1910, Hammond took a job in the U.S. Patent Office. His strategy was simple: having learned from Edison that "inventing had to be a money-making proposition, where better to learn what fields were up-and-coming than in the Patent Office?" After he became an authority on the patent process, he founded the Hammond Radio Research Laboratory on his father’s estate in Gloucester, Massachusetts. In total, he is credited with more than 800 foreign and domestic patents on more than 400 inventions (the exact number of inventions is vague due to how credit was listed on the forms) mostly in the fields of radio control and naval weaponry.
A troll with a castle. Supposedly 'patent troll' is a 1990s coinage, but Hammond seems to have gotten there first.
From today's NYT -- and it's not April 1:
The dispute stems from a lawsuit filed on Thursday by a filmmaker in New York who is seeking to have the court declare the popular ditty to be in the public domain, and to block a music company from claiming it owns the copyright to the song and charging licensing fees for its use.
The filmmaker, Jennifer Nelson, was producing a documentary movie, tentatively titled “Happy Birthday,” about the song, the lawsuit said. In one proposed scene, the song was to be performed.
But to use it in the film, she was told she would have to pay $1,500 and enter into a licensing agreement with Warner/Chappell, the publishing arm of the Warner Music Group. Ms. Nelson’s company, Good Morning to You Productions, paid the fee and entered into the agreement, the suit says.
“Before I began my filmmaking career,” Ms. Nelson said in an e-mail forwarded by her lawyer, “I never thought the song was owned by anyone. I thought it belonged to everyone.”
The lawsuit notes that in the late 1800s, two sisters, Mildred J. Hill and Patty Smith Hill, wrote a song with the same melody called “Good Morning to All.” The suit tracks that song’s evolution into the familiar birthday song, and its ownership over more than a century.
But although Warner/Chappell claims ownership of “Happy Birthday to You,” the song was “just a public adaptation” of the original song, one of Ms. Nelson’s lawyers, Mark C. Rifkin, said in a phone interview.
“It’s a song created by the public, it belongs to the public, and it needs to go back to the public,” Mr. Rifkin said.
A spokesman for Warner/Chappell declined to comment on the suit. The company paid $25 million in 1988 to acquire Birchtree Ltd., a small company whose musical holdings included the birthday song.
Mr. Rifkin cited an estimate that Warner/Chappell collected approximately $2 million per year in licensing fees for the song. He added that the suit asks that the firm return all the fees for the song it has collected in the past four years.
The wiki version is:
The combination of melody and lyrics in "Happy Birthday to You" first appeared in print in 1912, and probably existed even earlier., pp. 31–32 None of these early appearances included credits or copyright notices. The Summy Company registered for copyright in 1935, crediting authors Preston Ware Orem and Mrs. R.R. Forman. In 1990, Warner/Chappell purchased the company owning the copyright for $15 million, with the value of "Happy Birthday" estimated at $5 million. Based on the 1935 copyright registration, Warner claims that the United States copyright will not expire until 2030, and that unauthorized public performances of the song are technically illegal unless royalties are paid to it. In one specific instance in February 2010, these royalties were said to amount to $700. In the European Union, the copyright of the song will expire on December 31, 2016. The actual American copyright status of "Happy Birthday to You" began to draw more attention with the passage of the Copyright Term Extension Act in 1998. When the U.S. Supreme Court upheld the Act in Eldred v. Ashcroft in 2003, Associate Justice Stephen Breyer specifically mentioned "Happy Birthday to You" in his dissenting opinion. American law professor Robert Brauneis, who extensively researched the song, has expressed strong doubts that it is still under copyright.Eldred v. Ashcroft is an abomination.
There's a longer post in this, but I don't have time to do any real research.
Since the US military justice system's handling of rape is in the news and I hear an interview on NPR of Mary Louise Roberts on her book What Soldiers Do: Sex and the American GI in World War II France ...I just noticed last week that the US executed 147 US soldiers in WWII. Only one execution was for desertion (a seemingly minor case of that, Eddie Slovik). The 2nd largest category was for murder, but the majority quite a margin was for rape. Of those executions for rape, around 75% were of African-Americans. I've not been able to find exact numbers, but it appears that around 80 African-American soldiers, maybe a bit less, were executed for rape by the US. It would be nice to know more.
1) there wasn't much publicity at the time about this. Executions appear to have been not publicized widely and I've not been able to google any photos. I'm sure black soldiers knew.
More later, my wife calls...
Update #1: hm, surprisingly little on this topic on the internet. Can't even find the crimes people were executed for the most part. Only names, date and method of execution for the most part.
Appearently around 20,000 execution by the German military of German soldiers in WWII. Not sure how the desertion/rape porportions break down there. 7,000 capital convictions that were not fulfilled, one of them my grandparents' tenant before I was born.
I'd completely missed this (obvious) fact, but it's in the title of the just released book by Alexander Wohl: Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy. Not sure if this explains anything about Ramsey Clark, but it is context.
In 1967, President Johnson nominated him to be Attorney General of the United States. He was confirmed by the Senate and took the oath of office on March 2. There is speculation by Clark's detractors that Johnson made the appointment on the expectation that Clark's father, Associate Justice Tom C. Clark, would resign from the Supreme Court to avoid a conflict of interest. Johnson wanted a vacancy to be created on the Court so he could appoint Thurgood Marshall, the first African American justice. The elder Clark resigned from the Supreme Court on June 12, 1967, creating the vacancy Johnson apparently desired.
Tom Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States from 1949 to 1967. ...Clark, a Democrat, joined the Justice Department in 1937 as a special assistant to the U.S. attorney general for war risk litigation. He served as civilian coordinator for the forced relocation of Japanese-Americans during the opening months of World War II. He headed the antitrust division at Justice in 1943, and the criminal division from 1943 to 1945.
Appointed Attorney General by President Harry Truman in 1945, Clark was nominated to the Court on August 2, 1949, filling the vacancy left by the death of Frank Murphy. The New York Times called Clark "a personal and political friend [of Truman's] with no judicial experience and few demonstrated qualifications." Nevertheless, Clark was confirmed by the United States Senate on August 18, 1949 by voice vote, receiving his commission the following day.
Truman later came to regret his choice; he remarked to a biographer many years later that "Tom Clark was my biggest mistake." The change in Truman's attitude stemmed from Clark's vote to strike down as unconstitutional Truman's seizure of the nation's steel mills to end a strike in 1952's Youngstown Sheet & Tube Co. v. Sawyer.Justice Murphy, Clark's predecessor, had made a 5-to-4 majority on the Supreme Court for those justices who viewed the Court as a possible instrument of social change. But Clark, along with Truman's other conservative appointees, would change that.
The SZ today:
Im Bereich des Großen, Ganzen und Grundlegenden entwickelt sich ein hochgefährliches Prinzip: Je mehr Geld im Spiel ist, umso weniger gelten rechtliche Regeln. Die ganze Euro-Rettung basiert auf Entrechtlichung. Im Verhältnis der Mitglieder der Währungsunion zueinander und zum Finanzmarkt sind Verträge und Gesetze immer weniger verbindlich. Gestern formuliert, sind sie heute angeblich für effektive Rettungsmaßnahmen schon zu schwerfällig. Regeln, die aus der Not geboren wurden, sind angeblich für die nächste Not und die nächste Euro-Rettungsaktion schon nicht mehr geeignet, müssen angeblich der Not gehorchend gebrochen, oder, wie man beschwichtigend formuliert, großzügig ausgelegt werden.
Am Beispiel des ESM, des Europäischen Stabilitätsmechanismus, wird das erschreckend deutlich. Dieser Mechanismus ist nicht irgendetwas Finanztechnisches, sondern ein Vertrag, der vom Bundestag als Gesetz beschlossen wurde, Gesetzeskraft hat und vom Bundesverfassungsgericht am 12. September 2012 in einem "Ja, aber"-Urteil gebilligt wurde. Am Donnerstag steht nun im Bundestag die Zypern-Hilfe, ein neues ESM-Rettungspaket, zur Abstimmung. Bei dieser Zypern-Hilfe zeigt sich, dass die EU- Rettungsmechaniker sich weder um die vom Verfassungsgericht formulierten Einschränkungen noch um das Vertragswerk selbst viel scheren....
Es gibt einen "Vertrag über die Arbeitsweise der Europäischen Union". Er ist kompliziert, aber geltendes Recht. In der Staaten- und EU-Praxis ist es freilich so, dass nicht die Arbeitsweise dem Vertrag, sondern der Vertrag der Arbeitsweise angepasst wird. Aus Europa wird so eine Art Notverordnungs-Demokratie: Jede Rettungsaktion schafft sich ihr Recht.
To the extent I talk to German political lawyers, they've been quite upset with the effect of Europe on the German legal system for quite some time, since at least the early 1990s, seeing a decent into patch work ad hoc American lawlessness (and you can understand what they mean, it's not like they're making this up). The reaction to this has been to push back and make the European legal system, including fiscal legal standards, 'more German'. But that's backfiring, since modern Germany is too intergrated to serve as a good model for Europe.
Contra proferentem is a doctrine of contractual interpretation which provides that an ambiguous term will be construed against the party that imposed its inclusion in the contract – or, more accurately, against the interests of the party who imposed it. The interpretation will therefore favour the party that did not insist on its inclusion. The rule applies only if, and to the extent that, the clause was included at the unilateral insistence of one party without having been subject to negotiation by the counter-party. Additionally, the rule applies only if a court determines the term to be ambiguous, which often forms the substance of a contractual dispute, and such ambiguity is "latent" (i.e., not so glaring, or "patent", as to put the other party on clear notice of a problem with the wording or interpretation).
I know, probably not a latent ambiguity here...still, I always think of the other interpretive possibility when I see these signs. And what is a latent ambiguity? i.e. how much sophistication can one expect? [Ambiguity here is who the 'owner' is: car owner or lot owner, since the sign mentions neither.]
Overcriminalization has thus left us in a peculiar place: Though people suspected of a crime have extensive due process rights in dealing with the police, and people charged with a crime have even more extensive due process rights in court, the actual decision whether or not to charge a person with a crime is almost completely unconstrained. Yet, because of overcharging and plea bargains, that decision is probably the single most important event in the chain of criminal procedure.
Michael Giberson lists anti-price-gouging laws (which seem to prohit prohibit, among other things, raising the price of gasoline when there are gasoline shortages, at least to a price level that eliminates lines for gasoline). Notice that these are mostly from the last 20 years...why is this?
For the most part Iagree with Ezra Klein here, except with the proviso that 'playing the long game' is always subject to events -- if Democrats get to pick the next Supreme Court nominees it will/should not matter.
The decision today is being reported as 5-4, with Roberts voting with the liberals. Akhil Reid Amar, a constitutional scholar at Yale Law, sees it differently. “The decision was 4-1-4,” he said.
Here’s what Amar means: The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. ”He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”
His break with the conservatives, and his only point of agreement with the liberals, was in finding that the mandate was a “tax” — a finding that, while extremely important for the future of the Affordable Care Act, is not a hugely consequential legal question.
“We won,” said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. “All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird.”
One interpretation is that Roberts was playing umpire today: He was simply calling balls and strikes, as he promised to do in his Senate confirmation hearings. But as Barnett’s comments suggest, the legal reasoning in his decision went far beyond the role of umpire. He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality.
It’s as if an umpire tweaked the rules to favor his team in the future, but obscured the changes by calling a particular contest for the other side. ”John Roberts is playing at a different game than the rest of us,” wrote Red State’s Erick Erickson. “We’re on poker. He’s on chess.”
By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.
But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.
“For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day,” Barnett said. “For those of us in this fight to preserve the limits of constitutional government, this is not a bad day.”
I also correct is DeLong's take is more right than not, except that I don't think the Court is being incorenent here since due process claims don't have formal escape hatches:
Joint federal-state programs like Medicaid are an awkward beast. The federal government is making the state governments an offer they cannot refuse--"pony up for Medicaid or else", or "raise your drinking age to 21 or I will take away your highway money". (Note, however, that Arizona resisted the offer of Medicaid money for a long time.) Now we have seven justices who say that the federal government cannot do that, or at least that if the federal government has made an offer that cannot be refused, and its offer has been accepted, the federal government cannot then turn all Darth Vader on the states:
I am altering the deal. Pray that I do not alter it any further.
Roberts--and all the other justices save Sotomayor and Ginsburg, including two Democrats--appear to have thus created for the states a version of Charles Reich-like "new property" in the form of entitlements to established money flows from the federal government.
But what kind of entitlement, exactly?
At a formal level, this notion that the federal government cannot alter the terms of The Deal--that it must make a new deal, with consideration, offer, and acceptance--is hard to understand. The federal government could certainly repeal Medicaid entirely. It certainly could start up a new program equal to Medicaid + ACA Expansions and offer states that deal. It sounds as though if the ACA had been structured in this way:
that that would, formally, pass Roberts's scrutiny.
Am I wrong in seeing this as a version of substantive due process for states reliant on money flows from the federal government?
Substantive due process creates lots of work for courts.
Jack Balkin's take is also good.
Matthew Kluger is sentenced to 12 years. Our kids go to school with his kids. Not good for his kids.
Matthew Kluger's father is Richard Kluger, author of the well known (and Pulizter Prize winning) book Simple Justice.
Apparently lots of backstory here, none of which I 'know' about more than 4th hand.
One thing I've been hoping to get out of the current economic crisis is more serious attention for the excess costs of mass imprisonment in the US. Sentencing Law and Policy points to the following promising local press coverage:
The New Orleans Times-Picayune today starts this huge new eight-part series titled "Louisiana Incarceration: How We Built the World's Prison Capital." The first piece in the series is headlined simply "Louisiana is the world's prison capital," and it gets started this way:
Louisiana is the world's prison capital. The state imprisons more of its people, per head, than any of its U.S. counterparts. First among Americans means first in the world. Louisiana's incarceration rate is nearly triple Iran's, seven times China's and 10 times Germany's.
The hidden engine behind the state's well-oiled prison machine is cold, hard cash. A majority of Louisiana inmates are housed in for-profit facilities, which must be supplied with a constant influx of human beings or a $182 million industry will go bankrupt.
Several homegrown private prison companies command a slice of the market. But in a uniquely Louisiana twist, most prison entrepreneurs are rural sheriffs, who hold tremendous sway in remote parishes like Madison, Avoyelles, East Carroll and Concordia. A good portion of Louisiana law enforcement is financed with dollars legally skimmed off the top of prison operations.
If the inmate count dips, sheriffs bleed money. Their constituents lose jobs. The prison lobby ensures this does not happen by thwarting nearly every reform that could result in fewer people behind bars.
Meanwhile, inmates subsist in bare-bones conditions with few programs to give them a better shot at becoming productive citizens. Each inmate is worth $24.39 a day in state money, and sheriffs trade them like horses, unloading a few extras on a colleague who has openings. A prison system that leased its convicts as plantation labor in the 1800s has come full circle and is again a nexus for profit.
In the past two decades, Louisiana's prison population has doubled, costing taxpayers billions while New Orleans continues to lead the nation in homicides.
One in 86 adult Louisianians is doing time, nearly double the national average. Among black men from New Orleans, one in 14 is behind bars; one in seven is either in prison, on parole or on probation. Crime rates in Louisiana are relatively high, but that does not begin to explain the state's No. 1 ranking, year after year, in the percentage of residents it locks up.
In Louisiana, a two-time car burglar can get 24 years without parole. A trio of drug convictions can be enough to land you at the Louisiana State Penitentiary at Angola for the rest of your life.
Levinson remarks on the relative standing in the legal academy of Dred Scott (1857) and Prigg (1842) in a comment on Greene. First, a reminder of the holding in Prigg, as formulated first by Levinson and then by by Greene:
Prigg v. Pennsylvania,27in which Justice Joseph Story, for the majority of the Court:
Prigg v. Pennsylvania could easily be called the worst Supreme Court decision ever issued. The human tragedy of the decision is breathtaking. In an opinion by Justice Story, the Court reversed the criminal prosecution of a slave catcher who had kidnapped and sold into slavery a woman, Margaret Morgan, who likely was not a fugitive slave, and her two children, who assuredly were not. The Court's holding was that the Fugitive Slave Clause prohibited states from subjecting slave catchers to a state-sanctioned civil process, except to prevent "breach of the peace, or any illegal violence." Under the logic of the opinion, however, the kidnapping could not itself be outlawed as "illegal violence." Put otherwise, violence against blacks was "legal" violence; "illegal" violence was violence against whites. The decision abided the constant threat of enslavement experienced by free brown-skinned Americans in both the North and the South. By constitutionally forbidding states from preventing private violence against blacks, Priggworked a simultaneous assault on due process and on equal protection, the twin pillars of the modern Fourteenth Amendment. . . . Prigg virtually made Dred Scott a fait accompli.28
Under the Court’s holding in Prigg v. Pennsylvania, which remained good law at the time of Dred Scott, a free state was constitutionally forbidden from providing a free black with due process of law if that person were kidnapped by a slave catcher. To hold in the face of such precedent that the same Constitution recognizes the citizenship of free blacks feels like the rankest sophistry. No nation worth its salt could abide the treatment of its citizens in this way. Either the treatment of blacks or their designation as citizens had to go.
Levinson goes on to complain that
the obvious question is why Prigg -- and its author [Joseph Story] -- have suffered neither the public obloquy nor the condemnation by professional legal academics, obsessed with theories of interpretation, as have Dred Scott and its principal author, Chief Justice Roger Taney. Consider that Taney, surely one our most important Chief Justices, has never been the subject of a commemorative stamp issued by the United States Postal Service (unlike, bizarrely enough, Jefferson Davis and Robert E. Lee).29 Joseph Story, on the other hand, was one of four justices honored in 2009 by the United States Postal Service as part of a series of forty-four-cent stamps commemorating Supreme Court justices.30 The other three were Louis D. Brandeis, William J. Brennan, and Felix Frankfurter...
This is one of my problems with actually practiced originalism as well:
If you are going to proclaim "originalism", but don't want to consider the intent of the Radical Republicans whose amendments radically changed the Constitution, you are confessing to being a fake.
I'm puzzled why this point doesn't come up 100% of the time when original meaning is used.
Bill Stuntz (1958-2011)'s final book is out, The Collapse of American Criminal Justice. Luckily, not a large print article book, but a real 400 page book. Since he is my favorite writer on American Criminal law, I did just order it.
I've still failed to have a decent talk about Stuntz's pretty radical take on the failings of the US Criminal Justice system with any US prosecutor.
In any case, I have the highest hopes for this book.
Somebody should write a good modern book about this seminal historical event. There is stunningly little in the modern literature for an even that is so central to why German history went the way it did. Moreover, this conflict displays one of the central issues in modern state formation and is important for comparative political and legal history.
Raithel, Thomas: Der preußische Verfassungskonflikt 1862-1866 und die französische Krise von 1877 als Schlüsselperioden der Parlamentarismusgeschichte. In: Themenportal Europäische Geschichte (2007) puts together what appears to be the modern literature:
Eine parlamentarismusgeschichtliche Darstellung des preußischen Verfassungskonflikts steht immer noch aus, der entsprechende Band des „Handbuchs der Geschichte des deutschen Parlamentarismus“ liegt noch nicht vor. Vgl. allgemein vor allem Anderson, Eugene N., The Social and Political Conflict in Prussia 1858–1864 (University of Nebraska Studies, N.F., Bd. 12), Lincoln 1954; Hess, Adalbert, Das Parlament, das Bismarck widerstrebte. Zur Politik und sozialen Zusammensetzung des preußischen Abgeordnetenhauses der Konfliktszeit (1862–1866) (Politische Forschungen, Bd. 6), Köln 1964; aus den zahlreichen Handbuchdarstellungen vgl. vor allem Nipperdey, Thomas, Deutsche Geschichte 1800–1866. Bürgerwelt und starker Staat, München 1983, S. 749–768, 795-797; Huber, Ernst Rudolf, Deutsche Verfassungsgeschichte seit 1789, Bd. 3: Bismarck und das Reich, 3. Aufl., Stuttgart 1988 (verb.), S. 275–369; Schulze, Hagen, Preußen von 1850 bis 1871. Verfassungsstaat und Reichsgründung, in: Büsch, Otto (Hg.), Handbuch der preußischen Geschichte, Bd. 2: Das 19. Jahrhundert und große Themen der Geschichte Preußens, Berlin 1992, S. 293–372; Wehler, Hans-Ulrich, Deutsche Gesellschaftsgeschichte, Bd. 3: Von der „Deutschen Doppelrevolution“ bis zum Beginn des Ersten Weltkrieges. 1849–1914, München 1995, S. 251–301; aus der Bismarck-Literatur vgl. vor allem Gall, Lothar, Bismarck. Der weiße Revolutionär, Frankfurt am Main 1980, S. 199–380; Pflanze, Otto, Bismarck. Der Reichsgründer, München 1997 (zuerst englisch 1990), S. 171–340.
That's not all that much, mostly chapter long narrative treatments in survey histories. Dierk Walter, Preußische Heeresreformen 1807-1870. Militärische Innovation und der Mythos der „Roonschen Reform“, Paderborn 2003 is a modern treatment of some of the context, but doesn't look promising for the state building issues I'm concerned about. Otherwise, the literature is older, much of it from 1933-1939 or 1914-1918, when the assertion of executive authority again very much rises to the surface.
The topic came up today when I was talking with a US legal historian about the current US debt ceiling conflict, which to me seems to raise similar issues. But I'd like to know more about what happened in Prussia and how this history was interpreted over time, especially what seems to be an imprtant oral tradition of what happened.
Something like Andrea Thier's 1000 page 1999 habilitation Steuergesetzgebung und Verfassung in der konstitutionellen Monarchie, Staatssteuerreformen in Preussen, 1871- 1893, would be nice. Ideally, it would be even better than that...
Brad Delong writes, quoting Noah Smith:
Libertarians Who Tell You What to Think
Somehow I don't think Bryan Caplan understands what "liberty" is.
Noahpinion: The libertarian solution to inequality: Reviewing a book about happiness, George Mason University professor and Cato Institute blogger Bryan Caplan writes:
[The author] suggests that large differences in relative income can have a large influence on happiness...[but even if he] is right about the unhappy effects of income comparison, you shouldn't conclude that redistribution is the solution. Yes, you could fight inequality of income. But you could just as easily fight comparison of income. Instead of praising those who "raise awareness" about inequality, perhaps we should shame them, like the office gossip, for spreading envy and discontent.
So, the libertarian solution to the problem of inequality is to socially persecute anyone who talks about inequality?… Who wants to live in a society in which certain topics are verboten? Would we really be happier if the words "Gini coefficient" were NSFW? And, more fundamentally, when did restricting the free flow of information - by any means, governmental or social - increase our liberty?
Like I said, a very odd notion of what the word means….
The bottom line, libertarians, is that people care about what they care about. Telling them "No, do NOT care about that, care only about my arbitrary, rigid, and counterintuitive definition of liberty!" is not going to win your movement a lot of followers in the long term.
Today, Matt Yglesias posted about an example of the sort of change Bryan Caplan is suggesting, just in another sphere:
An amazing Anna Holmes column takes a look at Martin Luther King, Jr.’s relatively short-lived stint as an advice columnist for Ebony in the late 1950s.
The results are a powerful reminder that the past was a very different place:
King’s response to a cheated-on wife was to suggest that she “study” her rival to learn what her husband wanted in a woman. (“Are you careful with your grooming? Do you nag?” he asked.) He informed an unmarried woman grappling with whether to have sex that “real men still respect purity and virginity” and instructed an abused wife to determine whether there was anything within her personality to justify such treatment. “Are you sure that you have a radiating personality, a pleasant disposition, and that feminine charm which every man admires?” he asked a Miss Lonelyhearts. To a newlywed having troubles with her mother-in-law, he remarked, “There is an expression that no home is big enough to have two women at its head.”
People naturally focus on formal policy change as the essence of “politics,” but clearly one of the biggest social and political changes of the past 50 years is that nobody would say that stuff in a prominent magazine column these days. And yet we certainly haven’t made it illegal to tell abused wives that their problem is bad personality. Nor should we. People were persuaded to change their thinking.
Gallup has a poll out this week with the question
Next, I'm going to read you a list of issues. Regardless of whether or not you think it should be legal, for each one, please tell me whether you personally believe that in general it is morally acceptable or morally wrong. How about [X]?
The results are displayed below.
What does 'morally acceptable' mean and how can it be apllied to categories of behavior like divorce or extramarrital sex or gambling? My initial understanding of the quesition was along the lines of 'which behaviors are always morally unacceptable?'. But that's an nonsensically stringent interpretation that makes my reaction that none of the above behaviors are always morally unacceptable pretty uninformative about my actual views, maybe a bit more informative than my converse view that none of the above behaviors are always morally acceptable. It depends on context. Indeed, always morally unacceptable behavior is defined by reference to context, for instance murder, which is defined as morally unacceptable: (socially) unjustified premeditated killing for base motives. With a socially acceptable justification premeditated killing for base motives isn't murder (but is it still morally unacceptable? hm, probably, but only because of the base motives?).
More later, my family just showed up in the driveway...
Orrin Kerr reviews today's Ninth Circuit holding:
In a divided opinion today by Judge Trott, joined by Judge O’Scannlain, United States v. Nosal, the Ninth Circuit held that “an employee ‘exceeds authorized access’ under § 1030 when he or she violates the employer’s computer access restrictions — including use restrictions.” From the opinion:
Korn/Ferry employees were subject to a computer use policy that placed clear and conspicuous restrictions on the employees’ access both to the system in general and to the Searcher database in particular. . . . . For this reason, we conclude that the rule of lenity, which applied with particular force in interpreting the phrase “without authorization,” does not support ignoring the statutory language and the core rationale of Brekka.
Nosal’s argument that the government’s “Orwellian” interpretation would improperly criminalize certain actions depending only on the vagaries and whims of the employer is foreclosed by Brekka, which held unequivocally that under § 1030 the employer determines whether an employee is authorized. Therefore, as long as the employee has knowledge of the employer’s limitations on that authorization, the employee “exceeds authorized access” when the employee violates those limitations. It is as simple as that.
If you've ever seen the breath and scope of employer computer use restritions, there is a lot of federal criminal activity out there.
I don't know and I've been wondering for a while. There's not much literature on this and the literature that suggests that Somerset was a major impetus for American Independence looks like it might be wishful thinking. The literature I trust is much less sweeping. [But one problem is that some of the standard works I have are, as usual, inaccessibly stowed away in boxes in our rental house basement...]
On the other hand, Somerset being a major impetus for American Independence would make a huge amount of sense for a whole slew of reasons. But I never seen the cased laid out via citation of soruces, just as a side remark here or there, or the citation of sources that don't seem central to any politically powerful movement (i.e. abolitionists do occasionally take this view when they criticize slave owners, but that's hardly evidence for what slave owners were actually up to).
As examples of credible sources that make suggestive side remarks, see for instance George van Cleve, Somerset's Case and Its Antecedents in Imperial Perspective, Law & History Rev 2006, writing in the conclusion (citations omitted):
Mansfield's comment in the judgment that slavery had originated not just in England but in every country solely from positive law was a deliberate effort to demolish legal justification for slavery on any other basis, in England as well as in the colonies. Mansfield's positive law holding meant that slavery existed only within those jurisdictions where positive law sanctioned it, and only to the extent it was sanctioned. The fact that slavery became entirely a creature of positive law also meant that it could be selectively altered or abolished in the colonies. By the late eighteenth century, the English Crown had limited legal authority to govern in the colonies without Parliament's acquiescence; therefore, Mansfield's creation of a positive law framework for slavery in the context of rising abolitionist sentiment laid the groundwork for Parliamentary control of colonial slavery. Perhaps equally important was that making slave property a creature of positive law raised substantial issues about whether compensation to slaveowners would be required if Parliament chose to alter or abolish slavery.
Mansfield's positive law holding also knowingly devalued slave property by making slave status wholly dependent on the law of individual jurisdictions, which he (and slaveowners) knew meant that slave flight would increase because fugitive slaves could become free or protected against excessive force and compelled return, not just in England but in the colonies.
Whether Lord Mansfield qualified his remarks on slavery's origin by referring to limits on the powers of "courts of justice" to sanction slavery or not, a larger point remains. Reached after extraordinarily comprehensive and highly visible public arguments from England's preeminent lawyers, Lord Mansfield's conclusion on the origin of slavery, even if qualified, was inevitably, as he well knew, profoundly destructive of the moral and legal legitimacy of slavery, since it made slave property an artificial creature of statute and deprived slavery of the sanction of the common law. The sanction of the common law was also the sanction of religion and morality because it was widely believed at the time that they were subsumed within the common law. Mansfield's argument in Harrison and the religious and political arguments of Somerset's counsel amply illustrate the power of the contemporary view that the common law must be consistent with morality and religious belief. The sweeping nature of Mansfield's statement on positive law intentionally undermined the moral and religious, and thus the political, legitimacy of colonial slavery.
Although Lord Mansfield's decision may have bought time for slaveowners, as intended it was "the handwriting on the wall" for them. That colonial slaveowners understood Mansfield's unwillingness to defend their position largely accounts for their concerted attacks on the judgment that began almost immediately after it was announced. Mansfield's public defection in Somerset meant that it was really only a question of time until public opinion deserted slaveowners as well. The first part of Davis's conclusion in his classic analysis, after reviewing English law, including Somerset, that "English courts endorsed no principles that undermined colonial slave law" was technically accurate, but only because Lord Mansfield deliberately created a means to distinguish between English and colonial law on slavery in his Somerset judgment.
Davis's further conclusion that colonial law and English law could "coexist and even interpenetrate within the larger imperial sphere" was mistaken formalism. During the eighteenth century, English common law and colonial law on chattel slavery were regarded by many, including prominent English judges such as Lord Chancellor Hardwicke and Mansfield, as potentially or actually interdependent and were unquestionably in substantive conflict. Mansfield sought to find a way to avoid explicitly addressing that conflict by creating a new legal framework for slavery, but did so quite knowingly at the price of undercutting the legal, economic, political, and moral basis of slavery as an institution throughout the Atlantic empire.
On perspective here is that the struggle against Somerset isn't only or even mainly about protecting slavery: Somerset also lays out that slave holding jurisdictions, in order to be allowed to have slaves, are not going to be equal members of the Empire and on equal footing with Britain itself until they give up slavery, which undercuts the integrating force colonial aspirations to full status in the Empire have for holding together the Empire. American Independence for slave owners is not yet mainly about protecting slavery but instead about constructing a political culture in which you can both be economically primarily a slave holder and a full member of the first ranks of political society. After 1772 it becomes clear that this isn't going to be possible in the British Empire and the American South decides it needs to seek it's own course?
[Note the last paragraph of this post...]
Huckabee, probably the most electorally competent Republican running for President in 2012, is performing for the Republican primary electorate.
Iowa played host to two right-wing rodeos last weekend, the Conservative Principles Conference and the Rediscover God in America conference. While many of the GOP 2012 presidential hopefuls graced both stages, only at Rediscover God in America did they offer Americans two revealing facts: “America should be governed by biblical law,” and that discredited historian David Barton is a genius.
A former Texas GOP official, David Barton is a “Christian historical revisionist” who contends that “the United States of America is a Christian nation” and the separation of church and state is a “liberal myth.”
Though he “holds no advanced degrees and does not teach at any legitimate institution,” Barton is no small figure in conservative politics. He was invited by Fox News host Glenn Beck and Rep. Michele Bachmann (R-MN) to teach as a “scholar” on American history. At the conference, former House Speaker Newt Gingrich said that “every time he hears Barton speak, he learns something new.” But Right Wing Watch’s Kyle Mantyla captured the most outrageous endorsement yet. Introduced by Barton, Gov. Mike Huckabee (R-AK) insisted that children need to be “under his tutelage” and said that every American should be forced “at gun point” to “listen to every David Barton message”:
HUCKABEE: I don’t know anyone in America who is a more effective communicator [than David Barton.] I just wish that every single young person in America would be able to be under his tutelage and understand something about who we really are as a nation. I almost wish that there would be something like a simultaneous telecast and all Americans would be forced, forced — at gun point no less — to listen to every David Barton message. And I think our country would be better for it. I wish it’d happen.
When I hear that the founders were 'Christian' and that the US is hence a Christian nation, I always think 'weren't they also white Christians?' and aren't we hence a white Christian nation? At least we once had the white nation part of the 'white Christian nation' interpretation confirmed by the Supreme Court, in a less fanciful reading of the Founding than that produced by Barton:
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
BTW, Scott vs. Sandford is also the only opinion of the Supreme Court that references the 'Christian nation' phrase. (search here -- also one concurrence and three dissents). Not the best track record for using the 'Christian nation' perspective to interpret the US Constitution. Maybe we should force every young person in the US to actually read Scott vs. Sandford. And that's it, the only time the Supreme Court used the 'Christian nation' concept in an opinion, it was never needed before or after to decide a case.
Jim Fallows writes:
BEIJING, China. I don't mean to keep butting in and have just a minute to type this out, but I think it's important to direct attention to a new abuse of power underway in Wisconsin.
William Cronon (right), whom I know very slightly, is as good as the American academic establishment can now produce. He is president of the American Historical Association; he is the Frederick Jackson Turner professor of history at the University of Wisconsin; his Nature's Metropolis and Changes in the Land are books any writer would be proud to claim.
Because Cronon dared write an op-ed piece in the New York Times pointing to Wisconsin's long tradition of bi-partisan, "good government"-minded support of collective bargaining rights, and criticizing Gov. Scott Walker for his campaign against organized labor and collective bargaining, the Wisconsin Republican Party is launching a legal effort to look through his email archives to see if he has been involved in the recent protests in the state. The putative rationale is that Cronon's messages were sent on the University of Wisconsin's email system and therefore are covered by the state's open-records law.
Cronon gives a very, very detailed description of the case here, with an impassioned and, to me, convincing argument about why this should be seen as a flat-out effort at personal intimidation, in the tradition of Wisconsin's own Sen. Joe McCarthy. I encourage you to read that, and Josh Marshall's explanation of the case here. I hope to say more about this later.
The reason this strikes me particularly hard at the moment: I am staying in a country where a lot of recent news concerns how far the government is going in electronic monitoring of email and other messages to prevent any group, notably including academics or students, from organizing in order to protest. I don't like that any better in Madison than I do in Beijing.
Update #1: as outrages go, this isn't too exciting, but it's not the sort of thing that's going to make academics vote Republican.
One of my pet peeves, one that is radicalizing me along with lots of others, is the madness of the US intellectual property system. This what's called the tragedy of the anti-commons or the refeudalization of property relations (and labor relations for people like me who create intellectual property...so yes, this affects my everyday professional life, I had a legal meeting today on this very type of issue, with a lawyer going off to the a contract search for non-compete clauses that might create problems for a product I'm trying to get into the marketplace). Today's example via Crunchgear:
I guess the USPTO felt they were leaving Google out of the game, what with Apple suing over the phrase “App Store,” Microsoft suing for showing the status of a download, and Paul Allen suing for everything else. So they went ahead and granted Google’s request to patent the Google Doodle.
Yes, that’s right: among other things, they are claiming the method of creating a special logo and then providing special results if you click that logo. In their defense, the patent was filed for in 2001. Of course, that’s not much of a defense.
United States Patent 7,912,915 Brin March 22, 2011
Systems and methods for enticing users to access a web site
A system provides a periodically changing story line and/or a special event company logo to entice users to access a web page. For the story line, the system may receive objects that tell a story according to the story line and successively provide the objects on the web page for predetermined or random amounts of time. For the special event company logo, the system may modify a standard company logo for a special event to create a special event logo, associate one or more search terms with the special event logo, and upload the special event logo to the web page. The system may then receive a user selection of the special event logo and provide search results relating to the special event.
Brin; Sergey (Palo Alto, CA)
Google Inc. (Mountain View, CA)
April 30, 2001
For a more overarching perspective see John Holbo who recently wrote, quoting Matt Yglesias:
Matt Yglesias writes:
A lot of our politics is about symbolism. And symbolically intellectual property represents itself in the contemporary United States as a kind of property—it’s right there in the name. But it’s better thought of as a kind of regulation. Patents and copyrights are modeled, economically, the same as you would model any state-created monopoly.
I think the idea that intellectual property is property is too entrenched, at this point, for this to be an effective rhetorical strategy. Furthermore, rhetoric aside, philosophically the real breakthrough would be for people to realize that defending property rights is not tantamount to defending freedom. What strong IP protection generates is not a free market but something more like information feudalism: a market-unfriendly clusterfuck of fiefdoms and inescapably inefficient lord-vassal terms-of-service arrangements that any friend of freedom, in any ordinary sense, ought to look upon with disgust. The reason why libertarian rhetoric – defend property rights! – can underwrite feudalism, of all things, is that a certain sort of libertarianism, i.e. so-called propertarianism, really just plain is a form of feudalism. I’ve made the case at length.
I don’t see much hope of making a snappy rhetorical case that would break the unhealthy property = freedom link. But I think it might actually be possible to sidestep it by coming up with something like ‘information feudalism’ or ‘cyberfeudalism’ as a catchy term for IP rent-seeking or patent trolling. (Of course, ‘rent-seeking’ and ‘patent trolling’ are already pretty snappy.) To put the point another way, lots of folks are so averse to ‘government regulation’ that you will never get them to trade ‘private property’ talk for ‘regulation’ talk, as Yglesias suggests. But really what these folks are operating with is a kind of centralized = lots of regulation; decentralized = deregulated mental shortcut. The advantage of ‘feudalism’ would be to break that by making vivid the obvious possibility that decentralized stuff can still be too highly regulated, in effect.
Matt Yglesias responded with:
Works for me. This was, in fact, part of how late feudal economies worked. The state would raise funds, in part, by selling monopolies of various kinds. The owners of the monopolies would, I’m sure, regard the defense of their privileges as a form of defending their property. But the resulting system wasn’t capitalism and it wasn’t a progressive triumph against the iniquities of the market either.
There's lots of law and economics work on this issue that I don't tend to link to or write about since the issues are actually 'more complex', but I'm getting more and more radicalized on this point.
A popular treatment by Michael Heller, who coined the 'tragedy of the anti-commons' in a 1998 HLR paper (which made a big impression on me at the time...1107 citations on Google Scholar), is The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives. Heller's most cited paper is the 1998 Can Patents Deter Innovation? The Anticommons in Biomedical Research:
The “tragedy of the commons” metaphor helps explain why people overuse shared resources. However, the recent proliferation of intellectual property rights in biomedical research suggests a different tragedy, an “anticommons” in which people underuse scarce resources because too many owners can block each other. Privatization of biomedical research must be more carefully deployed to sustain both upstream research and downstream product development. Otherwise, more intellectual property rights may lead paradoxically to fewer useful products for improving human health.
A nice polemic by Andrew Koppelman (Northwestern Law School): Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform.
I was going to cut and paste from the pdf, but I don't want to struggle with formatting issues.
Chait muses about the opposition to Health Care Reform:
The conservative legal brief against the Affordable Care Act rests heavily on a simple proposition. Government can’t make us obtain private insurance because, as the argument goes, that would be forcing us to buy a private product.
Politically and constitutionally, it may be an effective argument. But do the law's harshest critics, the ones screaming about tyranny, actually believe that? In particular, do they think it's even scarier than a single-payer, government-run program, as they argue in their briefs and Judge Roger Vinson suggested in his Monday ruling?
I have my doubts. And while I offered some of my reasons yesterday, I left out a big one: Social Security privatization.
You remember privatization, don’t you? The idea was to take Social Security, a mandatory public pension program, and turn it into a system of mandatory personal investment accounts. The schemes evolved over time, with different details, but the gist was always the same. During your working years, you’d make contributions into the accounts, just like you currently pay taxes that fill the Social Security Trust. Over time, you would invest the money in your private account—that is, you’d buy stocks, bonds, and so on—typically within certain guidelines set by the government. Once you hit retirement, you’d start to withdraw from the accounts or perhaps purchase an annuity, relying on subsequent payments for your financial security.
Conservatives presumably thought privatization was constitutional; otherwise, they would not have worked so feverishly to enact it. But if the principle holds for old-age insurance, it ought to hold for medical insurance, too. In other words, if it’s ok for the government to make you pay for regulated private investments, then it should be ok for the government to make you pay for regulated private health insurance. Yet, as far as I can tell, the folks who spent all of those years promoting Social Security as an all-American, free market innovation are the same ones that now insist the Affordable Care Act is an unprecedented threat to liberty.
Kevin Drum observes:
The editors of National Review on the individual mandate provision of the healthcare reform bill:
The mandate highlights the coercive and obnoxious character of Obamacare as a whole. The whole scheme works, to the extent it works, only if people are forced to buy a product they would not buy on a free market.
Jim Manzi, in the current issue of National Review, explaining that Social Security as a tax-supported pension plan should be dismantled:
Instead, we should have a defined-contribution pension program requiring individuals to contribute a reasonable proportion of their income (though some flexibility should be allowed) to an array of investment vehicles to which they hold property rights.
Granted, there's no requirement that every contributor to National Review has to agree with its official editorial positions. But converting Social Security from a tax-supported program into one where people are instead required to buy private retirement annuities is a pretty mainstream conservative view. So what are we to make of the proposition that forcing people to buy retirement annuities is OK but forcing them to buy healthcare insurance isn't?
Beats me. But I figure there are two possibilities. (1) They don't really think a healthcare mandate is "obnoxious" at all. It's just a handy talking point. (2) They do think the mandate is obnoxious, and they think the same thing about private Social Security accounts. And if they ever succeed in getting them, they'll immediately file suit in federal court to have the whole program declared unconstitutional.
Republicans believe the health care mandate is unconstitutional because it is a Democratic policy initiative (designed to accommodate Republican interests...financing health care with taxes would be preferable).
This seems terribly weak kneed from the DoJ:
According to an announcement made by the US Justice Department today, six major tech companies - Apple, Intel, Google, Intuit, Pixar, and Adobe - have reached a settlement in an antitrust investigation. The case centered around an agreement that the companies had to not scoop up each other's employees. The Justice Department calls this "restrained competition" for employees.
Several of these companies had agreements not to "cold call" employees of the other company with job offers. Some, like Google and Intuit, decided not to make offers to the other's employees at all. The settlement "prohibits the companies from engaging in anticompetitive no solicitation agreements." The catch, this will only be in effect for five years. At which time we could go through this whole process again. Additionally, a Judge still must approve the deal.
The Justice Department indicated some of these anticompetitive arrangements went back at least five years. They further stated that this investigation was necessary as it reduced the ability of high tech workers to compete for jobs. It was effectively salary-fixing.
No fines, no restitution, no admission of wrongdoing. Instead we get 'the companies will also implement compliance measures tailored to these practices.' Well, it might be worth something if that has teeth, since getting evidence on these sort of anticompetitive practices can be difficult.
We need better antitrust. And the ability to impose (proportionate) compliance measures on companies without settlements.
The Guardian reports:
A Catholic priest directed devastating IRA car bomb attacks in the Northern Irish village of Claudy in 1972 and his role was covered up by senior police officers, government ministers and the Catholic hierarchy, an official investigation has revealed.
The government said today it was "profoundly sorry" about the cover-up, while Northern Ireland's Catholic church said it accepted the findings, calling them "shocking".
Nine people were killed and more than 30 were injured when three vehicles exploded on the main street without warning on 31 July. It was one of the worst atrocities of the bloodiest year of the Troubles.
Three of the dead caught up in the mid-morning blast were children. No one was ever charged with the killings, and the IRA at the time denied responsibility.
The long-awaited report by the police ombudsman for Northern Ireland, published today, confirms suspicions that Father James Chesney, a priest in the nearby village of Bellaghy, was directly involved in the IRA operation, and suggests his involvement was even greater than previously assumed.
Senior politicians feared the arrest of a priest in connection with such an atrocity – at a time when sectarian killings in Northern Ireland were out of control and the province stood on the brink of civil war – could destabilise the security situation even further.
A deal was therefore arranged behind closed doors to remove Chesney from the province without provoking sectarian fury. Documents seen by the police ombudsman show that the ACC wrote to the Northern Ireland Office (NIO) on 30 November 1972 saying that he had been considering "what action, if any, could be taken to render harmless a dangerous priest, Father Chesney", and suggesting: "Our masters may find it possible to bring the subject into any conversations they may be having with the cardinal or bishops at some future date."
An NIO official wrote back a week later confirming that the secretary of state, Willie Whitelaw, had held a meeting with Cardinal Conway, the head of the Catholic church in Ireland, and: "The cardinal said that he knew that the priest was a very bad man and would see what could be done. The cardinal mentioned the possibility of transferring him to Donegal."
A number of senior RUC officers, including the then chief constable, Sir Graham Shillington, saw the correspondence. Shillington commented on the letter: "I would prefer Tipperary". (Donegal is only just across the border with the Irish Republic; Tipperary is 200 miles south.)
Church records confirm the deal: "An entry in Cardinal Conway's diary for 5 December 1972 confirms that the meeting with the secretary of state took place. It records that he had a "rather disturbing tête-à-tête at the end about C".
Chesney was subsequently ordered to take sick leave in early 1973, and was transferred to a parish in County Donegal later that year. When questioned by his superiors, he denied involvement in the Claudy bombings. He died in 1980. ...
In a joint statement Seán Brady, the archbishop of Armagh, and Séamus Hegarty, the Bishop of Derry, described the bombing as "an appalling crime", saying: "We accept the ombudsman's findings and conclusions."
They added: "Throughout the Troubles, the Catholic church, along with other churches in Northern Ireland, was constant in its condemnation of the evil of violence. It is therefore shocking that a priest should be suspected of involvement in such violence.
"This case should have been properly investigated and resolved during Father Chesney's lifetime. If there was sufficient evidence to link him to criminal activity, he should have been arrested and questioned at the earliest opportunity, like anyone else. We agree with the police ombudsman that the fact this did not happen failed those who were murdered, injured and bereaved in the bombings."
It is believed Chesney joined the south Derry brigade of the IRA in early 1972 in response to the killings of civil rights protesters in Derry on Bloody Sunday by British soldiers.
All the senior figures involved in the deal to remove Chesney and hush up his role have since died. ...
In a highly critical conclusion, the report states: "For senior police officers to have had the weight of intelligence and information that they had pointing to Father Chesney's possible involvement in terrorism and not to have pursued lines of inquiry, which could potentially have implicated him in or eliminated him from the investigation, was wrong and compromised their investigation into the Claudy bombings."
The decision amounted to collusion between the church and the state, according to the police ombudsman, Al Hutchinson. "I accept that 1972 was one of the worst years of the Troubles and that the arrest of a priest might well have aggravated the security situation," he said. "Equally, I consider that the police failure to investigate someone they suspected of involvement in acts of terrorism could, in itself, have had serious consequences.
"In the absence of explanation the actions of the senior RUC officers, in seeking and accepting the government's assistance in dealing with the problem of Father Chesney's alleged wrongdoing, was by definition a collusive act."
Had the participants in the deal still been alive, Hutchinson said, "their actions would have demanded explanation which would have been the subject of further investigation".
Not that any of this is surprising or that letting Chesney go was the wrong thing to do...just that being a Catholic priest gets you a lot of forbearance. And that the Catholic hierarchy isn't going to necessarily send anybody far away or excommunicate them for the right sort of murder. Indeed, it appears that Chesney remained a practicing priest until he died. [Am I too conspiratorial in wondering if Chesney's death at age 46 of cancer was of natural causes? What's the track record for using carcinogens to murder kill people intentionally and covertly?]
Not that 1972 isn't a challenging period for personnel policy.
Old news by now, but this still doesn't rub me the right way, though it is typical for how court interpretation of defendant constitutional rights works:
Judge Lewis Kaplan (S.D.N.Y.) ruled yesterday that former Guantanamo detainee Ahmed Khalfan Ghailani's five-year period of custody with the CIA and Department of Defense before presentation for trial in federal court did not violate his Sixth Amendment right to a speedy trial. The ruling, unless overturned on appeal, means that Ghailani's criminal case in the Southern District can move forward. ...
Judge Kaplan's "functional" analysis carefully balanced the four factors that the Supreme Court enumerated for speedy trial claims in Barker v. Wingo:
(1) the length of the delay
(2) the reason for the delay
(3) the defendant's assertion of the right, and
(4) prejudice to the defendant.
Op. at 20. More than any other single factor, though, Judge Kaplan's decision turned on the reason for the government's detention. He wrote that the CIA detained Ghailani for two years for legitimate intelligence-gathering purposes related to national security--detention that could not be counted against the government for speedy-trial purposes, notwithstanding Ghailani's allegations of abuse during this period.
The NYT summarizes:
In his ruling, Judge Kaplan weighed the factors used to assess speedy trial claims, like the length of and reason for a delay, and the prejudice caused to a defendant. While the delay in bringing Mr. Ghailani to trial was long, he said, it “did not materially infringe upon any interest protected by the right to a speedy trial.”
I was wondering last year how the state would overcome the constitutional right to a speedy trial in these cases.
Update #1: that the delay “did not materially infringe upon any interest protected by the right to a speedy trial” is still sticking in my mind. Who could possibly see any interest anybody might have in a trial faster than 5 or more years out? No possible liberty interest like not being a prisoner...but maybe he's a prisoner no matter how the trial comes out, in that case the judge might be right. What the word for that sort of trial?
Finally, if you actually read Barker v. Wingo you find that Judge Kaplan's decision seems to ignore important aspects of the balancing test outlined in that precedent. For instance Barker v. Wingo reads in part in its concluding section:
A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. [Footnote 33] Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record, because what has been forgotten can rarely be shown.
We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. [Footnote 34] The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. [Footnote 35] Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility. See cases cited in n 33, supra.
But maybe that is dicta (?), since Barker was mostly out on bail.
Also, what's the deal with US courts posting non-searchable pdfs?
[Originally posted July 19.]
My initial reaction to Holder v. Humanitarian Law Project isn't good. I think this is a Supreme Court ruling I oppose.
This post is in the spirit of actually posting my opinions, just to get the up, even if I'm not going to explain myself. Too much work before going to bed.
The WP editorial version of the holding:
WHICH OF the following is illegal under the law that bars providing "material support" to terrorists?:
1. Giving money to a terrorist organization.
2. Providing explosives training to terrorists.
3. Urging a terrorist group to put down its arms in favor of using lawful, peaceful means to achieve political goals.
After Monday's Supreme Court ruling in Holder v. Humanitarian Law Project the answer is: all three.
This is a overbroad unprincipled criminalization of political speech with oppressive consequences. Just the sort of thing the First Amendment is usually thought to cover.
Update #1: Gonzalo Lira writes:
To sum up: The U.S. government can decide unilaterally who is a terrorist organization and who is not. Anyone speaking to such a designated terrorist group is “providing material support” to the terrorists—and is therefore subject to prosecution at the discretion of the U.S. government. And if, in the end, it turns out that one definitely was not involved in terrorist activities, there is no way to receive redress by the state.
READ CAREFULLY. By reading this email, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (”BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
I have been tempted to do this in the past, if just to see if it gets a reaction from corporate entities who annoy me with unreasonable EULAs.
How exceptional was ancient Roman citizenship among conceptions of social and political membership? And how did Rome develop its form of citizenship? How did citizenship work in practice?
Not something I know much about. Diarmaid MacCulloch's history of Christianity hints that Roman citizenship served as an important context for Christian conceptions of membership in an extended community. Claude Nicolet also seems to hold this view, for instance in The World of the Citizen in Republican Rome. I suspect it is the common view, but I'm not familiar with the literature. (And to be interesting this connection would need to be filled out.)
Well, my sources -- at least the ones who will speak freely -- on Kagan are coming up dry so far. So I need to rely on the press.
I did read and liked her Presidential Administration HLR article in 2000 2001, supposedly the 6th most cited law review article published in the last decade (not that being much cited necessarily is a good thing...some articles are mostly cited in order to pan them, not that this isn't used by authors to drive up their status...not that this is the case here, though being able to cite a prominent Clinton Administration lawyer supporting the unitary executive might drive some citations).
Somebody should put the Presidential Administration up on the web, out from behind JSTOR's paywall. Ah, here it is...wasn't available yesterday.
My mother is out visiting us and we were talking about law enforcement and the lack of coherence in legal rules. One example she reminded me of was one of my brother-in-law's initial policing duties, done on very very long new cop shifts well over 12 hours in length: pulling over truckers to fine and lecture them for driving without break for more than 12 hours.
If Supreme Court justice John Paul Stevens retires, and is replaced by Elena Kagan (the favorite), then the Supreme Court of the United States of America will have no Protestants on the bench.
Razib goes on to observe that, unlike in the past, this no longer seems to be a live issue in the US today.
Observing the legal fights about deporting non-citizens with criminal records from the US (NYT), why doesn't the same phenomena occur between US states for US citizens? Say Virginia convicts a US citizen of robbery and sentences them to leaving Virginia, to be enforced by prison if they don't leave.
You'd think this would have appeal or at least that it would be tried. So why doesn't it happen, especially in times of fiscal stress for states? It wouldn't seem to violate the Constitution since it includes the required due process protections and its not interstate commerce (or is it?).
And to what extent do the recent post-release harsh residency restrictions for sex offenders de facto amount to this sort of policy? Do sex offenders under onerous residency restrictions disproportionately leave states with these restrictions?
Mark Roe, one of my favorite law professors, has a new paper out on the special treatment of derivatives counterparties of firms in Chapter 11:
Chapter 11 bars bankrupts from immediately repaying their creditors, so that the court can reorganize the debtor without creditors shredding the bankrupt firm’s business. Not so for the bankrupt’s derivatives counterparties, who can seize and liquidate collateral, net out gains and losses, terminate their contracts with the bankrupt, and keep both preferential eve-of-bankruptcy payments and fraudulent conveyances they obtained from the debtor in ways that favor them over other creditors. Their right to jump to the head of the bankruptcy repayment line, ahead of even ordinary secured creditors, warps their pre-bankruptcy incentives both to monitor the pre-bankruptcy debtor and to adjust their investments to better account for counterparty risk, since they do well in any resulting bankruptcy. If they bear less risk, other creditors bear more risk and have more incentives to monitor the debtor or to assure themselves that the debtor is a safe bet. But the other creditors — such as the United States of America — are poorly positioned to provide that monitoring. Moreover, the policy justification for the super-priorities — reducing financial contagion risk — is difficult to maintain today: contagion is as likely to be propagated by the priorities as it is to be stifled, the priorities did not prevent contagion in the 2007-2008 financial melt-down and may have spread it, and we use alternate resolution mechanisms anyway for systemically vital failing financial institutions. Bankruptcy policy was made in the erroneous belief that it could contain contagion and that there was no other way to do so. The best regulatory reaction to these monitoring and regulatory disconnects is for Congress to cut back the extensive de facto priorities embedded now in chapter 11 for these derivatives counterparties. Repeal would induce the derivatives market to better recognize the risks of counterparty financial failure, which in turn should dampen the possibility of another AIG/Bear/Lehman financial melt-down, thereby helping to maintain financial stability. Yet the major financial reform packages now in Congress do not contemplate the needed cutbacks.
The NYT reports:
Peter W. Galbraith, an influential former American ambassador, is a powerful voice on Iraq who helped shape the views of policy makers like Joseph R. Biden Jr. and John Kerry. In the summer of 2005, he was also an adviser to the Kurdish regional government as Iraq wrote its Constitution — tough and sensitive talks not least because of issues like how Iraq would divide its vast oil wealth.
Now Mr. Galbraith, 58, son of the renowned economist John Kenneth Galbraith, stands to earn perhaps a hundred million or more dollars as a result of his closeness to the Kurds, his relations with a Norwegian oil company and constitutional provisions he helped the Kurds extract.
In the constitutional negotiations, he helped the Kurds ram through provisions that gave their region — rather than the central Baghdad government — sole authority over many of their internal affairs, including clauses that he maintains will give the Kurds virtually complete control over all new oil finds on their territory.
Mr. Galbraith, widely viewed in Washington as a smart and bold foreign policy expert, has always described himself as an unpaid adviser to the Kurds, although he has spoken in general terms about having business interests in Kurdistan, as the north of Iraq is known.
So it came as a shock to many last month when a group of Norwegian investigative journalists at the newspaper Dagens Naeringsliv began publishing documents linking Mr. Galbraith to a specific Norwegian oil company with major contracts in Iraq.
Interviews by The New York Times with more than a dozen current and former government and business officials in Norway, France, Iraq, the United States and elsewhere, along with legal records and other documents, reveal in considerable detail that he received rights to an enormous stake in at least one of Kurdistan’s oil fields in the spring of 2004.
As it turns out, Mr. Galbraith received the rights after he helped negotiate a potentially lucrative contract that allowed the Norwegian oil company DNO to drill for oil in the promising Dohuk region of Kurdistan, the interviews and documents show.
He says his actions were proper because he was at the time a private citizen deeply involved in Kurdish causes, both in business and policy.
When drillers struck oil in a rich new field called Tawke in December 2005, no one but a handful of government and business officials and members of Mr. Galbraith’s inner circle knew that the constitutional provisions he had pushed through only months earlier could enrich him so handsomely.
As the scope of Mr. Galbraith’s financial interests in Kurdistan become clear, they have the potential to inflame some of Iraqis’ deepest fears, including conspiracy theories that the true reason for the American invasion of their country was to take its oil. It may not help that outside Kurdistan, Mr. Galbraith’s influential view that Iraq should be broken up along ethnic lines is considered offensive to many Iraqis’ nationalism. Mr. Biden and Mr. Kerry, who have been influenced by Mr. Galbraith’s thinking but do not advocate such a partitioning of the country, were not aware of Mr. Galbraith’s oil dealings in Iraq, aides to both politicians say.
Some officials say that his financial ties could raise serious questions about the integrity of the constitutional negotiations themselves. “The idea that an oil company was participating in the drafting of the Iraqi Constitution leaves me speechless,” said Feisal Amin al-Istrabadi, a principal drafter of the law that governed Iraq after the United States ceded control to an Iraqi government on June 28, 2004.
In effect, he said, the company “has a representative in the room, drafting.”
DNO’s chief executive, Helge Eide, confirmed that Mr. Galbraith helped negotiate the Tawke deal and advised the company during 2005. But Mr. Eide said that Mr. Galbraith acted solely as a political adviser and that the company never discussed the Constitution negotiations with him. “We certainly never did give any input, language or suggestions on the Constitution,” Mr. Eide said.
When the findings based on interviews by The Times and other research were presented to Mr. Galbraith last weekend, he responded in writing to The Times, confirming that he did work as a mediator between DNO and the Kurdish government until the oil contract was signed in the spring of 2004, and saying that he maintained an “ongoing business relationship” with the company throughout the constitutional negotiations in 2005 and later.
Mr. Galbraith says he held no official position in the United States or Iraq during this entire period and acted purely as a private citizen. He maintains that his largely undeclared dual role was entirely proper. He says that he was simply advocating positions that the Kurds had documented before his relationship with DNO even began.
“What is true is that I undertook business activities that were entirely consistent with my long-held policy views,” Mr. Galbraith said in his response. “I believe my work with DNO (and other companies) helped create the Kurdistan oil industry which helps provide Kurdistan an economic base for the autonomy its people almost unanimously desire.”
“So, while I may have had interests, I see no conflict,” Mr. Galbraith said.
Kurdish officials said that they were informed of Mr. Galbraith’s work for DNO and that they still considered him a friend and advocate. Mr. Galbraith said that during his work on the Constitution negotiations, the Kurds “did not pay me and they knew I was being paid by DNO.”
Mr. Istrabadi, who was also the Iraqi ambassador to the United Nations from 2004 to 2007, said the case was especially troubling given the influence of Mr. Galbraith’s policy views. In his writings — some of them on the Op-Ed page of The Times and in the New York Review of Books — he is generally identified as a former ambassador or with some other generic description that gives no insight into his business interests in the area.
Mr. Galbraith, for many years on the staff of the Senate Foreign Relations Committee, has a long relationship with the Kurds. In 1988, he documented Saddam Hussein’s systematic campaign against the Kurds, including the use of gas. He served as United States ambassador to Croatia between 1993 and 1998. In September, he was fired as the No. 2 official with the United Nations mission in Afghanistan after he accused the head of the mission of concealing allegations of electoral fraud.
Views of Mr. Galbraith’s business ties are harsh within the central Baghdad government, which has long maintained, in stark opposition to Mr. Galbraith’s interpretation of the Constitution, that all the oil contracts signed by the Kurdish government were illegal.
Referring to the Constitution negotiations, Abdul-Hadi al-Hassani, vice chairman of the oil and gas committee in the Iraqi Parliament, said that Mr. Galbraith’s “interference was not justified, illegal and not right, particularly because he is involved in a company where his financial interests have been merged with the political interest.”
Citing what he said were confidentiality agreements, Mr. Galbraith refused to give details of his financial arrangement with the company, and the precise nature of his compensation remains unknown. But several officials, including Mr. Galbraith’s business partner in the deal, the Norwegian businessman Endre Rosjo, said that in addition to whatever consulting fees the company paid, he and Mr. Galbraith were together granted rights to 10 percent of the large Tawke field and possibly others.
An internal DNO document dated Dec. 3, 2006, which was first obtained by Dagens Naeringsliv, indicates that a company called Porcupine, registered in Delaware under Mr. Galbraith’s name, still held the rights to the 5 percent stake at that time, while a company associated with Mr. Rosjo held the other 5 percent.
Mr. Eide, the DNO executive, said that as far as the company knew, Mr. Galbraith’s work was proper.
“To our knowledge, Mr. Galbraith in 2004 was working as a businessman with no political assignments,” Mr. Eide said. “Given our network model and limited experience and knowledge from the region at that time, our evaluation concluded that we should use Mr. Galbraith to advise DNO in the first stage of the project.”
As revelations began appearing in recent weeks, Mr. Galbraith at first issued qualified denials stating that he had never been party to any arrangement in Iraq technically referred to in the oil industry as a production-sharing contract. But industry insiders say that the rights could have been couched in different terms — not an ownership stake, but a conditional right or option to become part of such an agreement at a future date.
Estimating the value of any stake in the Kurdish fields is difficult given the political uncertainties. But Are Martin Berntzen, an oil analyst at Oslo’s First Securities brokerage, said the Tawke field alone has proven reserves of about 230 million barrels, a figure likely to increase as new wells are drilled.
“Given no political risk, a 5 percent stake should be worth at least $115 million,” he said, though he emphasized that he knew nothing about Mr. Galbraith’s arrangement.
A possible indication of Mr. Galbraith’s estimate of the deal’s worth may be discerned in a London arbitration case in which Porcupine and a Yemeni investor who now apparently holds Mr. Rosjo’s former share are seeking more than $525 million from DNO, according to a filing reported on the legal news Web site Law.com. Oil analysts in Norway played down the likelihood of a reward as large as the claim.
According to DNO, the claim represents up to 10 percent of the value of the regional production contract, which the Norwegian oil firm now shares with a Turkish energy company after Kurdish authorities reviewed the previous deal and barred “certain third-party interests” from participating further. At a shareholders meeting on Wednesday, Mr. Eide refused to name Mr. Galbraith as a claimant in the case. He acknowledged, however, that DNO lost a procedural ruling in the case last May, and he said a final decision on damages was expected in early 2010.
In his response, Mr. Galbraith would say only that “my contractual relationship was with DNO and is the subject of pending arbitration.”
via Legal Theory Blog, I see that Daniel Halberstam and Christoph Möllers have some harsh/shrill criticism of the German Constitutional Court. I sort of follow this as a topic, but mostly because I don't know how it will come out.
Daniel Halberstam and Christoph Möllers (University of Michigan Law School and University of Goettingen) have posted The German Constitutional Court Says 'Ja Zu Deutschland!' (German Law Journal, Vol. 10, No. 8, 2009) on SSRN. Here is the abstract:
In announcing the decision of the Bundesverfassungsgericht (“Federal Constitutional Court” or “FCC”) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “The German Basic Law says “yes” to the Treaty of Lisbon.” The decision has since received much praise from commentators for having struck down only the existing version of an accompanying federal law while preserving Germany’s ratification of the Treaty more broadly. The decision is thus likened to another act of judicial cooperation, the FCC’s 1992 decision on the Maastricht Treaty.
This short comment explains what is old and what is new about the FCC’s current decision about Europe. The comment exposes the FCC’s highly deceptive invocation of having taken a “Europe-friendly” stance in interpreting the German Basic Law. The discussion exposes the myriad contradictions within the opinion and the decision’s strange consequences both in terms of the concrete workings of the European Union and in terms of its grand theory of democracy. The comment highlights the FCC’s mistaken understanding of the European Parliament, the profound failure of the Court’s reflexive idea of state sovereignty, and the way in which the opinion condemns Europe to a perpetual state of deficiency. In all this, the Federal Constitutional Court installs itself as the sole arbiter of Germany’s constitutional destiny - even above the people themselves.
A subversive opinion with more twists and turns than even the FCC itself comprehends, the decision ultimately stands as a crude speech act asserting little more than the power of the Court itself.
To quote: ...well, I was going to quote, but the pdf is causing problems with formatting if I cut and paste.
The decision doesn't seem that bad to me, it mostly seems to require that the German people voice their desire to transfer aspects of sovereignty to the EU more explicitly, not clearly a bad thing and maybe something you'd expect constitutional courts to require. If the court tries to gum up that process to much there might be a problem, but I don't see that yet. This isn't the US supreme court.
From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund developed an Americanized version of the Rechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter, a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund, Administrative Powers over Persons and Property (1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today the Rechtsstaat is largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.
More troublesome weirdness from the US criminal justice system, as Slate reports:
In 1983, New York's high court struck down as unconstitutional a 1960s-era provision that made it illegal to cruise—that is, to hit on someone in a public place. And yet in the 26 years since, on thousands of occasions, the New York Police Department has continued to enforce the defunct law, historically used to target gay people.
The defendant in the 1983 case was a gay man arrested for striking up a conversation with a plainclothes police officer and asking him back to his house for sex. The court threw out the anti-cruising law, reasoning that the state couldn't criminalize an act anticipatory to sodomy when sodomy itself was constitutionally protected. (Two years earlier, the same court had found the state's anti-sodomy law unconstitutional.)
Whatever one may think of cruising and whether it should be prohibited, the court's ruling should have killed off the statute. Instead, in the 26 years of this law's odd posthumous career, district attorneys brought 4,750 prosecutions and judges convicted 2,550 defendants. For violating an imaginary law, these defendants paid a decidedly non-imaginary $70,000 in bail and $190,000 in court fees and fines. In the last 10 years, NYPD officers also issued 9,693 citations, forcing citizens to pay $71,000 in fees. The criminal records of these victims have never been expunged and the fees and fines have not been refunded. ...
In March 2008, civil rights lawyers brought a class action in federal court on behalf of the thousands of people unconstitutionally arrested, cited, and prosecuted under the defunct anti-cruising law. In May, Judge Shira Scheindlin ordered the City of New York to send letters to the police, district attorneys, and trial judges to remind them that the anti-cruising law was void and should no longer be enforced. NYPD brass sent out a bulletin to officers stating that in each officer's personal copy of the penal code, the law should be "stricken by drawing a line through it in black ink." (After 26 years, the law was still on the books because the legislature had never repealed it.)
Apparently, the NYPD ran out of black ink. From the day that the bulletin went out until now, hundreds of additional summonses for cruising have been issued. Celeste Koeleveld, of the New York City Law Department, says that the NYPD has taken "many proactive steps to address the issuance of any summonses" under unconstitutional laws. But the most recent summons for violating the anti-cruising law was issued in September 2009—nearly a year and a half after the NYPD's bulletin went out. "It is truly shocking that after 26 years and multiple court orders, they just can't stop doing it," said McGregor Smyth, a lawyer at the Bronx Defenders who is counsel for the plaintiffs in the class action. The NYPD did not respond to several requests for comment.
The lack of a citation to the 1983 does raise a red flag on the reporting and I cannot find other sources online. via Sullivan
It seems the UK has been running a large scale police operation to attack trafficking in women this year, and The Guardian writes up the results very forcefully -- quite astounding press coverage from a top tier newspaper. Not sure what to make of this, but I it would be good to know more. Part of the context is a new criminal bill before Parliament. Two articles:
The UK's biggest ever investigation of sex trafficking failed to find a single person who had forced anybody into prostitution in spite of hundreds of raids on sex workers in a six-month campaign by government departments, specialist agencies and every police force in the country.
The failure has been disclosed by a Guardian investigation which also suggests that the scale of and nature of sex trafficking into the UK has been exaggerated by politicians and media.
Current and former ministers have claimed that thousands of women have been imported into the UK and forced to work as sex slaves, but most of these statements were either based on distortions of quoted sources or fabrications without any source at all.
While some prosecutions have been made, the Guardian investigation suggests the number of people who have been brought into the UK and forced against their will into prostitution is much smaller than claimed; and that the problem of trafficking is one of a cluster of factors which expose sex workers to coercion and exploitation. ...
When police in July last year announced the results of Operation Pentameter Two, Jacqui Smith, then home secretary, hailed it as "a great success". Its operational head, Tim Brain, said it had seriously disrupted organised crime networks responsible for human trafficking. "The figures show how successful we have been in achieving our goals," he said.
Those figures credited Pentameter with "arresting 528 criminals associated with one of the worst crimes threatening our society". But an internal police analysis of Pentameter, obtained by the Guardian after a lengthy legal struggle, paints a very different picture.
The analysis, produced by the police Human Trafficking Centre in Sheffield and marked "restricted", suggests there was a striking shortage of sex traffickers to be found in spite of six months of effort by all 55 police forces in England, Wales, Scotland and Northern Ireland together with the UK Border Agency, the Serious and Organised Crime Agency, the Foreign Office, the Northern Ireland Office, the Scottish government, the Crown Prosecution Service and various NGOs in what was trumpeted as "the largest ever police crackdown on human trafficking".
The analysis reveals that 10 of the 55 police forces never found anyone to arrest. And 122 of the 528 arrests announced by police never happened: they were wrongly recorded either through honest bureaucratic error or apparent deceit by forces trying to chalk up arrests which they had not made. Among the 406 real arrests, more than half of those arrested (230) were women, and most were never implicated in trafficking at all.
Of the 406 real arrests, 153 had been released weeks before the police announced the success of the operation: 106 of them without any charge at all and 47 after being cautioned for minor offences. Most of the remaining 253 were not accused of trafficking: 73 were charged with immigration breaches; 76 were eventually convicted of non-trafficking offences involving drugs, driving or management of a brothel; others died, absconded or disappeared off police records.
Although police described the operation as "the culmination of months of planning and intelligence-gathering from all those stakeholders involved", the reality was that, during six months of national effort, they found only 96 people to arrest for trafficking, of whom 67 were charged.
Forty-seven of those never made it to court.
Only 22 people were finally prosecuted for trafficking, including two women who had originally been "rescued" as supposed victims. Seven of them were acquitted. The end result was that, after raiding 822 brothels, flats and massage parlours all over the UK, Pentameter finally convicted of trafficking a grand total of only 15 men and women.
Police claimed that Pentameter used the international definition of sex trafficking contained in the UN's Palermo protocol, which involves the use of coercion or deceit to transport an unwilling man or woman into prostitution. But, in reality, Pentameter used a very different definition, from the UK's 2003 Sexual Offences Act, which makes it an offence to transport a man or woman into prostitution even if this involves assisting a willing sex worker.
Internal police documents reveal that 10 of Pentameter's 15 convictions were of men and women who were jailed on the basis that there was no evidence of their coercing the prostitutes they had worked with. There were just five men who were convicted of importing women and forcing them to work as prostitutes. These genuinely were traffickers, but none of them was detected by Pentameter, although its investigations are still continuing.
Two of them — Zhen Xu and Fei Zhang — had been in custody since March 2007, a clear seven months before Pentameter started work in October 2007.
The other three, Ali Arslan, Edward Facuna and Roman Pacan, were arrested and charged as a result of an operation which began when a female victim went to police in April 2006, well over a year before Pentameter Two began, although the arrests were made while Pentameter was running.
It appears that in the UK criminal cases actually go to court. In the US most accused plea bargain, since going to court is too risky, which means that the US court system doesn't reign in enforcement panics like this one in the UK. This also appears to mean that lesser charges in the UK actually mean the main charge couldn't be proven, not that a plea was entered to a lesser charge in exchange for the main charge being dropped. But that's me speculating...
Not the sort of press coverage I'd like to wake up to if I were involved.
Sentencing Law & Policy reminds me that the jury trial is in decline in my new home state, as it is everywhere, see for instance George Fisher's Plea bargaining's triumph: a history of plea bargaining in America. How well known is this to the general public? People who pay attention obviously know.
Here is part of the article in the News Virginian, but read the whole thing:
Jury trials remain a favorite of American film and literature but not of the criminal-justice system, where their use long has been in decline here and across the country. The trend has accelerated in recent decades as tougher sentencing laws leave more defendants unwilling to assert a right found in Magna Carta and the U.S. Constitution and that is recognized by all states.
In the year that ended June 30, 2008, little more than 1 percent of felony convictions in Virginia courts were at the hands of jurors. Nearly 90 percent were the result of guilty pleas and the rest in trials before judges.
Guilty pleas help keep courts running efficiently, but as relatively fewer people perform one of the most serious of civic duties, experts believe public confidence in the criminal-justice system, if not justice itself, might suffer.
Josh Bowers, a professor of law at the University of Virginia, said, “We’re already at what would seem to be almost a bare minimum of jury trials for a criminal-justice system that recognizes a jury trial right.” It did not happen overnight.
Thirty years ago, Albert Alschuler, a law professor at the University of Chicago, complained in Time magazine that “here we have an elaborate jury trial system and only 10 percent of the accused get to use it.” “That’s like solving America’s transportation problems by giving 10 percent Cadillacs and making the rest go barefoot,” he said. Reached by telephone recently, Alschuler said “things are much worse” these days.
“Trials and, especially, sentencing proceedings have become ever more complicated, and legislatures have made many additions to the prosecutors’ ‘tool kit,’” he said. The jury trial rate has been cut in half across the country — even more so in Virginia — since Alschuler’s complaint of 1978....
According to the Virginia Criminal Sentencing Commission, in the year that ended June 30, 2008, juries were responsible for just 1.3 percent of 27,195 felony convictions in Virginia — the lowest percentage yet recorded by the commission. Nationally, of the more than 1 million felony convictions in 2004, 95 percent were resolved by guilty pleas, with the remaining 5 percent in judge or jury trials, according to the U.S. Bureau of Justice Statistics.
Bowers, Alschuler and others believe that tough sentencing laws passed by Congress and the states in the 1980s and 1990s in response to rising crime — and predictions of rising crime — are a factor contributing to the national decline in jury trials....
Virginia is one of only a handful of states where juries sentence in addition to determining guilt. Also, since 1994, juries here have been told about a defendant’s prior criminal record when deciding on a sentence. Unlike judges, juries are not informed of the sentencing guidelines and must sentence within the minimum and maximum terms that remain in the state code.
So in cases where the state law calls for a minimum sentence of five years, five years is the best a defendant can hope to get from a jury. If the defendant pleads guilty, however, a judge complying with the guideline can suspend four years of the five-year term. Also, because the judge, defendant and the prosecution must all agree to waive a jury trial, by threatening to demand a jury, prosecutors are in a better position to negotiate, or force guilty pleas.
In the first full fiscal year after the 1995 truth-in-sentencing reforms, jury convictions in Virginia were cut in half — from 4 percent of all felonies to 2 percent. The number has risen and fallen since, to the most recent level of 1.3 percent. And since 1995, jury sentences tend to be far stiffer than those from judges.
In a 2004 study of jury sentencing in Virginia and two other states, two professors at the Vanderbilt University School of Law confidentially surveyed judges, prosecutors and defense attorneys. They found that jury sentencing is supported overwhelmingly by Virginia prosecutors — and among some defense attorneys — because they believe it deters jury trials....
John Douglass, a former federal prosecutor and dean of the University of Richmond School of Law, said, “It’s ironic — jury sentencing in Virginia is suppressing the right to jury trial.” “The notion that your opportunity for a jury trial should come at the cost of a significantly higher sentence is troubling,” he said. “It seems odd that a jury can be used as a threat, rather than a right, or an opportunity.”...
Bowers said the trend toward fewer juries was going on before tougher modern sentencing and the use of guidelines. Long ago, he said, when there were far fewer procedural protections for defendants, there were far more jury trials. “It wasn’t uncommon for a court to hear 20 felony jury trials in a day in the 18th-century court.”...
The full jury trial of today, however, is expensive and time-consuming. Douglass said heavy caseloads make it difficult to try many cases. “So prosecutors and defense counsel are looking for an alternative, and it leads to plea bargaining,” he said.
Being innocent doesn't make a jury trial more likely:
"the innocent person is in all likelihood going to have a stronger defense and the prosecution is going to have a weaker case, and a wise prosecutor will calibrate plea bargains to account for the weakness of the case,” Bowers said.
With a weak case, a prosecutor might make a more generous offer to win a conviction. “So even the innocent defendant may end up taking a plea because it’s the rational thing to do,” Bowers said.
“The innocent person may decide to stand on principle and turn down a plea, but when that happens, the plea might just get a little sweeter and the person may end up pleading anyway,” he said.
As a result, Bowers said, “you have this perversity where the very cases that we would want to test in the crucible of trial may be the very cases that more frequently end up plea-bargaining out.”
Richmond Commonwealth’s Attorney Michael N. Herring agrees that for a defendant, “juries are obviously risky and very, very unpredictable. Every good lawyer I know has lost many cases he or she [thought they] couldn’t lose.”
On the other hand, Herring said, in some egregious cases, “if you have nothing to lose as a defendant,
Herring you are facing charges that carried a [stiff] minimum term at sentencing, then you have an absolute incentive to try your case by jury.”
Figures kept by the Virginia Criminal Sentencing Commission support Herring’s observation. In the most recent year for which figures are available, juries were responsible for just 0.5 percent of all drug and property crime convictions.
However, for crimes against people — murder, assault, rape, etc. — where the minimum punishments are stiffest, the jury conviction rate was 10 times higher, at 5 percent (though 5 percent is the lowest ever measured by the commission for crimes against people).
The taz reports on religions discrimination in employment in Germany:
Naime B. (26) hat an der Gießener Fachhochschule studiert, als Diplom-Ingenieur-Architektin abgeschlossen, ihre Praktika absolviert, im Beruf gearbeitet und sich online bei einem Architekturbüro im hessischen Friedberg beworben. Ihr Bewerbungsfoto zeigt sie fröhlich lächelnd. Sie trägt ein schwarzweißes Kopftuch mit Wellenlinien.
Die Absage kam prompt. Man suche "einen Mitarbeiter/in für die Bauleitung, nicht für die Planung" hieß es knapp. Und dann ausführlicher: "Außerdem kommt eine Mitarbeiterin mit islamistischer Grundeinstellung mit dem Symbol des Kopftuches als Unterdrückung der Frauen nicht in Frage. Das Kopftuch ist ein Symbol politisch gewollter Unterdrückung und kein Ausdruck persönlichen Glaubens (wie fälschlicherweise oft behauptet wird). Dies können wir in unserem Büro leider nicht akzeptieren."
Naime B. fühlte sich "schockiert, beleidigt und ungerechtfertigt angegriffen" und "in ihrer Würde zutiefst verletzt". Allein aus dem Kopftuch könne eben nicht auf ihre und die Grundhaltung anderer Kopftuchträgerinnen geschlossen werden. Sie holte sich Hilfe bei dem "Clearingprojekt: Zusammenleben mit Muslimen" beim Interkulturellen Rat in Darmstadt, erstattete Strafanzeige und klagte beim Arbeitsgericht auf Schadensersatz wegen Verstoßes gegen das Allgemeine Gleichstellungsgesetz (AGG) und Artikel 3 des Grundgesetzes. Sie forderte drei Monatsgehälter, insgesamt 9.000 Euro. Selbst möchte sie nicht öffentlich Stellung beziehen. Zu viel "Medienrummel" habe es in der Vergangenheit um Frauen gegeben, die das Tragen des Kopftuches verteidigen.
Torsten Jäger vom Interkulturellen Rat wird deutlicher. Immer wieder kämen Beschwerden ähnlicher Art. "Die Absage ist ein exemplarisches Zeichen dafür, dass wir ein Klima in Deutschland haben, in dem es als avantgardistisch gilt, das zu sagen, was andere heimlich denken." Dies sei, meint Jäger, vor allem der Debatte um das Kopftuchverbot in Schulen geschuldet. Dadurch seien Vorurteile befördert worden, dass das Kopftuch "per se ein Zeichen für Unfreiheit" und jede Trägerin "auch Islamistin" sei.
Die Absage sei "nur die Spitze des Eisberges". Junge Frauen mit Kopftuch, die die zur Integration immer wieder geforderte Bildung erworben hätten und nach Abitur und Studium ins Berufsleben wollten, hätten es sehr viel schwerer als andere. Immer häufiger seien derzeit auch Fälle von Diskriminierung bei der Wohnungssuche. Selbst Tischreservierungen in Restaurants seien "bei Augenschein" schon storniert worden.
Im Sommer scheiterte ein Gütetermin zwischen dem Friedberger Architekturbüro und Naime B. Die Firma entschuldigte sich und erklärte, sie habe keinesfalls diskriminieren wollen, sondern auch schon in der Vergangenheit "Mitarbeiter mit islamischem Glauben beschäftigt" und somit "ein normales Verhältnis zu anders Gläubigen". Die Bewerberin sei lediglich abgelehnt worden, weil sie nicht genug Berufserfahrung habe. Man könne sich aber auf einen Schadensersatz von 3.500 Euro einigen. Naime B. lehnte ab.
Ein neuer Termin soll Ende Oktober vor dem Arbeitsgericht Gießen stattfinden. Torsten Jäger ist optimistisch, dass zugunsten von Naime B. entschieden werde: "Es ist wichtig, dass jemand, der etwas sagt, was er hinterher am liebsten nicht gesagt hätte, merkt, dass das auch Geld kostet."
One scary part are the reader comments, especially for a left wing paper, running 10:1 against the woman, with lots of claims about the need to stand up for freedom of association and the right of firms to exclude people for wearing head scarfs. Some people, in my estimation quite a few in Germany currently, though it is hard to judge not having lived there for quite some time, don't seem to understand that this level of exclusion and harassment creates exactly the ghettoization of immigrants these people claim they oppose.
It would be nice to know more, but my sense is that the fraction of the population that is engaged in this active harassment of Muslims is creating serious problems that would otherwise be avoidable.
I don't get it. I can see that this would be fodder for high brow tabloid coverage, but why is there any underlying controversy? One could argue that in general some much sexual activity is now handled too aggressively by the US criminal justice system, but this is an old case, not consensual sex and involves flight from the justice system. In some ways this reminds me of the OJ Simpson case: yes, he did it, but the constituency supporting the perpetrator doesn't like or trust the US justice system. But people supporting Polanski don't seem to articulate that view, at least not that I've seen that argument made.
My own theory on why Polanski got nabbed now by the Swiss is that there was a side deal in the context of a general high level laying out of who wants what from whom between the US and Swiss justice systems during negotiations over the UBS tax evasion abetting matter.
Also, how is rape not an extraditable offense between the US and France, or something that could not be tried in France? If Polanski had killed instead of raped Samantha Geimer would he be in the same legal position?
The Daily Mail summarizes the process, accurately as far as I can tell, thus:
The director was initially charged with rape by use of drugs, perversion, sodomy, lewd and lascivious act upon a child under 14, and furnishing a controlled substance to a minor.
These charges were dismissed under the terms of a plea bargain [okay, not actually a plea bargain, since no sentence was agreed, instead this was a plea agreement on the charge], and he admitted a lesser charge of engaging in unlawful sexual intercourse with a minor.
An LA court ordered Polanski to report to a state prison for a ninety-day psychiatric evaluation. He eventually reported to Chino State Prison for the evaluation period, and was released after 42 days.
There was a widely held expectation that Polanski would get probation at the subsequent sentencing hearing, but after an alleged conversation with LA Deputy District Attorney David Wells, the judge 'suggested to Polanski's attorneys that he would send the director to prison and order him deported'.
With the threat of imprisonment hanging over him, Polanski fled the United States. He first went to London on February 1, 1978, where he maintained home.A day later he traveled on to his native France, avoiding the risk of extradition to the US by Britain. Consistent with its extradition treaty with the United States, France can refuse to extradite its own citizens.
So the key issue is what does 'France can refuse to extradite its own citizen' mean in this context? What is the process and what are the standards by which the French judicial system decides these matters? And given this process and these standards, why did Polanski not get extradited in the past 30 years? Conversely, when do US authorities give up on extradition requests and try to have foreign justice systems try crimes in the US? Does this ever happen? I only know of German authorities trying US citizens under US criminal law but German criminal procedure (in some sort of mixed procedure, with US prosecutors) for death penalty eligible crimes committed by US military personnel on US bases in Germany, who then can avoid extradition since...well not quite clear, since I think the US will promise not to seek the death penalty if extradition occurs.
Finally, what is the French law for the facts of Polanski's plea on sexual intercourse with a 13 year old? Ah, the age of consent in France is 15, with sexual intercourse with persons under 15 punishable with up to 5 years imprisonment. Additionally, there was a movement in France in the late 1970s to abolish the age of consent. Indeed, in 1977, the year of Polanski's flight to France, quite a few famous French intellectuals signed a petition to this effect. All the 'usual suspects' (Michel Foucault, Jacques Derrida, Louis Althusser, Jean-Paul Sartre, Simone de Beauvoir, André Glucksmann, Roland Barthes, Guy Hocquenghem) and a few more like Kouchner or Lang. Part of the old style gay liberation movement and the aftermath of the 1960s culture wars. Luckily, gay liberation has moved on to marriage equality and raising one's own kids and not molesting other people's kids, which is progress. Not that this trajectory is unique to gays...see Polanski's life. So I can see that the French state may not have felt like extraditing Polanski until this issue played out. And then the French justice system got locked into its position. But that still doesn't explain how Polanski could hang out is Switzerland.
On the other hand, Polanski's support in France and Poland seems quite narrowly based and is fading. So this may mostly be about history now.
Update #2: The Guardian reports France is considering forcing some sex offenders to undergo chemical castration. Not 1977 anymore in France either.
Update #3: Jody comments:
It seems like Polanski got away with it back in the 1970s (a) because France wasn't inclined to do anything that the US wanted it to do, especially around the extradition question; (b) because it was the 1970s, and Angelica Huston was probably not the only person who wanted to believe "hey, she looked like she could be old enough" was a valid defense; and (c) because blaming the rape victim is still pretty typical, especially when the assailant is a Famous Movie Director. I've noticed that no real media outlets in the States are doing anything but condemning the petition and the outrage. They're all saying, "this guy raped a 13-year old. It's about time." I don't think this was a federal-level agreement between the US and Switzerland. It's my impression that the LA D.A. has been trying to get Polanski for about a year now, ever since he had the audacity to ask for the case to be dismissed without actually coming back himself.
I understand that the reporting is that the extradition is due to efforts by the LA D.A. I do suspect additional involvement by Justice Department and potentially Treasury officials as well, in the context of negotiating the UBS matter. Just speculation, but federal officials hold many more cards than the LA D.A. when dealing with the Swiss.
snark via Kaus:
The NYT has an article on incentives and the behavior of mortgage servicers which reminds me that I ought to know more about this topic. One question is where the existing contracting arrangements come from and how they can be modified or renegotiated.
Even when borrowers stop paying, mortgage companies that service the loans collect fees out of the proceeds when homes are ultimately sold in foreclosure. So the longer borrowers remain delinquent, the greater the opportunities for these mortgage companies to extract revenue — fees for insurance, appraisals, title searches and legal services.
Legal experts say the opportunities for additional revenue in delinquency are considerable, confronting mortgage companies with a conflict between their own financial interest in collecting fees and their responsibility to recoup money for investors who own most mortgages.
When borrowers fall behind, mortgage companies typically collect late fees reaching 6 percent of the monthly payments.
“For many subprime servicers, late fees alone constitute a significant fraction of their total income and profit,” said Diane E. Thompson, a lawyer for the National Consumer Law Center, in testimony to the Senate Banking Committee this month. “Servicers thus have an incentive to push homeowners into late payments and keep them there: if the loan pays late, the servicer is more likely to profit.” ...
Mortgage companies not only gain this extra business through their subsidiaries, but also collect reimbursement for the payments when the houses are sold.
The investors who own bad mortgages accept whatever is left. Investors typically do not notice how much they give up to the servicers, because fees are embedded in complex sales.
“It’s under the radar,” Ms. Golant said.
Ultimately, the benefits of delinquency erode incentives for mortgage companies to dispose of troubled loans quickly, say experts, allowing distressed houses to decay and fall in value — a fact of little interest to the servicer.
“At the end of the day, it doesn’t matter what the house sells for, because they don’t take that loss,” said Ms. Golant. “Meanwhile, they are collecting all these fees.”