Archive for May, 2008
Kerr Defends the Third-Party Doctrine
Orin Kerr is a law professor at George Washington University and a blogger on the popular Volokh Conspiracy. He is a thoughtful, open-minded legal scholar, but I don’t think it’s unfair to say that he reliably sides with law enforcement on Fourth Amendment issues.
He recently posted a draft article defending the third-party doctrine, which is an interpretation of the Fourth Amendment holding that a person sharing information with a third party cannot make a Fourth Amendment claim to protection of that information. Use an ISP to transmit your email? No Fourth Amendment protection for its contents. Have a bank account? No Fourth Amendment protection for your banking records. Etc.
He treats as similar two issues that I see as separate: revelations gleaned from informants/agents and from business records. I have always thought of the third-party doctrine as being about business records. My remarks here apply to that area only.
I think the third-party doctrine was never right, and that it grows more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The third-party doctrine exempts law enforcement from the Fourth Amendment’s reasonableness and warrant requirements when it looks at these records.
It’s wonderfully contrarian to run against the grain and defend the third-party doctrine, which has plenty of detractors, but sometimes contrarians can be wrong. I think Professor Kerr is, and here I’ll briefly lay out a few of the fundamental differences I have with his paper—all toward the end of perfecting it before it’s published in the Michigan Law Review next year, of course!
Texas Supreme Court: Return the Children
Yesterday, the Supreme Court of Texas ruled that Child Protective Services (CPS) abused its discretion by seizing 468 children from the Fundamentalist Church of Latter Day Saints ranch in Eldorado. Eugene Volokh has a roundup of the legal analysis.
I wrote about this case a few days ago at NRO, but space limitations kept me from going into more detail about how the women and children were treated while in state custody. For those who have not followed this matter closely, the children were seized by CPS but the mothers were ”permitted” to remain with their children on the condition that they comply with all CPS rules and commands.
CPS invited some mental health workers to the various shelters to help care for the hundreds of children. The mental health workers were disturbed by what they saw of CPS’s treatment of the women and children, and their written reports corroborate the bitter complaints of the FLDS mothers. I don’t think the news media has given this aspect of the story the attention it deserves — so here are some excerpts from the various reports that have been made public:
- “Women were constantly lied to about where their children [were] and when they could see their lawyers and about when they would be reunited with their children.”
- “Constant reminders that the adult women were only guests and that they were not in charge of the children and what CPS did to them. [The children] belonged to CPS now and they could talk, interrogate, separate and treat them any way [CPS] wanted. This included physical exams and x-rays without [parental] supervision.”
- “I sat with Audrey while three of her children were removed for six hours of questioning.”
- “The children arrived healthy and happy and left sick and crying.”
- Read the rest of this post »
Patent Failure
This week I’m filling in for libertarian blogger Megan McArdle at the Atlantic. Yesterday I finished a three part discussion of Patent Failure, an excellent new book on the patent system by James Besson and Michael Meurer.
The use of the phrase “intellectual property” to describe patents and copyrights has become so commonplace that we barely give it a second thought. I think that’s unfortunate, because the question of whether patents can sensibly be considered a kind of property is an empirical question, not merely a matter of semantics or tradition.
In my first post, I discuss the key characteristics of a patents system — clear boundaries and positive incentives for innovation, and argue that the patent system tends to fulfill those characteristics with respect to the chemical and pharmaceutical industry. In my second post, I shift my attention to the rest of the patent system, and show evidence from Bessen and Meurer that the patent system seems to be creating dis-incentives for innovation in industries other than chemicals and pharmaceuticals. Finally, in my third post, I suggest that the problem is a lack of clear boundaries, and discuss some of the reform proposals Bessen and Meurer offer to fix the patent system’s problems.
The best thing about the book, from my perspective, is that it takes the idea of patents as property seriously and then tries to bring some empirical evidence to bear on whether the patent system behaves the way we expect a property rights system to behave. Because of the analytical clarity of their approach, it gives us a meaningful yardstick with which to judge potential reforms.
Alaska Will Not Implement REAL ID
Passed into law Wednesday:
Section 1. AS 44.99 is amended by adding a new section to article 1 to read:
4 Sec. 44.99.040. Limitation on certain state expenditures. A state agency may not expend funds solely for the purpose of implementing or aiding in the implementation of the requirements of the federal Real ID Act of 2005 (P.L. 109-13, Division B).
High Wire
I recently received a complimentary copy of Peter Gosselin’s new book, High Wire: The Precarious Financial Lives of American Families. Mr. Gosselin is the national economics correspondent for the Los Angeles Times. Here is an excerpt from the book jacket:
The recent downturn seems to have brought an end to some of the strongest, smoothest growth in American history–a performance that economists found so sweet they dubbed it the “Great Moderation.” Yet even in boom times, the economy was caught in a cross-current. … [T]he cross-current was neither the product of a misapprehension nor the nation’s normal ups and downs. Instead, it was the result of a quarter-century long conversion of the nation’s economy from one of checks and balances to barely tempered free markets.
Interesting. Query: What baseline (pdf) is Mr. Gosselin using?
“Dog Bites Man” Passes for Legal News These Days
“The Supreme Court this week made big news because it hardly changed the law at all,” reports The Washington Post. “The court broke no new ground in deciding that workers are protected from retaliation for complaining about discrimination, just as they are protected from discrimination itself.” The story goes on to quote part of this press release that I wrote yesterday:
The Gómez-Pérez and Humphries rulings reinforce what should be readily apparent to objective Court-watchers: The Roberts Court is neither necessarily “pro-business” nor “conservative.” Instead, the Court evaluates the legal merits of each case and rules accordingly. Even where the Chief Justice disagreed with his colleagues (and notably with an opinion written by Justice Alito), in the Gómez-Pérez case, the disagreement was a technical one over statutory language and structure — and not anything that involves judicial philosophy or competing theories of constitutional interpretation. The most interesting thing to note from these cases is the difference in the justices’ views of stare decisis, the principle that the Court places heavy weight on its own precedent. Whereas Chief Justice Roberts and Justice Alito (and perhaps others) no doubt disagreed with the precedent upon which the Humphries decision relied, they went along with Justice Breyer’s reasoning that such disagreement over statutory interpretation does not justify overturning precedent. Justices Scalia and Thomas, on the other hand, consider that the risk to legal stability from overturning precedent to be less than the harm from perpetuating the earlier error. Whatever the significance of this difference of opinion, it is not an ideological dispute.
Perhaps more importantly, as I (and apparently others) said to this reporter over the phone, Roberts and Alito are likely to be more accommodating of incorrect but established precedent when they pertain to statutory interpretation rather than constitutional rights. This is because Congress can always itself “overrule” an erroneous body of statutory construction by passing a new law — but of course the Court has the final word on constitutional issues (barring a constitutional amendment).
More generally, though, the above analysis, relating as it does to technical statutory construction that only reinforces existing law, would not normally be front-page (or, in this case, page A2) news. The nature of the cases to which the Roberts Court grants review, however — more technical, business issues instead of red-meat “culture war” stuff — suggests that we could be in for more “dog bites man” stories in future.
The Global Flat Tax Revolution
There’s good news and bad news in the world of tax policy. The good news is that a growing number of nations now have flat tax systems instead of so-called progressive tax schemes that punish people for contributing more to economic growth. The bad news is that the United States is conspicuously absent on the list of flat-tax jurisdictions. Defenders of the internal revenue code often argue that a flat tax is an impractical idea, but this new video (narrated by yours truly) demonstrates that the flat tax is working very well and spreading rapidly as nations compete to offer more attractive tax policy to the world’s investors and entrepreneurs.
One small correction is already necessary. The video states that there are 24 flat tax jurisdictions, but it has recently been shown that Trinidad & Tobago is now a member of the flat tax club. Hopefully, the list will grow rapidly and the video will quickly be outdated.
Surprise! Stadium Predictions Flawed
The Washington Examiner reports:
Attendance at Nationals Park has fallen more than a quarter short of a consultant’s projections for the stadium’s inaugural year, cutting into the revenue needed to pay the ballpark bonds and spurring a D.C. Council member to demand the city’s money back.
The District’s ability to pay down the debt on the publicly financed ballpark depends in part on the number of people who show up to the games, David Catania, independent at-large, wrote in a letter Tuesday to Chief Financial Officer Natwar Gandhi.
A study was commissioned in 2005 by Gandhi’s office. Written by Los Angeles-based Economics Research Associates, the report predicted attendance at the 41,000-seat ballpark would average 39,130 in year one, dropping to 32,737 in year four.
But paid attendance through 28 games has averaged only 29,141, Catania said, 26 percent lower than the consultant’s estimates. The Nationals are drawing the 15th-best crowd in baseball, according to ESPN, with a team that is in last place in the National League East and a 22-31 record as of Wednesday.
“It appears now,” Catania wrote, “that ERA may have seriously overestimated ticket sales, which represents a major portion of stadium-related revenues.”
Gandhi says it doesn’t matter, the bonds can be paid off with attendance as low as 10,000 per game. Which raises the question: if it’s that easy to pay for the stadium, why didn’t the multi-millionaire team owners agree to pay for it themselves?
So Much for the Past Seven and a Half Years
President Bush told Neil Cavuto of Fox News on Friday, “Fiscal conservatism is one of my defining issues for the remaining months.”
Broad-Minded Failure
Mark Lampkin, Executive Director of ED in ’08, about which I wrote on National Review Online last week, has responded to my piece with a letter to the editor. Apparently, my explanation for why reform efforts within the current system are largely futile, and fundamentally altering the system is the key, was “narrow-minded.” It makes one wonder what’s so broad minded about leaving in place the hidebound, nearly reform-proof government monopoly we currently have, but let’s get to some specifics in Lampkin’s letter.
Lampkin begins with this, which is really the crux of our debate:
McCluskey’s arguments underestimate the severity and urgency of our education crisis and naively bypass the difficult political terrain surrounding education reform. We agree that the system is broken, but we disagree with his suggestion that we should forestall desperately needed reform of the current system.
Now, I don’t think I underestimate the severity of our education problems—I assure you that the day I start saying our system isn’t a shambles is the last day you’ll see me writing on this blog—though I do think Lampkin and Co. tend to overhype national economic threats and education’s ability to negate them. Our real disagreement is on the ability of proposed reforms of the current system to do real, lasting good.
Lampkin seems to assume that ED in ‘08’s proposed reforms will somehow be alive, kicking, and transforming our schools tomorrow if we’ll only hearken back to Nike’s old slogan and “just do it,” while choice and competition are on a much longer timeline:
Choice and competition are very important ingredients in any effort to improve our schools, but we also need a more immediate response to implement a realistic and achievable set of solutions.
It sounds funny to use terms like “immediate” and “realistic” regarding an education system where everyone seems to have a five-year plan that is replaced every third year with someone else’s five-year plan, and in which the No Child Left Behind Act has a twelve-year, full-proficiency timeline almost no one thinks is realistic. It sounds funny, because it is funny. In fact, it might be crazy: Talking about “immediate,” meaningful changes in hugely bureaucratic, politicized, government-run public schooling, is about as grounded in reality as my assuming I’ll wake up tomorrow morning with my male-pattern baldness transformed into rocker-pattern abundance.
Look at this in the context of ED in ‘08’s big goals.
Today, In the Role of David Brooks, Mike Huckabee
A few weeks back, David Brooks was telling George Packer that philosophies of limited government were “politically unpopular and fundamentally un-American.” Now we have Mike Huckabee telling the Huffington Post the same thing:
The greatest threat to classic Republicanism is not liberalism; it’s this new brand of libertarianism, which is social liberalism and economic conservatism, but it’s a heartless, callous, soulless type of economic conservatism because it says “look, we want to cut taxes and eliminate government. If it means that elderly people don’t get their Medicare drugs, so be it. If it means little kids go without education and healthcare, so be it.” Well, that might be a quote pure economic conservative message, but it’s not an American message. It doesn’t fly. People aren’t going to buy that, because that’s not the way we are as a people. That’s not historic Republicanism. Historic Republicanism does not hate government; it’s just there to be as little of it as there can be. But they also recognize that government has to be paid for.
If you have a breakdown in the social structure of a community, it’s going to result in a more costly government … police on the streets, prison beds, court costs, alcohol abuse centers, domestic violence shelters, all are very expensive. What’s the answer to that? Cut them out? Well, the libertarians say “yes, we shouldn’t be funding that stuff.” But what you’ve done then is exacerbate a serious problem in your community. You can take the cops off the streets and just quit funding prison beds. Are your neighborhoods safer? Is it a better place to live? The net result is you have now a bigger problem than you had before.
First, there’s nothing “new” about libertarianism, although it appears someone’s just alerted Mike Huckabee to the phenomenon. Second, this business of the “un-Americanism” of libertarianism is ahistorical, although not particularly surprising coming from a Know Nothing demagogue like Mike Huckabee. Someday, advertising one’s own ignorance about the world won’t be considered a mark in one’s favor by conservatives. Until then, Mike Huckabee.
The E-Verify Debate as it Stands in Kansas
Here’s a good article in the Wichita Eagle on the debate over E-Verify, with particular reference to the state of Kansas, where the legislature recently considered requiring employers to use this system for a federal background check on all new hires.
My paper, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration,” is here.
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