New Article: When and How (If at All) Does Law Constrain Official Action?

From SSRN, When and How (If at All) Does Law Constrain Official Action? (H/T Legal Theory Blog):

Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This paper, presented as the John A. Sibley Lecture at the University of Georgia School of Law, draws on the jurisprudential and philosophical literature to frame the question of obedience to law, and then seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk about official obligation to the law, in fact officials rarely obey the law just because it is the law, and are rarely politically punished for engaging in sanction-free illegal actions when their constituents approve their first-order substantive decisions. For official behavior, therefore, there may be considerably less internalization of law than is commonly supposed. And if this hypothesis turns out to be true, the implications for public law may be considerable. Moreover, if sanction-free internalization of law is less common than many commentators believe, it would be appropriate to give renewed attention to the role of sanctions and coercion not only in securing compliance with law, but also in understanding the nature of law itself.

Why do people follow laws? Why do people follow some laws and not others? Why do I have no problem routinely breaking the speed limit and jaywalking (maybe because I’m from NY) but am morally repulsed by hurting another or infringing on someone elses property rights. Take a look at this article. Professor Solum gave it a Highly recommended. Download it while its hot!

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Selective Originalism. Why do Originalists Pick and Choose When to be Original?

Professor Balkin makes a fantastic point. If Scalia were truly an originalist, he would not be able to adhere to Bolling v. Sharpe and Loving v. Virginia.

I’m sure if someone ever cornered Nino, he would say something about stare decisis, and following these precedents. I once asked him a similar question about how he affirms all of the Criminal Procedure cases from the Warren Court which are patently unoriginal, and he muttered something like “Nah, its water under the bridge.”

But when is it water under the bridge? And shouldn’t stare decisis be weak for Constitutional Law. Scalia has called himself a “faint hearted” Originalist. What exactly does that mean?

The normative appeal (to me at least) of originalism is an an attempt at objectivism. That is, making the judicial resolution as much as possible about objective facts (history) and as little as possible about a judge’s personal predilections. Deciding when to be an originalist seems to give a judge a lot of discretion. This is similar to finding when a statute is ambiguous, or if a previous opinion is holding or dicta, a topic I have written about here.

This is a topic I’ve been thinking about for some time.  I call it Selective Originalism. It is similar to Selective Amnesia. Originalists pick and choose when to forget about the history behind the Constitution with respect to certain issue and cling to stare decisis (e.g., Brown, Bolling, and Loving) but are dogmatically clingy to it with respect to other areas and ignore stare decisis (e.g., Scalia on Roe/Casey)

Further, why do originalists seek to be originalists in some areas (guns, federalism, confrontation clause), but not in others (criminal procedure). Is this Hypocrisy? Water under the bridge?

Further, if Bolling v. Sharpe was wrong, Aderand would be wrong.

Perhaps one way to reconcile this comports with a Presumption of Liberty. When an unoriginalist opinion promotes liberty (the exclusionary rule, the right to keep and bear arms, confrontation clause rights), it is OK to ignore the history, and just say stare decisis. But what happens when an unoriginalist opinion infringes on liberty? More to come.

The Internet in Five Years, According to Google CEO Eric Schmidt. Omniveillance Still Looming on the Horizon

A cool post from ReadWriteWeb, titled Google’s Eric Schmidt on What the Web Will Look Like in 5 Years :

  • Five years from now the internet will be dominated by Chinese-language content.
  • Today’s teenagers are the model of how the web will work in five years – they jump from app to app to app seamlessly.
  • Five years is a factor of ten in Moore’s Law, meaning that computers will be capable of far more by that time than they are today.
  • Within five years there will be broadband well above 100MB in performance – and distribution distinctions between TV, radio and the web will go away.
  • “We’re starting to make significant money off of Youtube”, content will move towards more video.
  • “Real time information is just as valuable as all the other information, we want it included in our search results.”
  • There are many companies beyond Twitter and Facebook doing real time.
  • “We can index real-time info now – but how do we rank it?”
  • It’s because of this fundamental shift towards user-generated information that people will listen more to other people than to traditional sources. Learning how to rank that “is the great challenge of the age.” Schmidt believes Google can solve that problem.

Back in 2008, in my Omniveillance article, I discussed Mr. Schmidt’s predictions of where Google will be in the future.

In an interview conducted by the Financial Times, Google CEO Eric Schmidt admitted the company’s future goal is to organize people’s daily lives.139 Specifically, Schmidt augured that one day “users [will] . . . be able to ask the question such as ‘What shall I do tomorrow?’ and ‘What job shall I take?’ ” and Google would be able to answer those questions.140 Udi Manber, Google’s Vice President of Engineering in charge of Google Search, reaffirmed this sentiment, and posited that Google has “to understand as much as we can user intent and give [users] the answer they need.”141 Mr. Schmidt acknowledged that the primary obstacle to this goal is not the technology, but the lack of information Google possesses about people.142

Talking to journalists in London, Mr. Schmidt stated, “We cannot even answer the most basic questions because we don’t know enough about you. That is the most important aspect of

Google’s expansion.”143 Mr. Schmidt acknowledged that Google is still in the early stages of gathering the information it has, and that algorithms can only be improved by better personalization.144 What Mr. Schmidt did not mention was how this personalization, that is, the collection of personal information, would take place. Google’s experiment in Nanaimo, British

Columbia shows how it can organize the aggregation of this data from the real world. If Google really plans on telling a person what to do or which job to take, information must be gathered from sources beyond those on the Internet-namely the real world.145 And that’s where Google Street View can come in.

The future of Omniveillance revolves around Google incorporating data from the real world into their massive search engine. While real-time social networking sites, such as Twitter and Facebook are effective means to assemble this information, monitoring public places is perhaps the most effective means. See my previous post discussing how researchers at Georgia Tech are incorporating real-time video into Google Street View Maps.

The Specter of Omniveillance is still looming on the horizon.

Check out the full interview here:

See also. County of Los Angeles votes to utilize Google Web services for City technology support.

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Balkin’s Right, Scalia’s Wrong. Bolling v Sharpe and Loving v VA bigger originalist quandry than Brown.

On Monday Justice Breyer and Justice Scalia held a discussion at the University. Check out my liveblog coverage here.

There was a bit of a kerfuffle when some journalist reported that Scalia would have dissented in Brown. This was false.

But Professor Balkin, in a very insightful post, posits that the greater conflict to originalist doctrine is not Brown, but Bolling v. Sharpe and Loving v. Virginia. Read the entire post, but here are some of the highlights:

Now that it is clear that Justice Scalia did not say that he would have dissented from Brown v. Board of Education, we can move on to the more genuinely interesting questions about Justice Scalia’s views on race, originalism, and the Constitution.

Justice Scalia is well known for being deeply committed to the colorblindness principle (except, of course, where the rights of prisoners are involved). As a result he strongly associates himself with Justice Harlan’s dissent in Plessy v. Ferguson, announcing that “Our Constitution is color-blind” and arguing that separate but equal facilities are unconstitutional (except, of course, prisons).

But even if Justice Scalia’s methodology gets him to Brown v. Board of Education, it does not really justify much of modern equal protection law, including positions for which he has been the most ardent proponent.

First, although it’s clear that Justice Scalia would not have upheld segregated schools in the states, it’s not clear that he would be able to strike down segregated schools in the District of Columbia. In particular, we don’t have a good sense of what Justice Scalia thinks of the originalist case for Bolling v. Sharpe, which held that the Due Process Clause of the Fifth Amendment, ratified in 1791, prohibits racial classifications by the federal government. Consider this: in 1791 black people were held in slavery. It’s hard to argue that this clause, interpreted according to the expectations of the late eighteenth century generation that framed it, prevents the federal government from engaging in racial discrimination. Moreover, Justice Scalia has long been an opponent of reading the Due Process Clause to have substantive content. If so, why isn’t Bolling v. Sharpe an impermissible form of substantive due process, as impermissible as, say, Roe v. Wade? If Justice Scalia believes that Bolling is correct, it can’t be because of his originalist views. Rather, it is, as he would say, a case where courts just made new rights up.

Even if, under Justice Scalia’s methodology, Brown is correctly decided, it’s hard to hold that Loving is. The generation that ratified the Fourteenth Amendment expected that laws banning interracial marriage and interracial sex would be constitutional.

Bolling v. Sharpe and Loving v. Virginia pose the real problems for Justice Scalia’s methodology when it comes to race. In public settings, people should stop asking him about Brown v. Board of Education. There are plenty of other difficulties with his theory of interpretation that he has yet to work out.

I have pondered Bolling and Loving at great length. There is no equal protection clause in the 5th Amendment. When I read Bolling in class, I remember raising my hand and asking where equal protection clause in the 5th amendment was. Crickets.

How can the federal government possibly be mandated to enforce equal protection under an originalist jurisprudence. Further, how can miscegenation ban in Bolling possibly be unconstitutional if it was a common at the time of Reconstruction. Professor McConnell’s arguments,justifying these cases from an Originalist perspective, are not persuasive to me. This is a gaping hole in Scalia’s jurisprudence. Balkin’s right. Scalia’s wrong.

Now, I think Balkin’s Constitution in 2020 Philosophy has more holes than a piece of swiss cheese. So on the aggregate, I’m more comfortable with Scalia’s philosophy which has a couple of big holes, than accepting Balkin’s philosophy which is mostly results oriented jurisprudence towards establishing a progressive society, as he sees fit.

No philosophy is perfect. I adopt the one that makes the most sense. While Originalism may be a 80% solution, the Constitution in 2020 maybe gets me 20%. I’ll take 80 or 20 any day.

IJ Files Suit Against AG to put an end to a ban on offering compensation to bone marrow donors.

The Institute for Justice filed the first ever suit challenging the ban of the National Organ Transplant Act (NOTA) of 1984. Check it out here.

The National Organ Transplant Act (NOTA) of 1984 treats compensating marrow donors as though it were black-market organ sales.  Under NOTA, giving a college student a scholarship or a new homeowner a mortgage payment for donating marrow could land everyone—doctors, nurses, donors and patients—in federal prison for up to five years.

NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells—such as blood—for which compensated donation is legal.  That makes no sense because bone marrow, unlike organs such as kidneys, replenishes itself in just a few weeks after it is donated, leaving the donor whole once again.  The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Jeff Rowes, a senior attorney with the Institute for Justice, said, “The only thing the bone marrow provision of the National Organ Transplant Act appears to accomplish is unnecessary deaths.  A victory in this case will not only give hope to thousands facing deadly diseases, but also reaffirm bedrock principles about constitutional protection for individual liberty.”

Chip Mellor, president and general counsel of the Institute for Justice said, “Bad things happen when the federal government exceeds its constitutional authority.  In this case, people actually die.  The Institute for Justice intends to stop that and to restore constitutional constraints that prohibit arbitrary limits on individual liberty.”

This is the first time NOTA has ever been the subject of a constitutional challenge.

As usual IJ finds a fantastic, and sympathetic plaintiff:

Every year, 1,000 Americans die because they cannot find a matching bone marrow donor.  Minorities are hit especially hard.  Common sense suggests that offering modest incentives to attract more bone marrow donors would be worth pursuing, but federal law makes that a felony punishable by up to five years in prison.

Doreen Flynn, a single mother of five children from Lewiston, Maine, joined with the Institute for Justice in filing suit.  She is a compelling example of the courage and determination parents must exhibit when their children are struck with a deadly blood disease.  Three of Doreen’s daughters have Fanconi anemia, a serious genetic disorder whose sufferers often need a bone marrow transplant in their teens.

Flynn said, “Saving lives through bone marrow donations starts with donors.  Without them, the only outcome for those in need is death.  We should do everything reasonable within our powers to encourage people to donate.  The government must recognize the reality of those facts and stop standing in the way.”

Joining Flynn in the lawsuit is Dr. John Wagner, an internationally recognized expert in marrow cell transplantation at the University of Minnesota.  He has treated thousands of patients in need of marrow transplants, and he has been forced to watch hundreds of them die after they were unable to find a matching donor.  He believes it is time to try the most promising strategy for bringing in more donors—providing potential donors with an incentive to donate.

Note. For purposes of full disclosure, I am an IJ fan and have attended several of their law student conferences.

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Chicago Shrugged: Chicago to give bounties to turn in tax-cheating neighbors; # Of Women Buying Guns Up

Things keep getting worse and worse for Chicago. First, they lost Richard Epstein. They, they lost the Olympics. And because bad things come in threes, they will lose McDonald v. Chicago!

Today, NBC Chicago reports that Chicago is planning a new program that would make the Stasi proud. Rats! City to Pay for Informing on Tax Cheats

Chicago and Cook County residents aren’t the only ones about to get shocking tax news; the city is debuting a “tax whistle-blower” plan that could turn neighbor against neighbor in Chicago’s business community.

The folks at city hall will pay cash bounties to informants who turn in business tax cheats around the city. The reward would amount to some sort of percentage of the tax money that the city recovers.

“It’s just another way of bringing people into compliance,” Revenue Department spokesman Ed Walsh told the Sun-Times.

“It would probably be … a business knowing that a competitor is not remitting a tax. An employee [of the tax-dodging business] could know that, too. Typically, you need to provide some type of incentive.”

Laffer Curve. When you increase taxes, people find ways to evade taxes. When you crack down on people not paying taxes, taxpayers will exit. They may not go all the way to Galt’s Gulch, but perhaps they will visit a city more hospitable to liberty.

In other news, in Chicago the number of women purchasing hand guns is on the rise:

Local gun shop owners say they’re seeing an increase in the number of women shoppers right now. The reasons, they say, are many, including the downturn in the economy and violence on the street. According to the National Shooting Sports Foundation, about 48 percent of people taking their first handgun seminars this year happen to be women. CBS 2’s Pamela Jones reports on the growing trend.
“It’s very dangerous out there. I mean, there’s people getting robbed here and there,” said Josie Santiago. “It’s just for protection.”

Santiago says she’s always thinking about the danger lurking on the streets of the Chicago area. It’s a big reason why she visited Illinois Gun Works in Elmwood Park. Not only did she shop for a new weapon, but she also wanted to find out about taking firearms training from the pros.  “It’s better that you know how to use it,” Santiago said. “You know, take the class, take the course, protect yourself.”\

And soon, the right to keep and bear arms in Illinois will be Constitutionally protected.

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Reflections on One Month of JoshBlogs: 187 Posts, 207 Comments, and 34,000 Hits Later, I’m Bloggled!

I launched this blog to little fanfare on September 28, 2009. 1 month later, I’m bloggled (my dad made up that word. Bloggled is defined as a blog boggling your mind).

I’ve been linked to by Instapundit twice (here and here), by the Volokh Conspiracy twice (here and here), and Above The Law thrice (here and here and here).

I feel blessed that people have enjoyed my blog enough to read it, link to it, and comment on it.

I promise that I will keep up the blogging, and hopefully my next month anniversary will be even more successful.

And while Galt’s Gulch remains elusive, I consider this blog my personal virtual Galt’s Gulch. Who is John Galt?

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