But will they go to Hell?

The Minneapolis Star Tribune reports that the Minnesota Senate has passed a bill legalizing same-sex civil marriage. As we noted on Friday, the Minnesota House of Representatives has also passed the bill.

There They Go Again

News broke last week that the IRS targeted Tea Party groups for special investigation prior to the last presidential election. The IRS has apologized, initially blaming overzealous "low-level employees" (aren't they all?) for the program. Although subsequent reports have revealed that the IRS higher-ups have known long about the program, I would never doubt the zeal of low-level IRS employees. For two great examples of the great things they can accomplish when they put their minds to it, see this post: "Dumpster-diving, movie-watching, newspaper-reading, relentless ... IRS agents".

Is Minnesota creating a new class of bigots?

The Minnesota House of Representatives passed a bill yesterday that allows same-sex couples the right to civil marriage.  The bill now goes to the Minnesota Senate. The St. Paul Pioneer Press article on the passage is here.  The article contains a statement from Minnesotans for Marriage. The group is not really aptly named because the only type of marriage they are for is heterosexual marriage. The statement is intended to encourage the Minnesota Senate to block the bill.

Can The Liberator Be Stopped?

Yesterday I linked to a Farhood Manjoo piece in Slate about the Texas law student to came out with a 3D-printed gun ("the Liberator"). Mr. Manjoo's take is that, even if you're the kind of person who might worry about this, you shouldn't because government will not allow it to happen:

Even non-repressive regimes can impose harsh penalties to limit the spread of certain information. The United States couldn’t stop WikiLeaks from distributing secret diplomatic cables, but it did manage to strike a terrible blow to the group when it cut off its funding sources. In the same way, by imposing strict penalties for the distribution and possession of child pornography, Western governments have severely limited its spread online.

The rise of file-sharing seems to support the 3-D gun movement’s claims—people share movies and songs illegally online, and no government has been able to stop them. But note that doing so isn’t completely safe; if the authorities set their mind to it, they can bankrupt you for sharing songs online. Countries where guns are already strictly curbed could impose similarly harsh measures against the distribution of plans for 3-D guns—and if they enforce them strictly, they might well limit their availability.

To the extend Mr. Manjoo is basing these arguments on U.S. law, the analogies to crackdowns on pirated music / movies and child pornography are way off-base.

First, the analogy to piracy fails because there will be no copyright issue. Mr. Wilson and his kind will be distributing these plans, which are their own intellectual property, freely and without restriction. It is only copyright law that prevents distribution of movies and music, and it is only copyright that allows the government to enforce the standards Mr. Manjoo mentions. Given that there will be no copyright on these gun-printing blueprints, no one will have the legal right to prevent their distribution. Congress would need to pass a law to make such plans illegal, but that law would almost certainly be unconstitutional under the 1st Amendment, the 2nd Amendment, or both.

Second, the child porn analogy fails for a similar reason. Laws preventing dissemination of child porn are allowed on a very narrow exception to the First Amendment, and there is no reason to believe that dissemination of these gun-plans would fit any exception.

That is not to say the U.S. government is without recourse. In fact, it's already taking action. The U.S. State Department wrote Mr. Wilson a letter demanding that he take the plans down from his website on the theory that they may violate export regulations under certain arms control treaties. Mr. Wilson has complied with the request pending the State Department's review, although he believes that the regulations do not apply to his non-profit enterprise. This also raises issues whether the government can regulate anything published on a website as an "export" and whether treaties pertaining to exports can override constitutional rights. But we'll leave those questions for another day. I will just note that you can buy the "Anarchist Cookbook" on Amazon.

Is a Crypto-Anarchist Fit for the Bar?

Cody Wilson, a second-year law student at the University of Texas, has successfully created a 3D-printed gun and fired it. Here's the awesome video:



Mr. Wilson is apparently an extreme libertarian who, according to Farhad Manjoo, describes himself as a "crypto-anarchist":

Crypto-anarchism (or crypto-anarchy) is a cyber-spatial realization of anarchism. Crypto-anarchists employ cryptographic software to evade prosecution and harassment while sending and receiving information over computer networks, in an effort to protect their privacy and political freedom.

Prospective lawyers generally must establish their "character and fitness" to be bestowed with the privilege of practicing law. I wonder whether a person who openly avows anarchy could be found fit to practice law—that is, to become an officer of the court sworn to uphold the constitution and laws of the United States. This question itself may have an unsavory aftertaste, given that it calls to mind similar questions asked of Communists during various Red Scares. But that's how I roll.

Mr. Wilson seems to have broken no law with his 3D-printed gun, and even took active steps to comply with federal law by inserting a non-functional piece of metal into the final product. And I actually can't find any evidence to back up Mr. Manjoo's assertion that Mr. Wilson describes himself as a crypto-anarchist. (All I can find is an interview in which he expresses enthusiasm for cryptocurrencies, such as Bitcoin. It's quite possible that Manjoo just made up this anarchist stuff, because as you'll see in my next post he makes laughably wrong assertions regarding the law in the very same article.) But, assuming for a moment that Mr. Wilson is openly anarchist, it seems fair to at least explore whether such beliefs are consistent with swearing the lawyer's oath of admission.

Troubling Trends

I've noticed a troubling trend, lately: there are a lot of stories about how one thing or another is a "troubling trend."

I don't know where all these trends are taking us, but one thing I do know is that they are troubling.

How many Star Trek references are too many?

Speaking of Mr. Spock, United States District Court for the Central District of California judge Otis Wright issued an 11-page order yesterday with at least 13 references to Star Trek (there may be more, I am not up on all the various TV shows related to the original series).  I have to believe that this is a record for Star Trek allusions in a single order. Maybe this is some sort of weird promotion for the latest Star Trek movie.

Posner on Privacy

Judge Posner has been making some waves recently after he published an op-ed on his skeptical view of privacy. In Posner's view, "there is a tendency to exaggerate the social value of privacy":

I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to society. Thirty-five years ago, when I was a law professor rather than a judge, I published an article called “The Right of Privacy,” in which I pointed out that “privacy” is really just a euphemism for concealment, for hiding specific things about ourselves from others.

We conceal aspects of our person, our conduct and our history that, if known, would make it more difficult for us to achieve our personal goals. We don’t want our arrest record to be made public; our medical history to be made public; our peccadilloes to be made public; and so on. We want to present sanitized versions of ourselves to the world. We market ourselves the way sellers of consumer products market their wares — highlighting the good, hiding the bad.

To understand Posner on privacy,you need to know only one fact: Judge Posner has made public (by publishing!) literally every thought that has ever crossed his mind. (Here is his 170-page CV.)

He has published most of his thoughts many times. His views on privacy are a good example. As he points out, he first started making this argument about how privacy is just a euphemism for concealment 35 years ago! And if you just do a Google search, you'll find a transcript of a Big Think interview from 2007 where he says, well, pretty much the same stuff word-for-word:

No. I value my privacy as much as anyone.  But I think as a social good, a social aspect, I think privacy is greatly overrated because privacy basically means concealment.  People conceal things in order to fool other people about them.  They want to appear healthier than they are, smarter, more honest and so forth.  I mean I’m exaggerating some, but I think it’s very much a double-edged sword, from a social standpoint.  That’s number one.

Another example: Not too long ago Mr. Gillette posted about a recent Posner opinion on the wisdom of imprisoning old people, and it reminded me of a case I read in law school. When I went to look it up, sure enough there was Posner, 25 years ago, writing essentially the same opinion.

Point is, Posner is not normal. He has chosen a ridiculously public life. His views on privacy are about as relevant to me as Mr. Spock's. And Mr. Spock doesn't even exist.

Worlds Colliding All Over My Face

As Reader(s)™ may have noticed, Mr. Gillette and I disagree about many things. But one thing we have in common, apparently, is non-appreciation of Slate legal affairs reporter Dahlia Lithwick. Unfortunately for us, Ms. Lithwick has been given a prize by her peers for the quality of her Supreme Court reporting. Upon learning of this, I honestly thought for a moment that the prize was one of those anti-prizes (like a Golden Raspberry). No such luck.

My general beef with Ms. Lithwick is her cycnical, personality-focused coverage of the Supreme Court. The implicit premise of every dispatch she files is that the Supreme Court justices make their decisions based on ideology at best and temper tantrums at worst. It's rather unbearable.

So, for instance, you'll see her complaining that: 

Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

But I've noticed a conspicuous silence when "powerful corporate interests" somehow lose at the Supreme Court. For example, see my report on Pacific v. Valldolid (2012):

[T]he losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to. [And] the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout." 

Well, you may say, sometimes Justice Kennedy gets swung, but the Thomas-Scalia axis always be comin' down on my boys! Yet it was Justice Thomas who came to the defense of Mr Valladolid, the lowly roustabout. And then when no one's looking the Court goes 8-1 in favor of "big business" with, ahem, Justice Scalia in stirring dissent:

In Justice Kagen's first published opinion, the pro-business Roberts Court predictably sided with the creditor—a big, bad credit card company—by interpreting the Bankruptcy Code to more or less incorporate an IRS regulation that makes clear that taxpayers may not take a deduction for ownership costs unless they have car payments to make. 

Only one Justice had the courage to stand up and dissent on behalf of the poor debtor:  Justice Scalia.  He interpreted "applicable" so that simply owning a car would qualify the debtor to deduct the specified amount from his or her disposable income.  To the charge that his interpretation rendered the word "applicable" superfluous, Scalia responded, "The canon against superfluity is not a canon against verbosity."

These are just two cases I've happened to notice and blog about. I don't believe I've ever seen Ms. Lithwick so much as acknowledge any of these counter-narratives. Why not, I wonder? The answer is obvious: she's an ideologue, not a reporter.

But the plot thickens. Not only has Ms. Lithwick's ideological reporting become the subject of fawning praise and prizes, despite my our lonely efforts to undermine her, but the Roberts Court's supposed pro-business slant is back in the news because an article co-authored by Blog-favorite Richard Posner and published in none other than the Minnesota Law Review (my baby!) purports to prove it for all time. Adam Liptak has the story in the New York Times.

I remain unconvinced. Once again, the main cases trotted out to establish the Roberts Court's pro-business bona fides are cases involving class actions and arbitration. I've read many articles on this topic, but none (other than my own, of course) notes that pro-arbitration and anti-class-action policies are clear favorites of federal statutory law:

Mandatory arbitration, for example, is governed by a federal statute. Congress passed that statute, of course. Similarly, the main recent innovation in class action practice is another federal statute, the Class Action Fairness Act of 2005. Conservative judges surely take opportunities to interpret these federal statutes in conservative ways, just as liberal judges do the opposite. But in both these examples the real problem is that political conservatives have succeeded in passing laws that enshrine policies that conservatives favor. That's democracy, in all its gory, and it is certainly not the role of judges—who (as we can all agree, apparently) are not good at resolving policy issues—to undermine those policies.

So we have a pro-business Supreme Court, sure, but only to the extent that we have pro-business laws because we are a pro-business country full of pro-business people. I think I speak for the clear majority of Americans when I say to you anti-business people: Deal with it, commies.

Should we reconsider our view of Maryland?

As we have noted before, there is some evidence to suggest that the state of Maryland is a hellhole (or perhaps a Hell Hole). However, as a counterargument to the Maryland-haters out there, one might point out that today Maryland became the 18th state to abolish the death penalty. According to this, Maryland is the sixth state that has abolished the death penalty in the in the 21st Century.