Balkinization  

Friday, September 02, 2005

Clueless

Marty Lederman

Remember the incident where the President's father was amazed by that breathtaking invention of the future, the supermarket checkout scanner? By all accounts, his son's Administration has assiduously avoided falling into that sort of trap. And, until now, it's been successful: The Administration might be accused of many things, but tone-deafness has rarely if ever been one of them. Particularly in times of crisis, the White House has been very careful to ensure that the President's demeanor, staging, and comments put him in the best possible light.

Until today. At the very moment when the President seemed as oblivious to the needs of the American people as he has ever been, and in the midst of his eleventh-hour efforts to erase that impression, this was what the President had to say:

"We've got a lot of rebuilding to do. First, we're going to save lives and stabilize the situation. And then we're going to help these communities rebuild. The good news is -- and it's hard for some to see it now -- that out of this chaos is going to come a fantastic Gulf Coast, like it was before. Out of the rubbles of Trent Lott's house -- he's lost his entire house -- there's going to be a fantastic house. And I'm looking forward to sitting on the porch. (Laughter.)"

No, this is not a story from the Onion. Not even the Onion, I suspect, would have the gumption to invent something like that in such a time of crisis and tragedy. The link -- parenthetical note about laughter and all -- is to an honest-to-goodness page on the White House web site. Staggering, no? For five days and nights, the Nation has been witness to devastation among a population that is predominantly poor and African-American. And the singular example of loss on which the President chooses to focus is an oceanfront property of none other than Trent Lott! Well, I don't doubt that the President will, in fact, one day sit on the grand porch of the rebuilt Lott oceanfront (second) home, sipping an iced tea and reminiscing about the good ol' days. But isn't this an especially inauspicious moment to be calling that image to mind? Andrew Sullivan's short take pretty much sums it up:

"Just think of that quote for a minute; and the laughter that followed. The poor and the black are dying, dead, drowned and desperate in New Orleans and elsewhere. But the president manages to talk about the future 'fantastic' porch of a rich, powerful white man who only recently resigned his position because he regretted the failure of Strom Thurmond to hold back the tide of racial desegregation."

As it turns out, Bush 41's scanner incident apparently was, at least in large part, an urban legend. 43's much more disturbing gaffe may, too, become legendary -- but it's all-too-true, and it speaks volumes.

UPDATE: It turns out that's not the only example this week of otherworldly comments by the President. The previous day, the President said this on Good Morning America, in explanation of the slow and inadequate federal response: "I don't think anyone anticipated the breach of the levees." To the extent this was intended -- as appears likely -- to convey the notion that the government was taken unawares of the likely damage resulting from this hurricane, it is the furthest thing from the truth. As Mark Kleiman exhaustively demonstrates in this post, it has been known with certainty, for years, that a hurricane such as this could and would leave New Orleans under water and without power, water, or other services for weeks or months: "Every study of this issue for at least two decades has drawn this conclusion, and there are no engineering or official studies known to me -- none -- arguing that the flooding we have observed would not occur, or that it was so unlikely that disaster planning should ignore it." And more than a week ago, it was clear to all who looked that there was a very good chance Katrina would be the source of such a disaster. That serious relief should only be arriving now, almost a week after landfall, therefore is, in Kleiman's words, "an historic conjunction of incompetence, unconcern, malfeasance, ignorance, and/or stupidity. Period."

Hooray for Principled Conservatives

Brian Tamanaha

The nasty tone that marks current exchanges in the public sphere between liberals and conservatives is disheartening and counter-productive (even if it can sometimes be a guilty pleasure). One consequence of this all-out-attack mode is that it stifles internal criticism amongst conservatives and amongst liberals. Any breaking of the ranks is taken as an act of disloyalty. For conservatives whatever Bush does is right, and for liberals whatever Bush does is wrong.

That's why it is worth noting when liberals and conservatives criticize their own. People on the left condemned NARAL for its initial over the top attack on Justice-to-be-Roberts. To NARAL's credit, the ad was pulled.

Two recent examples of internal criticism by conservatives deserve recognition.

A study from the Census Bureau found that for "the first time on record " "household incomes failed to increase for five straight years." You would expect a report like this to raise the hackles of the right, generating denials or excuses (like: it was Clinton's fault). But read this:

"It looks like the gains from the recovery haven't really filtered down," said Phillip L. Swagel, a resident scholar at the American Enterprise Institute, a conservative research group in Washington. "The gains have gone to owners of capital and not to workers."

There has always been a lag between the end of a recession and the resumption of raises, Mr. Swagel added, but the length of this lag has been confounding.

Liberals can snicker--that's what you get with "trickle down" or "Voodoo" economics, as Bush Senior dubbed it--but instead they should cheer Mr. Swagel for his integrity, both in accepting the numbers and in suggesting, at least implicitly, that the Bush plan hasn't worked out as advertised. Kudos to AEI for retaining a scholar who is dedicated to getting the facts right, and willing to test their favored economic theory or ideology against the facts (p.s. please renew his fellowship).

Even more courageous observations were made by Francis Fukuyama, in his recent New York Times Op-Ed piece, "Invasion of the Isolationists:"

In the immediate aftermath of the 9/11 attacks, Americans would have allowed President George W. Bush to lead them in any of several directions, and the nation was prepared to accept substantial risks and sacrifices. The Bush administration asked for no sacrifices from the average American, but after the quick fall of the Taliban it rolled the dice in a big way by moving to solve a longstanding problem only tangentially related to the threat from Al Qaeda - Iraq.

In the process, it squandered the overwhelming public mandate it had received after Sept. 11. At the same time, it alienated most of its close allies and stirred up anti-Americanism in the Middle East.

The Bush administration could instead have chosen to create a true alliance of democracies to fight the illiberal currents coming out of the Middle East. It could also have tightened economic sanctions and secured the return of arms inspectors to Iraq without going to war. It could have made a go at a new international regime to battle proliferation.

Yep. That's what left opponents of the Iraqi invasion have long been saying. But Fukuyama is generally considered to be a conservative.

This next set of observations by Fukuyama implicitly raise another point that conservatives have remained silent on:

Failure to find weapons of mass destruction in Iraq and the inability to prove relevant connections between Saddam Hussein and Al Qaeda left the president, by the time of his second Inaugural Address, justifying the war exclusively in neoconservative terms: that is, as part of an idealistic policy of political transformation of the broader Middle East.

A longstanding faith of conservatives--of the Burkean type--is that it is wrong, foolhardy, and doomed to failure, to try to remake a society by massive government (war or legally imposed) intervention. A society has an organic existence shaped by its customs, moral beliefs, and traditions; things change slowly through internal shifts in prevailing ideas. The very notion that we could (or should) invade a nation to help (or forcibly) transform it into a democracy is about as un-conservative as you can get. Principled Burkean conservatives should be howling in protest at the neocons and Bush for trying to justify this adventure in terms of spreading democracy. This is not to say that more democracy in the Middle East is a bad idea, but rather that this is not the way to make it happen.

Fukuyama ended his essay leaving no doubt that his commitment to his principles is more important than solidarity with Bush:

We do not know what outcome we will face in Iraq. We do know that four years after 9/11, the whole foreign policy of the United States seems destined to rise or fall on the outcome of a war only marginally related to the source of what befell America on that day. There was nothing inevitable about this. There is everything to be regretted about it.

It is likely that Fukuyama will be ostracized by some of his conservative friends for writing this essay (according to a report, that already happened some time ago when he first began speaking out against Bush's Iraq policies). Instead they should applaud him for demonstrating conviction in his conservative principles.

One of the worst aspects of current public discourse is that anyone who expresses an honest opposition to the Iraq War risks being labeled an extremist, or unpatriotic, or a supporter of anti-American terrorists. No one can say any of those things about Fukuyama.

Another matter in the news almost daily cries out for convervative criticism: the aggressive attempts by Christian conservatives to impose their views legally or by government action on the rest of us (the latest being the withholding of the morning after pill). Any libertarian conservative inspired by Mill's On Liberty should take umbrage at these activites. Speak out, please.

There are many principled conservatives, of course. Hooray for all of you.

Principled liberals and principled conservatives disagree across a spectrum of issues. The best we can hope for is disagreement over honestly held beliefs by open-minded people who want to do the right thing.

(By the way, Roberts' conservative views are worrisome, but by all indications he appears to be a principled conservative.)

Wednesday, August 31, 2005

Disaster Relief and the Constitution: A History of "Strict Construction"

JB

Our prayers and best wishes go out to our friends in New Orleans and in the states of Louisiana, Mississippi and Alabama who have been hit by the effects of Hurricane Katrina. Today the federal government has several programs in effect for providing disaster relief to individuals, localities and states when natural disaster strikes, and no one questions the right and the duty of the federal government under the Constitution to do this.

It was not always thus.

One of the earliest and most contentious debates during the first years of the Constitution's history was whether or not the federal government had the power, under its authority "to pay the debts and provide for the common defence and general welfare of the United States," to spend money for disaster relief for a specific community. Jeffersonian strict constructionists argued that the words "general welfare" precluded such a power, arguing first, that the general welfare clause only gave Congress the power to spend on behalf of one of its other enumerated powers, and second, that even if the power to spend for the general welfare were an independent power, Congress could not devote money to a specific locality or region, but must spend for the entire country as a whole, i.e., "the general welfare of the United States." Loose constructionists, following Alexander Hamilton, argued that the general welfare clause gave Congress a separate power, and that the clause gave Congress wide latitude to spend money to promote what it viewed as conducive to the general welfare. (N.B.: the discussion that follows is drawn from the upcoming Fifth edition to Brest, Levinson, Balkin, Amar and Siegel, Processes of Constitutional Decisionmaking (Aspen 2006), and, in particular, to the wonderful work of my colleague Sandy Levinson).

The strict constructionist/state's rights position which was offered by Jefferson's party caused the Republicans political embarrassment because of floods and fires that occurred in the South, where the Republicans were strongest.

As David Currie writes in THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801, at 224 (1997):

A fire that devastated the Georgia port city of Savannah presented a spectacular opportunity for Hamilton's disciples, for the idea of aiding the victims had obvious emotional appeal for Southern Representatives, many of whom were ideologically allergic to federal spending…. One has the sense that wily Federalists were hoping to slip this one by on sympathy grounds, only to employ it mercilessly as a precedent later on.

Despite this, the Jeffersonian Republicans, claiming that they were being faithful to the original understanding, refused to support federal funds for a specific area of the country.

Hamilton's view has won out, which is why nobody in the federal government today has any constitutional qualms about sending federal money and assistance to New Orleans. Professor Michele Landis Dauber at Stanford Law School has done some excellent work on the history of disaster relief and its connection to the modern regulatory and welfare state, see, for example, Michele Landis Dauber, The Sympathetic State, 23 Law and History Rev. 387 (2005); Michelle L. Landis, Let Me Next Time be "Tried by Fire": Disaster Relief and the Origins of the American Welfare State, 1789-1874, 92 Northwestern U. L. Rev. 967 (1998).

Reasoning along similar strict constructionist lines, President James Madison (who had supported federal disaster relief) vetoed a bill for using federal money to build canals and other internal improvements in 1816, arguing that

To refer the power in question to the clause "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust.

If the views of strict constructionists in the early years of the republic had prevailed, there would be little that the federal government could do today by way of relief expenditures or internal improvements to help the people hurt by Hurricane Katrina; that is so even though the devastation included more than one state. (As today, some disasters during the country’s first century involved more than one state, and the internal improvements bill that Madison vetoed offered assistance to many different states and localities and facilitated interstate transportation.)

Although there were several successful appropriations for disaster relief in the 19th century, strict constructionist objections that such appropriations went beyond the Constitution's limited and enumerated powers did not entirely cease. In 1887, Democratic President Grover Cleveland vetoed a bill “to enable the Commissioner of Agriculture to make a special distribution of seeds in the drought-stricken counties of Texas, and making an appropriation thereof.” Although Cleveland admitted that distributing relief could mitigate the drought and prevent future disasters, he argued that it was beyond a strict construction of the federal Constitution:

I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service [as with veterans, for example] or benefit. A prevalent tendency to disregard the limited mission of [national] power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that though the people support the Government the Government should not support the people.

Cleveland went on to argue that “[f]ederal aid in such cases encourages the expectation of paternal care on the part of the Government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.”

Fortunately, the constitutional text does not require so narrow a construction as Madison, Cleveland and various state's rights politicians have contended for over the years, and a wiser and more liberal interpretation (in both the older and the newer senses of that word) has prevailed, first in the case of disaster relief, and later in the case of internal improvements. By 1888, the Supreme Court upheld legislation that provided partial federal financing for interstate railroads, in the California Railroad Cases, 127 U.S. 1 (1888); however, Justice Bradley relied on the commerce power rather than the spending clause, as we would today. By the New Deal it was long settled that Congress could spend money for “the general welfare” directed at specific localities and regions, including, for example, the Tennessee Valley Authority. In this area at least, strict construction has lost out to loose construction, and it’s a good thing too. There is no doubt that Congress can and has abused its powers to tax and spend– every year we seek more and more pork in the federal budget. But preventing Congress from providing disaster relief to specific areas of the country, as strict constructionists argued early in the country’s history, is not the right solution to the problem. The remedy for bad decisions about public money has to be found within the democratic process itself.


Tuesday, August 30, 2005

The Case for A New Computer Crime Law

Orin Kerr

As I explained yesterday, the field of cyberlaw has evolved in recent years. Its focus nowadays is mostly on specific areas of law in which the new technologies alter old assumptions. In this post, I want to explain why I think the area of law that will be most changed by the Internet is going to be criminal law, even though criminal law is mostly ignored in today’s classes on cyberlaw.

A quick look through some cyberlaw casebooks confirms that the topics covered in today’s cyberlaw courses are almost entirely civil law topics, not criminal law topics. I think this is true for two reasons. First, the first generation of cyberlaw professors were mostly constitutional theorists and intellectual property professors, rather than criminal law professors. Constitutional theorists like Larry Lessig were interested in constitutional theory generally and used “cyberspace” as a new “place” to test their ideas. IP professors were likely to be techies by nature, and readily made the jump to cyber topics when they arose. The second reason cyberlaw courses focus on civil law topics is that the world of legal academia is mostly concerned with civil law, and there is a pretty sharp divide between the crim law people and the civil law people. Specialists in one don’t often jump over to the other.

As a result of this history, most law professors -- and even most cyberlaw professors – have missed the area of law that is going to be most altered by computers and the Internet: criminal law and criminal procedure. The field of criminal law and procedure is most prone to a rethinking in light of computers and the Internet because it is notably sensitive to the specific means by which individuals engage in legally relevant acts. To paint with a very very broad brush, most areas of civil law are focused on harms, and on victims of the harms recognizing when they are harmed. As a result, the precise means by which A harms B is not nearly as relevant as the fact that A somehow does so. What matters isn’t the precise mechanism so much as the end result.

Criminal law and procedure is different. The rules of criminal law and procedure are particularly sensitive to mechanisms. Substantive criminal laws are statutory prohibitions explaining what individuals cannot do or else face criminal prosecution; under the void for vagueness doctrine, the law must state in reasonably clear terms what is prohibited. The law can’t simply say, “don’t harm B,” or “don’t be negligent.” Rather, the laws are more specific and more rule-like: “Do not enter into B’s dwelling at night without B’s permission,” or “Do not operate a motor vehicle on a public road with a BAC of .08 of over”, etc. The same goes for laws of criminal procedure, which are legal commands that govern police conduct in the course of investigating crime. The law can’t simply say to the police to “investigate nicely,” or “don’t go overboard.” Rather, the rules end up being developed by the courts into often unusually specific commands. They say exactly when the police can enter a person’s home, when they can get a warrant, what the warrant allows the police to do, and the like. Relative to most areas of civil law, the regime of substantive criminal law and procedure has produced clear mechanism-dependent rules.

This has profound significance for the future of criminal law and criminal procedure because computers and the Internet change all of the mechanisms. Traditional criminal law and criminal procedure are designed for a world of physical property. The crimes themselves are tied to physical property: theft is taking away of physical property with intent to permanently deprive; trespass is entrance onto physical property without permission; etc. So are the rules of criminal procedure, and particularly the Fourth Amendment. Entering a home or opening physical containers is a Fourth Amendment “search;” taking away physical property is a “seizure.”

Computers replace the familiar mechanisms with something new. The old crimes remain the same, of course. But there’s a new world that is becoming more and more important over time: a new world of digital crimes and digital evidence. Computers facilitate new types of criminal activity: some of the activity falls into the category of computer misuse crimes, such as hacking and viruses, and the rest of it is traditional criminal activity facilitated by computers, such as fraud schemes, child pornography crimes, and online threats. Even when the crime is a traditional offline offense, like a homicide, there may be digital evidence (e-mails, websurfing records, etc.) that the police may want to collect to prove their case. In the new environment, however, many of the familiar mechanisms used by preexisting law can no longer work. The physical spaces and properties used to define the basic rules of criminal law and procedure are gone, and instead we just have zillions of zeros and ones of electricity.

Coming up with legal rules to define exactly what conduct involving the zillions of zeros and ones is permissible, both as a matter of criminal law and procedure, proves surprisingly difficult. A simple translation of old concepts to the new environment proves much harder than you might think; it triggers a seemingly endless series of new puzzles for the law. To pick just a few basic doctrinal examples, what does it mean to “steal” data? What does it mean to “possess” contraband files? To “search” files? To “damage” them? How about to “seize” them? What rules govern the process of retrieving evidence from computer hard drives? What are the rules that govern government access to e-mail? Are they the same as rules that govern access to homes? Does it matter how the e-mails are obtained? Stepping away from doctrine and looking at a more conceptual level, do the traditional physical concepts “theft” or “search and seizure” even work for digital evidence? Or do we need something else?

As such questions suggest, the new environment of digital evidence ends up creating a new platform for the classic questions of criminal law and procedure where the old answers don’t seem to fit. Existing law is heavily mechanism-dependent, and the mechanisms have changed. The new facts demand new law. As I will explain in my next post, the themes of the new law end up cutting across substantive criminal law and procedure and working together to create a new field of computer crime law.


Monday, August 29, 2005

A Brief History of Cyberlaw

Orin Kerr

As I mentioned earlier, I’m blogging this week about the new field of Computer Crime Law. To frame the topic, I want to start by discussing the broader topic of “cyberlaw.” Tomorrow I’ll explain how trends in cyberlaw point the way to computer crime law as a surprisingly distinct field.

When I went on the law teaching market in the summer of 2000, the field of cyberlaw was very hot. Most law schools felt they needed to hire a cyberlaw scholar, and students flocked to the new courses offered on “the law of cyberspace.” Although there were a few skeptics like Frank Easterbrook, the idea of a new “cyberlaw” was seen as quite plausible and also very exciting.

What explains the excitement about cyberlaw from the 1999-2000 period? Part of it was the Internet stock boom, which added a golden shine to all things Internet. But part of it was that the new cyberlaw scholarship promised to reflect and enliven the contemporary experience of being an Internet user. Most American Internet users in the late 1990s were Internet newbies with a dial-up connection to an AOL account, or something similar. Going online really did feel something like jumping onto the “information superhighway,” and using chat rooms and visiting websites really did feel kind of like entering a new space and traveling around a new online world.

The new “cyberlaw” scholarship resonated with a wide audience in part because it was very user-focused. Perhaps the most interesting example is the early work of Larry Lessig. Lessig viewed the Internet much as many users did back in those days, and his work seemed to promise a new kind of law based on that world. The Internet was a world of cyberspace with virtual streets, virtual meeting places, and virtual crimes. Lessig focused much of his attention on who set the rules for this new virtual space, and popularized the idea that “code is law” as a way of explaining the relationship between the decisions of the coders who defined the new space and the environment they created. As of 1999, at least, lots of people expected the new cyberlaw to be the new law that governed this new virtual world.

Now let’s fast forward to today. Most schools still offer some kind of Internet law course, but the ground has shifted considerably. Instead of focusing on Internet law as the law of a new virtual world, courses are more likely to feature a grab bag of interesting questions of civil and constitutional law implicated by the Internet. Intellectual property is one core area (particularly copyright); First Amendment law is another; jurisdiction and choice of law is a third. Although the different casebooks offer different approaches, my sense is that most are focused on covering a few areas of law in which the new facts of the Internet may change the assumptions of prior law.

Why the shift? There are many reasons, but perhaps the most important is that the user-focused approach to cyberlaw didn’t quite pan out. The user experience changed with the introduction of broadband and wifi; the Internet became integrated into our experience with the physical world rather than a place to go that was somehow separate from it. As users became more sophisticated and the range of Internet applications broadened, it became harder to see a user’s experience as quite as important as it first seemed. Without user experience as a reliable hook, the focus among courses in Internet law turned more to doctrinal disputes in specific areas of law.

In short, my sense is that Internet law has settled in a bit in the last five years. Its aspirations today are less grand and more doctrinal, and the key questions have shifted from virtual worlds to updating old rules given new technological facts in a few specific doctrinal areas of law.

Guest Blogger: Orin Kerr

JB

I'm very happy to announce that Orin Kerr, who is one of the leading figures in the study of cybercrime, will be guest blogging at Balkinization. Please give him a warm welcome.

Introduction

Orin Kerr

I’m delighted to be guest-blogging here at Balkinization. I teach criminal law, computer crime law, and criminal procedure at George Washington University Law School, where my office is down the hall from Daniel Solove. I plan to blog about a few different things while I’m here, but I want to focus first on a project I started in 2001 and have been working on intensely for the last few months: writing a casebook for West Publishers on Computer Crime Law. I want to explain what the field of computer crime law is about, why it’s important, and why I think computer crime law is going to end up someday as a standard part of the curriculum at most law schools. I’ll start my substantive blogging shortly, with a post on the Rise and Fall of Cyberlaw as a field of law. I should be posting it later tonight.

Synthesizing Originalism and Living Constitutionalism

JB

My defense of the idea of a living Constitution and my criticism of the way originalism is currently understood appears in Slate here. As you'll see from the piece, I argue that everybody is actually a living constitutionalist whether they admit it or not, because nobody wants to be bound by the original understanding once they understand what that really entails. Conversely, I argue that living constitutionalists are and should be bound by the original meaning of the constitutional text but not by its original expected application.

This puts me in the same camp for many purposes as someone like Randy Barnett, who regards himself as an originalist, or my colleague Akhil Amar, although in the Slate piece I'm distinguishing myself from and criticizing other people who also regard themselves as originalists (like Scalia and Thomas).

In fact, if my views are originalist in any degree, then it suggests that some forms of originalism and living constitutionalism are fully compatible, rather than opposed, as Justice Scalia contends. That by itself should suggest that the labels "originalist" and "nonoriginalist" may do far less work than people might think.

Perhaps more importantly, it also suggests the possibility of a synthesis of the historical work that originalist scholars have been doing over the past twenty years in uncovering the original meaning and understanding of the constitutional text with the premises of a living Constitution. In fact, I think such a synthesis is not only possible, but highly desirable.


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