Discourse.net

David Brooks, Relativist

I was going to avoid blogging anything about David Brooks’s phenomenally wrongheaded op-ed, The Presidency Wars, in today’s New York Times on the grounds that its deficiencies were obvious. But then ABC’s influential and often sensible The Note (link updated 10/2/03) praised it, saying, “If you care even a whit about America having a civil national public discourse (during this time and forever), read every word of David Brooks’ brilliant New York Times column, and thank Arthur for hiring him.” In light of that maybe there is some need to point out just how unreasonable and anti-intellectual David Brook’s column really is.

It’s hard to summarize an argument that isn’t an argument so much as a mood. Echoing years of ‘The Breaking of the President’ rhetoric (a meme that I think started with David Broder), the column moans that there are players in the Presidency wars who treat disagreements about policies as fundamental issues of values, and argue that their opponents are illegitimate. The anti-Clinton crowd did this and they were wrong, Brooks argues somewhat belatedly, and the anti-Bush crowd is doing it now and they are wrong too:

To the warrior, politics is no longer a clash of value systems, each of which is in some way valid. It’s not a competition between basically well-intentioned people who see the world differently. It’s not even a conflict of interests. Instead, it’s the Florida post-election fight over and over, a brutal struggle for office in which each side believes the other is behaving despicably. The culture wars produced some intellectually serious books because there were principles involved. The presidency wars produce mostly terrible ones because the hatreds have left the animating ideas far behind and now romp about on their own.

The warriors have one other feature: ignorance. They have as much firsthand knowledge of their enemies as members of the K.K.K. had of the N.A.A.C.P. In fact, most people in the last two administrations were well-intentioned patriots doing the best they could. The core threat to democracy is not in the White House, it’s the haters themselves.

I agree that people who focus on their hatred for a person as opposed to hatred for a policy are not generally helpful. But Brooks’ main point, that the Administration’s fiercest critics are a bigger threat to our liberties than the Administration itself is seems offered as a matter of faith rather than something based on evidence. Can it seriously be argued that a writer for the New Republic is a “core threat” to our liberties, one greater than the lawyers who are arguing that the US Government has the power to seize any citizen anywhere and hold them indefinitely without trial?

More fundamentally, Brooks’s view depends on a rejection of the idea that there is any truth out there that can be ascertained. If one believes in truth, in even an approximate way, then it is simply wrong to dismiss arguments that ‘X is a liar’ or ‘Y is a danger to our liberties’ out of hand as illegitimate, even if you go to nice dinner parties with nice people who don’t seem the least bit like monsters and probably are not in fact at all monstrous in their daily life. It is theoretically possible, after all, that some of those claims of systematic mendacity and fundamentally anti-Constitutional policies are accurate. Or, they are falsifiable, in which case we should educate (or, in some cases, condemn) those who advance them. In either case, journalists owe it to their readers to provide facts. These are mostly absent from Brooks’s column.

OK. Somewhat shorter David Brooks:

The core threat to democracy is never the people who are in power, it’s their critics. There is no need to consider the actual facts about the current Administration’s veracity in making the case for war (which if proved might substantiate claims that the Administration undermined the democratic process), nor the consequences of its economic policies for the next generation (which if substantiated might show that future generation’s democratic options are being intentionally constrained for the benefit of a few today), nor the civil liberties consequences of CAPS2 and other tracking systems, nor the civil liberties implications of the Padilla case because the Administration’s critics are too shrill and don’t know all the nice people in Washington as well as I do.
[reformatted for clarity]

Am I the only who thinks it is odd to find that the so-called conservative position today is grounded in relativism?

Update: Just in case it wasn’t clear from the above: part of what I am taking issue with Brooks’s assertion of automatic equivalence. Equivalence is certainly possible, but it should not be a substitute for thinking things through first. Just because some–but not all–of Clinton’s critics were absolutely loopy, and fulminated for eons about a bunch of crimes that clearly never happened (Vincent Foster was murdered, Clinton raped various people, the Clintons did something illegal in the Whitewater matter), it does not follow that people who say the current administration, or parts of it, is mendacious, evil, or dangerous must therefore be ignored without first weighing the sometimes extensive evidence they have offer.

Legalizing Miss Daisy

There’s wars on in Iraq and Afghanistan, the economy is tanking, it appears that someone in the White House will trifle with a CIA agent’s cover for cheap political revenge, there’s uncertainty as to the integrity of the ballot box, but down here in South Florida, the local citizenry have their priorities straight and are sticking to domestic issues. For example, today’s Miami Herald reports on the “crusade” by Homestead resident Cindy Adams to regularize the status of Miss Daisy.

Miss Daisy is not an undocumented immigrant washed up on these shores. She’s native-born, but in an act of the rankest discrimination, the town of Homestead wants her rusticated just because she’s a pig.

Ms. Adams is trying to right the injustice that threatens her porcine companion. The Miami Herald, a paper with a shrunken staff, shrunken news hole, and recent redesign by someone who was channeling USA Today is all over this story, with pictures, including this priceless one:

Not to be outdone when it comes to pork, Governor Jeb Bush has gotten out front on this essential issue of pigs rights, and has issued a proclamation saluting potbellied and other miniature pigs. But not too far out front. In keeping with the Jeb Bush strategy of never taking the visible lead on a red-meat (or is that a white-meat?) issue, our Governor didn’t go as far as Alabama and Pennsylvania, which each proclaimed a “Minature Potbellied Pig Day”.

This sort of stuff is why local scribe Dave Barry has to keep saying “I am not making this up.”

The Dean Campaign Does Something REAL Smart

I’m impressed by Dean Campaign’s new Net Advisory Net, which is nothing less than a modular, virtual, board of policy advisors which has as its first effort attracted some serious people with serious ideas. (And—very smart—the ‘NAN’ is set up with campaign deniability built-in in case the advisors go nuts on some issue.)

You have to had it to the Dean for President campaign. They are not only smart but they have good taste .

I almost turned myself into a Dean volunteer long before he was famous as the ‘anti-war’ candidate — I liked his health care plan which centered on insuring children. It was simple, straightforward, and politcally practicable and would have a big bang for the buck.

There were two things that held me back. First, even early on Dean seemed gaffe prone, and in this era of ‘gotcha’ media, the danger of a spectacular crash-and-burn seemed too high. I’m still not sure about that one. The second reason was that I have a rebuttable presumption against supporting governors from small states. A Jimmy Carter type comes to Washington with too few friends capable of running the country. The President ends up either with too few trusted advisors, or finds himself relying on folks who aren’t up to it. The presumption is rebuttable (cf. Clinton; while he had a lot of faults, lack of high-powered friends was not one of them).

If this “Net Advisory Net” is more than PR, Howard Dean has just removed one of the two worries I had about him.

The FAQ is pretty impressive too:

The Net Advisory Net, or NAN, is a collection of advisors working with one other to frame Internet Policy issues for Governor Dean and his staff, and recommend approaches towards technology issues for a Dean Administration. The Dean Net Advisory Team will present to the Governor and his team diverse and highly-informed opinions concerning the Internet and its potential impact upon society.

Click here to read the Principles that will guide the discussion of the Net Advisory Net. According to these principles, the Internet is more than a valuable information resource. It enables people to connect directly with others, helping to fulfill the vision and ideals of democracy but it cannot exist for the unique benefit of any group or economic interest. Universal internet access should be a federal goal.

Click here to read biographies of the initial members of the broadband access working group of the Net Advisory Net.

Frequently Asked Questions about the Net Advisory Net

What is the NAN?

It’s a team of smart people who are advising Gov. Dean and his team on Internet policy.

What does the NAN do?

Its task is to come up with policy options the Dean team should consider. The Governor approaches decisions as a physician: understand the facts, understand the likely short and long-term effects, and make a choice based on the facts, probable outcomes, and values.

So, the NAN presents all possible options …?

Not quite. The Dean campaign stands by a set of core Internet values, published here. The campaign is looking at policy options that support those values, although we’re open to a very wide range of opinion.

How do you get onto the NAN?

You get invited.

How do you choose who to invite?

We took the “Dream Team” approach. Members are people with broad experience, have thought deeply about the issues, are passionate about preserving the value of the Internet.

Do all NAN members endorse Governor Dean for the presidency?

No. That isn’t a requirement for membership.

Likewise, does the Dean campaign support every idea every member of the NAN has ever published?

Of course not. The NAN team is purposefully diverse in its thinking. That’s part of its strength.

How does the NAN work?

It’s divided into topical areas. Each member focuses on one topic, although she or he is free to comment on other topics as well. Each discussion group prepares policy option statements that lay out the facts supporting a particular option, the values that it supports, and assesses its likely effect short-term and long-term.

The group then meets face to face with the Dean team to go over the options.

When will these decisions be made?

When we feel confident that we are making the best decision possible.

But too frequently policy decisions are a way of closing off conversation. The issues the NAN is dealing with are important, complex and occurring with a context that will never be finished inventing itself. We intend to stay engaged in conversation even after the policy decisions are made.

How open are these discussions to the public?

We want to encourage widespread conversation with everyone who cares about the Internet, but we also recognize that some conversations do better without constant public exposure. So, we’re trying to get the mix right. The NAN members will talk amongst themselves but also participate in the public conversation on the NAN site.

Is the NAN a decision-making body?

No, it’s a conversation-making body. From that conversation will emerge policy decisions. And we see tremendous value in continuing conversation. In fact, some of the policy decisions may well be to engage in a Great American Conversation over issues that have no single or simple answer.

Yahoo! Wants $299 for Listings

One of the few things I did to announce this blog (I'm still struggling with whether to send an email to the colleagues) is attempt to list it on Yahoo!

I looked around and the most appropriate category seemed to be Directory > Computers and Internet > Internet > World Wide Web > Weblogs > Law so I clicked on the "suggest a site" button in that category.

My first reaction was, Wow! Either they're desperate, or things have changed in the three years or so since I last tried to put something in the directory. For this is (approximately) what I saw (squeezed a bit to fit the blog):

Suggest a Site to Yahoo!

There are two ways you can submit a site to the Yahoo! Directory. If you choose Yahoo! Express we guarantee that your site will be considered by our editors within 7 business days.

Yahoo! Express 7- Day Guarantee US$299.00 non-refundable, recurring annual fee ° Required for commercial listings but available for any site ° Guaranteed and expedited consideration of your site within 7 business days Learn more… Suggest via

OR

Standard Free! No time guarantee ° Most non-commercial sites have been suggested to Yahoo! this way ° Due to the volume of suggestions, we cannot guarantee a timely consideration of your site. Learn more… Suggest via

This Could Spell the End for Margaritaville

Wasting Away in Margaritaville isn’t just Sen. Bob Graham’s favorite song, it’s more or less the antham of Key West and erratic points north as far as South Beach. Imagine the horror that will grip South Florida if it sobers up enough to learn that Mexico is threatening to cut off all bulk exports of Tequila.

Kidding aside, this has all the makings of a classic NAFTA reference, as Mexico will claim its motive in blocking bulk exports is product purity, and the US will claim it’s just a cover for the real motive, forcing all those bottling jobs to move south of the border

New Handy Cyberlaw Resource

Jennifer Granick of the Stanford Center for Internet and Society has just announced the publication of the first Packets newsletter designed “to provide the legal community with concise descriptions of recently decided cyberlaw-related cases, and to point to the original decisions.” The announcement says it will be a bi-monthly publication written by Stanford Law School students. Staff and fellows of the center and volunteer attorneys will be the editors. The first issue is already online. It looks like a good, and well-written, resource for students and for lawyers who are not immersed in the field, complete with links to the sources after the summaries. People wanting more news, more often, albeit even more summarized, will probably want to subscribe to Michael Geist’s exhaustingly comprehensive free daily newsletter, BNA Internet Law News.

The Admirable IETF Reform Process

The Internet Engineering Task Force (IETF) is engaged in a lengthy bout of self-criticism and attempts to reform the processes by which it creates the Internet standards most of us don’t know but love. (If you want a short intro to the IETF, it has a sort of self description and a sort of mission statement.)

Very much in line with the open, participatory ethos I described in Habermas@discourse.net: Toward a Critical Theory of Cyberspace, the IETF is going about the project of trying to make itself better — a daunting task in light of the self-perceived decline in both the speed and quality of new standards, various workflow difficulties including duplication of effort and inconsistent projects, plus the sense among some participants that the entity is no longer as effectively bottom up and democratic as it used to be. Rather than reject these claims, the IETF establishment, gently herded by IETF Chair Harald Tveit Alvestrand, is addressing these very difficult, sometimes intractable problems head-on. You can monitor their efforts at Status of change efforts within the IETF. The problem-statement working group charter and the problem-statement mailing list provide richer detail for those with the time to delve deep. So far, it’s an impressive effort that I think largely justifies my claim that the IETF is the closest thing we’ve got going to Habermasian discourse in action.

Update: And here’s a link to draft-ietf-problem-issue-statement-04.txt which lays it all out.

Our Terrorism-Fighting Tax Dollars At Work

The folks at the Defense Threat Reduction Agency (DTRA) sure have been busy. The BBC reports that US spies monitor whisky plant:

‘They said they had been monitoring our webcams because the process of making something very innocuous and pleasant is close to making weapons of mass destruction, apparently.’

There’s of course nothing legally or morally wrong with this government or anyone else watching a webcam feed made freely available over the Internet. But given the DTRA’s mission…

‘The Defense Threat Reduction Agency safeguards America’s interests from weapons of mass destruction (chemical, biological, radiological, nuclear and high explosives) by controlling and reducing the threat and providing quality tools and services for the warfighter.’

…haven’t they anything more productive to do?

Spot The Weird Detail

For today’s enjoyment, we present a fairly typical Florida news item, Large lizards confiscated from trucker. Can you spot the odd and unusual fact?

A Connecticut truck driver was charged Wednesday with three misdemeanor offenses for traveling with his pets - a 3-foot alligator and a 5-foot caiman.

“He had a dog harness and a leash to walk the caiman with,” said Lt. Joy Hill, spokeswoman for the Florida Fish and Wildlife Conservation Commission, which levied the charges. “They are not really very warm and cuddly.”
…
Avery said the crocodilians were his pets and that he had the caiman about 10 years and the alligator for about a year. It is illegal to have an alligator for a pet in Florida, and one must have a Class II permit to have a caiman. Avery had no permit.

Is the odd fact that,

• A trucker kept good-sized crocs as pets?
• That he walked the crocs on a dog leash?
• That he didn’t have a croc license?
• That he was a New Englander who brought his weirdness down to Florida?

No, all of those are the sort of things a good denezin of South Florida must learn to take without blinking. The weird thing about this story is that there’s an applicable law and it was enforced…

Irony Distinguished From Chutzpah

Chutzpah, classically, is killing your parents and throwing yourself on the mercy of the court because you are an orphan. Irony is John Ashcroft’s Justice Department investigating this in light of this new policy.

A further irony (can it be a mere coincidence?) is that Bush’s WMD scandal (like UK Prime Minister Tony Blair’s scandal) is not, as a primary matter, going to be about whether he lied to the nation about whether its national survival was threatend by tons of Iraq anthrax, chemical weapons, and nuclear bombs ready to strike us on a moment’s notice, but rather about leaking the name of a confidential government employee for political gain.

Update: Digby points out some connections between the Bush spin operation and the Blair spinner-in-chief Alastair Campbell, he of the ‘dodgy dossier’. Maybe it’s not a further irony, but just ‘what goes around comes around’?

The Year That Anything Can Happen

If the Cubs can win the division title, then anything is possible (except Washington DC getting a team…). So please don’t tell me the Democrats can’t win a majority in the Senate. If the Cubs win the World Series, can Democrats dream of a two-house sweep, even despite the DeLay anti-hispanic redistricting in Texas?

Seriously, if senior Bush aides really outed a CIA agent for petty political pique, and the President didn’t lift a finger to investigate the matter for months, this will resonate in the heartland. Add in the constant drip, drip of casualties, plus reservists serving longer tours than anyone expected without much feeling of achievement, not to mention respected commentators saying Bush is destroying the Army, and economists nearly unaninimous that Bush is destroying the economy, it is now possible to imagine an electoral dynamic in which Republican congresspeople run away from the Bush White House. And in which their opponents make hay by tying them to Bush policies.

It is no more inevitable than the Cubs winning. But never say never.

My Lawyer Can Beat Up Your Lawyer

Via IPKat, a nice English blog devoted to intellectual property, comes a pointer to a New Scientist article reproducing an unusually agressive online warning against misappropriation of text and images: “My intellectual property attorney is a scary-smart guy. He was the youngest person to ever pass the bar exam in his state. Plus he put himself through law school by working as a professional wrestler. I am not making this up.”

It reminds me of when I was in private practice. I spent most of my relatively short career in the London office of a US firm, serving European clients. After a while, I began to understand why certain ones of them liked taking a US lawyer to meetings. To them, it was a way of signalling to their European counterparts, ‘See my legal pitbull. Be nice, or I’ll sic him on you.’

First Robin of Spring?

Methaphorically, anyway: rc3.org | Republicans in Texas revolt against Bush

I'll Go Out On A Limb Here: SCO's Motion to Dismiss Will Fail

Predicting the outcome of lawsuits is a risky game. But I’m going to predict that this motion by SCO seeking to dismiss the declaratory judgment complaint filed against it by Red Hat will fail. Miserably. Unless of course SCO’s lawyers were to promise the court that they would never bring a copyright infringement claim against Red Hat or any of its customers. That’s highly unlikely, but it would certainly moot the case.

SCO is the company that has been running around claiming that Linux violates its intellectual property rights. While trumpeting this claim, and offering purported licenses to users of Linux, SCO has been unwilling to make public a single convincing example of infringing code. It seems pretty obvious that SCO’s own actions create a live controversy sufficient to satisfy the Declaratory Judgment Act, 28 UCS § 2201. Furthermore, the suggestion that the case is somehow precluded by a related action involving SCO and IBM is not at all persuasive, especially as many of the issues in that case involve a contract to which only IBM was a party. SCO is represented by David Boise’s firm, Boies, Schiller & Flexner. So far, the paper in SCO’s case and the client’s general behavior are not making the Boise firm look good (yes, yes, I know some clients are beyond their lawyers’ control….). Usually top-quality firms have aces up their sleeves before filing stuff like this motion, something that over time gives them credibility with judges, but right now I just can’t see where an ace might be hiding.

There has also been recent action in the SCO-IBM case: IBM filed an elegant and reasonable-sounding counter-claim. It’s an interesting document because it wraps IBM’s case in the flag of open source and the GPL. IBM is represented by Cravath, Swaine & Moore.

Meanwhile SCO insiders have been selling stock at a decent clip .

The whole SCO-Linux thing is too big to summarize here. If you’re just coming in at the middle, the places to go for more info are Slashdot and especially a great blog called Groklaw. Worryingly, Groklaw—imprisoned by the responsibilities of success—is about to have a bit of an identity crisis.

A Modest Dinner-Party-Based Proposal For An Iraqi Exit Strategy

I had a very pleasant dinner this evening with a group that included David Carlson and Jeanne Schroeder, two professors from Cardozo law school, who were in Miami this week to give talks to the law school. The stimulating papers are unpublished, and I forgot to ask if they were ok to blog, so I won’t. Profs. Carlson and Schroeder are, like Caroline and me, members of the rare group of married law faculty members who teach at the same school as their spouse.

Dinner conversation included a discussion of the Administration’s $87 billion supplemental budget request for Iraq. David and I wanted to figure out how much this was per Iraqi, and how it compared to Iraq’s pre-war GDP. But we realized we didn’t know some basic facts about Iraq, so I promised to look them up when I got home. According to the CIA Factbook, Iraq today has an estimated population of just over 24,683,000, and (in 2002) had a GDP estimated at US$58 billion in purchasing power parity, giving it an estimated GDP per capita of about $2,400. (David’s guess as to GDP was much better than mine, but I had a better guess as to the population.)

The Administration seeks $87 billion, but not all of it is for Iraq. According to the New York Times, “Of the $87 billion, military operations in Iraq would account for $50.5 billion. Military operations in Afghanistan would take up $11 billion, Iraqi reconstruction $20.3 billion, and Afghanistan reconstruction $800 million.”

Counting just the reconstruction grant, that makes a subsidy about equal to 40% of Iraq’s former GDP, and about $960 for every Iraqi. Throw in what we are spending to occupy the country, and it’s more than last year’s Iraqi GDP, and about $3,230 per Iraqi.

Having seen these numbers, I’ve now cooked up a modest proposal for a US exit strategy from Iraq. Bring all the troops home. Give each Iraqi $3000 a year for the next year or two, and count on the free market to conduct the reconstruction for us at much greater efficiency than we would otherwise achieve.

Ok, I’m kidding. I think I’m kidding. Yes, I’m kidding. Definitely kidding. We can’t do that until shortly before the election….

One Last (?) Thought About the Do-Not-Call Decision

As noted by a poster, and others, I should really have noted the extent to which the Judge Nottingham’s decision relies not just on the R.A.V. decision, but also on the more closely apposite Cincinnati v. Discovery Network decision. That case struck down an attempt by the city to ban newsracks with commercial handbills, but not those with newspapers (which included both commercial and political speech), on the grounds it would help beautify the city. The case is distinguishable: the Court found the rule didn’t materially aid the city’s objective, since the handbill racks were only about 3% of the city’s total. In the do-no-call case we’re looking at about 50%, so as Judge Nottingham observed if the issue were only “numerical underinclusiveness” then the do-no-call rule survives. But, the Judge held,

In Discovery Network, the Supreme Court recognized content discrimination as the primary flaw in the city’s regulation of news racks. The city’s regulation failed under the First Amendment because the regulation distinguished between commercial and noncommercial speech, despite the fact that there was no evidence that the commercial use of news racks was more harmful to city beautification than other uses of news racks. When a regulatory regime is pierced by content-based exemptions and inconsistencies in the government’s explanation as to how the regime advances a substantial interest, it must fail under the First Amendment. Simply stated, the government’s practice cannot be at odds with the asserted government interest. The regulation cannot distinguish among the indistinct, permitting a variety of speech that entails the same harm as the speech which the government has attempted to limit. Here, plaintiffs argue that the registry does not materially advance the FTC’s interest because the FTC has made a content-based distinction between commercial and charitable solicitations for reasons unrelated to its interest in privacy.

… Realizing that its interest in privacy does not justify the distinction between commercial and noncommercial speech, the FI‘C attempts to justify the distinction by advancing several other arguments. First, the FTC argues that nonprofit corporations and political fund-raisers are less likely than for-profit entities to engage in abusive practices because the consumer is both a potential donor and a potential voter or volunteer for the charity or political party. Distinguishing between commercial and noncommercial speech may be proper when it bears a relationship to preventing commercial harms, such as fraud. (citations omitted)

It isn’t true, as one Representative said yesterday, that “50 million Americans can’t be wrong.” They can be, and that’s one of the reasons for the Bill of Rights. But 50 million Americans, a determined Congress, and unsympathetic plaintiffs are likely to motivate a reviewing court to see if there are any good excuses to uphold the statute. This is why I think the legislative record in Congress may matter. And, if you squint at it just right, it might provide what is needed.

Yet More About the Do-Not-Call-List

Surprise, surprise, the FTC is going to appeal Judge Nottingham’s decision striking down the do-not-call list program.

I had a look at the Congressional Record to see what if anything a court might mine from it. [Cites to thomas.loc.gov are not permanent so this is hard to link. Look for the Senate - September 25, 2003 at page S11957 and the House at H8916.]

The key point here is that there is some stuff a court willing to work with legislative history (itself a controversial issue) could use. But there’s not a huge pile of it.

Senator Pryor is maybe the key here. He mentioned that there is telemarketing fraud, and this will reduce it, which a very determined court might use to suggest that the ‘fighting fraud’ exception to the general limit on content discrimination could be justified here. In fact, he said it in two separate speeches—and the second, briefer one may be the one that provides a hook to save the bill: “Mr. President, we all know that fraud can be very much a problem when it comes to telemarketing, but we also know a Do Not Call registry is a very positive consumer tool against fraud. By that I mean if you signed up for the National Do Not Call plan and you still get a call, you know something is up. That ought to be your first tip that something may be amiss with this call.” That should do it.

Other than that, there isn’t that much. Several Representatives and Senators said conclusory things like ‘there is no First Amendment issue here.’ That won’t do anything. Representative Holt said,

Telemarketers have, like everyone else in this country, the right to free speech. They have the right to say what they want. What they don’t have is the right to force Americans to listen to their sales pitches.

Americans, on the other hand, should have the right to a little peace and quiet. They should have the right to not have to get unwanted advertising pitches over the phone during dinnertime.

Telemarketers already have the tools they need to exercise their right to free speech—they have autodialing computers, prerecorded messages, phone registries, and legions of operators. In creating the Do-Not-Call Registry, the FTC was merely trying to provide consumers with the power to truly exercise this right. The Do-Not-Call Registry is just one simple, effective tool that will give consumers the ability to exercise their right to a little peace and quiet.

Senator Hollings did say the Americans “want to protect their private medical and financial information and protect their children from indecent advertising,” although it’s somewhat unclear to me what the first part of this has to do with the subject.

Senator Dorgan could be read to say that sales calls are more annoying than other types, when he said, “There may be some people who are terribly lonely and whose phone seldom rings except to have an advertiser of a credit card or a long-distance service call during meal time just wanting to visit about their product. There may be some people who welcome those calls, just talk the ear off these telemarketers. I can’t say that for sure, but this country is full of very interesting people. As for me and for most of the American people, getting a telephone call in the middle of a meal or getting a telephone call at all hours of the day and night to have someone tell us that we really need a new long-distance service or a preapproved credit card gets a little annoying. Unsolicited phone calls are an intrusion on the phone line that most American people pay every month to have in their home.”

Meanwhile, here’s the offical text of the bill as passed by both houses:

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry. (Enrolled as Agreed to or Passed by Both House and Senate)

H.R.3161
One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the seventh day of January, two thousand and three

An Act
To ratify the authority of the Federal Trade Commission to establish a do-not-call registry.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. NATIONAL DO-NOT-CALL REGISTRY.

(a) AUTHORITY- The Federal Trade Commission is authorized under section 3(a)(3)(A) of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102(a)(3)(A)) to implement and enforce a national do-not-call registry.

(b) RATIFICATION- The do-not-call registry provision of the Telemarketing Sales Rule (16 C.F.R. 310.4(b)(1)(iii)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

There was a slightly amusing moment in the House when one Represenatative said that he knew they were sometimes attacked for voting on bills they had not read. Well, this time he was going to read the whole (tiny) bill to the chamber, so there would be no doubt everyone knew what it said.

Traduction Bidon

I have just added a link in the right margin to the Fagan Finder translation tool which allows readers to translate the blog with two clicks. (Note: it only works if you don’t block referrers.) The translation tool covers an amazing number of languages, but like the Babelfish, the translations do leave a little to be desired. Consider this translation into French of the previous item:

Argh. Blogging se développe en culture secondaire avec son propre argot. Non, non, non, qui est pas ce que je veux. Ce n’est pas lycée. Je ne ai pas besoin d’une clique pour rendre me le sentir bon. Je veux participer aux conversations pensives qui fuient dans la sphère publique.

D’autre part, Technorati.COM prétend savoir de 994.254 weblogs (qui devraient frapper million par la semaine prochaine), avec 45.043.270 liens actifs. À plus mauvais, c’est a substantiel culture secondaire.

Mais, l’amusement comme limites aiment “Bleg,” “Blogroach,” “Fisk”, “Idiotarian,” ou “Instapundit” peut être, je ne pensent pas que je vais avoir beaucoup d’utilisation pour la plupart de jargon blogging. J’espère écrire comme prose franche comme je bidon, sujet à la nécessité occasionnelle d’exprimer des idées et la nuance complexes, et naturellement à la privation systémique de sommeil.

Well, the first sentence is great. But the last paragraph is a mess. “J’espère écrire comme prose franche comme je bidon”? I don’t think that’s quite what I meant.

Reminds me of the old joke about the test for a translation program. Supposedly, during the Cold War there was a lot of research on Russian-English translation for use on the hotline between the White House and the Kremlin. The story goes that the spec called for a program that could take an English phrase, translate it to Russian, then when the output was run through the program again in the reverse direction would translate it back into the original English. So the engineers came up with a prototype, and input their test phrase: “Out of sight, out of mind” and got back some Russian. When they input the Russian, they got back “Blind drunk”.

Blogging: It's A Sub-Culture

Argh. Blogging is developing into a subculture with its own argot. No, no, no, that is not what I want. This isn’t high school. I don’t need a clique to make me feel good. I want to take part in thoughtful conversations that leak into the public sphere.

On the other hand, Technorati.com claims to know of 994,254 weblogs (that should hit a million by next week), with 45,043,270 active links. At worst, that’s a substantial sub-culture.

But, fun as terms like “Bleg,” “Blogroach,” “Fisk”, “Idiotarian,” or “Instapundit” may be, I don’t think I am going to have much use for most blogging jargon. I hope to write as straightforward prose as I can, subject to the occasional need to express complex ideas and nuance, and of course to systemic sleep deprivation.

Lots More About the Do-Not-Call-List

Turn your back for a minute, and everything changes. While I was teaching a class and eating dinner news broke that a second district court has struck down the do-not-call list, this time on First Amendment grounds.

Having quickly read this new decision by U.S. District Judge Edward Nottingham of the Colorado District Court in Denver striking down the do-not-call list, Mainstream Marketing Services v. FTC, I think that there are grounds to believe that, despite being decided on First Amendment grounds, this decision either will not affect the new congressionally mandated plan and/or will be reversed on appeal. I teach a lot of varied things, but First Amendment law is not one of them. So I’m offering these tentative thoughts as a sort of rough draft. If on reflection I change my mind, I may rewrite parts of this, and indicate where I made changes.

There is a grey area in the law here, and this decision wallows in it. But before getting to the hard stuff, there’s the question of whether this decision is valid at all — arguably it was moot at the time it was issued, since the FTC’s plan had already been struck down (on a different theory) by Judge Lee R. West in Oklahoma. Alas, even if that’s right, it doesn’t really matter, since someone can file a new case as soon as the new congressional legislation (quoted below) is signed into law. (I also leave for a legislative expert whether the trivial wording differences between the House and Senate versions will require any adjustment before a bill goes to the White House for the occupant’s signature.)

To follow what’s coming, keep one distinction in mind: viewpoint discrimination is when the government favors one side in an argument. Content discrimination is when the government tries to take a subject, or a type of speech, off the table entirely. Viewpoint discrimination is a First Amendment deal breaker in all but the most unusual circumstances, usually involving conduct as well as speech. The law on content discrimination is murkier. It’s clear that to the extent content discrimination amounts to viewpoint discrimination, it’s forbidden. After that, it gets complex. Or, as Robert Post put it in Recuperating First Amendment Doctrine, 47 Stan. L. Rev. 1249, 1265 (1995), “Whatever the ultimate merits of a First Amendment focus on content neutrality, the Court’s doctrinal elaboration of [the doctrine that restrictions on speech must be justified without reference to the content of the regulated speech] has been haphazard, internally incoherent, and for these reasons inconsistent with any possible principled concern for content neutrality.”

Judge Nottingham’s decision turns on his finding that the FTC’s decision to ban commercial telemarketers but not non-commercial charitable solicitations is impermissible content discrimination as it favors the content (note—content, not viewpoint) of non-commercial speakers over commercial ones. And that, the Judge held, is no go.

The Judge based this ruling on R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), which states that “[c]ontent- based regulations are presumptively invalid.” Similarly, in Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994), the Supreme Court stated that “[o]ur precedents … apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” But, “regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny … because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.”

Some academics, including Dean Kathleen M. Sullivan, have criticized this approach for encouraging legislatures to ban whole classes of speech for fear of engaging in content discrimination.

In fact, the Supreme Court has not been quite that categoric. In R.A.V. the Court said that legislatures may sometime pick and choose if they have a good reason. Thus, for example, “a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection) is in its view greater there.” And,

“[a]nother valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular ‘secondary effects’ of the speech, so that the regulation is ‘justified without reference to the content of the … speech.’ A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.

These bases for distinction refute the proposition that the selectivity of the restriction is “even arguably ‘conditioned upon the sovereign’s agreement with what a speaker may intend to say.’ ” There may be other such bases as well. Indeed, to validate such selectivity (where totally proscribable speech is at issue) it may not even be necessary to identify any particular “neutral” basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. (We cannot think of any First Amendment interest that would stand in the way of a State’s prohibiting only those obscene motion pictures with blue-eyed actresses.) Save for that limitation, the regulation of “fighting words,” like the regulation of noisy speech, may address some offensive instances and leave other, equally offensive, instances alone. [FN6: …we readily concede: that presumptive invalidity does not mean invariable invalidity, leaving room for such exceptions as reasonable and viewpoint-neutral content-based discrimination in nonpublic forums…]

Got that? The state can selectively ban some types of content, but only for good cause. The FTC found that commercial sales calls were 40-60% [is that all, ed?] of the call volume. It exempted non-commercial pitches because it thought that these messages had a greater First Amendment protection than commercial speech. Judge Nottinigham, however, held that in this context all the calls had some First Amendment protection, and also held that the FTC had failed to demonstrate any good cause for treating non-commercial requests for donations more kindly than sales pitches. The agency did not, for example, provide evidence that fraudulent sales calls were more likely than fraudulent pitches for fake charities. And, as far as the record revealed, he said, both are equally disturbing at dinner time.

It seems to me that a higher court would have at least three ways it could reverse this decision. First, it could read the passages from R.A.V. quoted above to find the authority to ban sales calls as a reasonable exercise of the authority to exercise “selectivity (where totally proscribable speech is at issue)” because “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” This decision would stress the existence of alternate channels of communications for ads—TV, radio, spam, junk mail. Comfort might also be found in the recent Watchtower Society v. Village of Stratton in which the Supreme Court apparently assumed, but didn’t hold, that door-to-door religious solicitation was entitled to a higher degree of First Amendment protection than might be available for salespersons.

A second approach would be to say that common sense suggests that sales calls are in fact more likely to pose a risk of fraud, or really are more disturbing at dinner time, and that justifies the distinction. This is less likely, as it isn’t usually possible to justify an agency’s decision based on something that was not on the record at the time the agency made the decision. On the other hand, if tomorrow’s edition of the Congressional Record were to show that the legislative history of today’s bills indicated that Congress believed that was the case then that might give the court of appeals all the excuse it needed. Or, better yet, if the matter goes to conference maybe upon re-passing the bills the sponsors or conferees could cook up some legislative history or additional congressional findings real quick.

A third approach would be to yet again try to untangle content discrimination jurisprudence, a task that would probably require a trip to the Supreme Court.

Whatever the route, though, the equities on this one are pretty strong, and I think a reversal is likely on one theory or another.

Text of the House and Senate bills

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry. (Introduced in House)

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry. (Introduced in House)
HR 3161 IH
108th CONGRESS
1st Session
H. R. 3161

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry.

IN THE HOUSE OF REPRESENTATIVES

September 24, 2003

Mr. TAUZIN (for himself, Mr. DINGELL, Mr. UPTON, and Mr. MARKEY) introduced the following bill; which was referred to the Committee on Energy and Commerce

A BILL

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. NATIONAL DO-NOT-CALL REGISTRY.

(a) AUTHORITY- The Federal Trade Commission is authorized under section 3(a)(3)(A) of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102(a)(3)(A)) to implement and enforce a national do-not-call registry.

(b) RATIFICATION- The do-not-call registry provision of the Telemarketing Sales Rule (16 C.F.R. 310.4(b)(1)(iii)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.

And,

S 1652 IS
108th CONGRESS
1st Session
S. 1652

To ratify the do-not-call registry provision of the Telemarketing Sales Rule, as amended by the Federal Trade Commission, effective March 31, 2003.

IN THE SENATE OF THE UNITED STATES

September 24, 2003

Mrs. FEINSTEIN (for herself, Mr. DEWINE, Mr. LEAHY, Mr. KOHL, Mr. SCHUMER, Mr. FEINGOLD, Mr. HARKIN, Mr. LEVIN, Mr. LAUTENBERG, Mr. VOINOVICH, and Mr. PRYOR) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

A BILL

To ratify the do-not-call registry provision of the Telemarketing Sales Rule, as amended by the Federal Trade Commission, effective March 31, 2003.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. NATIONAL DO-NOT-CALL REGISTRY.

(a) FINDING- Congress finds that the Federal Trade Commission was authorized under section 3(a)(3)(A) of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102(a)(3)(A)) to compile and implement a national do-not-call registry.

(b) RATIFICATION- The do-not-call registry provision of the Telemarketing Sales Rule (16 CFR 310.4(b)(1)(iii)(B)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.

Democracy In Action

Just a day after a district court judge ruled that the FTC exceeded its authority when it set up a national do-not-call list both houses of Congress have voted to give the FTC authority to establish the do-not-call registry. This is how the system is supposed to work, but so rarely does.

I’ve read the judge’s decision in US Security v. FTC, and I think it was defensible. There are two key moves in the case, both arguable, but neither obviously wrong.

The first key move is to say that because regulatory authority was shared between two agencies, the FTC isn’t entitled to the Chevron deference an agency usually gets when interpreting a statute, and that when viewed in this cold light the FTC’s authority to ban “deceptive…and other abusive telemarketing acts or practices” wasn’t intended by Congress (in 1994) to mean banning telemarketing outright, especially as the do-not-call list is run by the FCC not the FTC.

The second move, more dubious in principle, but perhaps compelled by Supreme Court precedent, was that Congress’s authorization—in the Consolidated Appropriations Resolution passed last March—of expenditures by the FTC “to implement the do-not-call provisions of the Telemarketing Sales Rule” was insufficient evidence of Congressional ratification of the FTC’s plan. The district court relied on Ex parte Endo, a 1944 Supreme Court decision which (in the process of ruling that US citizens of Japanese origin held in detention camps must be released forthwith) held that if Congress is to be found to have ratified by appropriation any part of the program of an executive agency, the bill doing so must include a specific item referring to that portion of the program. And that, the judge in US Security v. FTC held reasonably, if perhaps debatably, was not the case.

Endo, incidentally, was recently discussed in a brilliant article by my colleague Patrick Gudridge called Remember Endo?, 116 Harv. L. Rev. 1933 (2003). The article is currently online, alas, only at Lexis and Westlaw .

In any event, if Congressional intent wasn’t clear last week, it is clear today. The House voted 412-8 to give the FTC the authority, and the Senate vote was 95-0. Works for me.

Update: Hours after I wrote this, along comes a second district court decision striking down the do-not-call list on First Amendment grounds. I have some preliminary thoughts about that one.

Cruel and Probably Usual

Perhaps after the recent wave of heat-related deaths in Paris it will be clear just how evil this alleged conduct at the Krome immigrant detention center is: Worker claims ‘day after day’ he was ordered to turn off AC. We’re not talking just making people sweat here:

‘I don’t know how someone didn’t die in there because of the heat,” Novoa said Wednesday in a telephone interview. ‘Imagine 110 people in a room. There are no windows, only a door, locked with no air conditioning. Those poor Haitians… . When they saw me, they said `Please don’t do that to us. You are killing us.’ You have no idea how it made me feel.”

When he entered one of the buildings, Novoa said it had a stench of human feces and body odor.

Krome—perched on the very southern edge of settled greater Miami, nestled right up near the last of the open land and the Everglades—is a notorious facility in this community, one we like to pretend isn’t there. It is the site of repeated human rights violations (e.g. sexual abuse, attempts to deny detainees access to counsel, and general evil). It is amazing that in this community, more than most of America a cauldron of immigrants, we tolerate this. But of course, we’re mostly powerless, as Krome is not run by the locals but by the feds, and not just any feds but one of the two or three most loathsome bureaucracies in the US federal government, the Immigration and Naturalization Service (INS).

Stories like this—and even if this one turns out to be exaggerated or false, it’s only one of many—strain my general belief that evil institutions can turn good people bad. Perhaps a refinement is in order: could it be that one of the reasons that certain evil institutions are so evil is because they drive out the good people and attract those who either cannot find work elsewhere or who positively enjoy the evil?

Nor is this a story of a heroic whistle-blower: the matter is public only because a worker objected to being disciplined for failing to go along with it.

Sitefinder: The Biggest Internet Crisis You May Never Have Heard Of

Last week, VeriSign, the people who run the .com registry (the big data file that has all the .com registration data in it), unilaterally decided to change the way the most-traveled portion of the Internet works for most people. Until then, if you typed in a .com domain name that didn’t exist, you would get an error message. Unless, of course, you were an MSN or AOL subscriber, in which case you would get a custom web page they each designed, and which included some ads from folks who thought that they might profit from common misspellings.

Well, VeriSign saw a profit opportunity, and it decided to eat AOL’s and MSN’s and everyone else’s lunch by introducing its “Sitefinder” service. In the new .com, every browser typo, every attempt to load up (the technical term is “resolve”) a domain that didn’t actually exist, leads you to special pages designed and owned by VeriSign…and on which we are all invited to buy tailored advertising. [Sitefinder, incidentally, has the most unintentionally hilarious terms of service I have ever seen : a web page you go to by accident, and only because VeriSign made you, links to the adhesive assertion that “By using the service(s) provided by VeriSign under these Terms of Use, you acknowledge that you have read and agree to be bound by all terms and conditions here in and documents incorporated by reference.” But I digress.]

Naturally, MSN and AOL are unhappy. But the technical community is furious. The web is not the whole Internet, and there are many other Internet tools that rely on getting the standard error message when a domain does not resolve properly. VeriSign’s change threatened to break all those applications. [There are a lot of ccTLDs (national top-level domains like .ph) and one gTLD (.museum) that already do the same thing. But they are almost all very low volume, and their users were—in the main—forewarned before they registered their domains.]

The technical community responded by coding up changes to BIND, the dominant software for translating domain names into the Internet Protocol numbers that actually do the real work of identifying where the content you want is to be found, and telling the computer that has it how to find you. These changes essentially overtrump the VeriSign change. But fixes like this take time to deploy and propagate. It would be much tidier if VeriSign could be persuaded to put the cat back in the bag.

Meanwhile, the more formal part of the technical community also swung into action. The relevant Internet standards are defined by the Internet Engineering Task Force (IETF). The closest thing the IETF has to a governing body is a committee called the Internet Architecture Board (IAB). The IAB quickly issued a very careful and useful report. In effect, the IAB said that the relevant standards (called “RFCs”) are vague at the critical points, so thatwhat VeriSign did was not in technical violation of them. It’s just in very, very bad taste. (Ironically, the IAB is chaired by a VeriSign employee who quite properly recused herself from the issue.)

Unlike most of the Internet, the domain name system has a global regulator. That job falls to the Internet Corporation for Assigned Names and Numbers (ICANN), the body chosen for that role by the U.S. Department of Commerce (for a long, technical description and critique of the relationship, see my Wrong Turn in Cyberspace: Using ICANN to Route Around the APA & the Constitution and Jonathan Weinberg’s ICANN and the Problem of Legitimacy). Many people have thus looked to ICANN to force VeriSign to undo its change. Others bemoaned the fact that whatever ICANN was doing, its new streamlined processes meant that the public was cut out of its deliberations. An eloquent example of this is Michael Geist’s lament that Regardless of the eventual outcome, Internet users will look back on the day that Internet governance mattered and remember that they didn’t.

So far, however, ICANN, hasn’t done much. It issued a preliminary statement, which prompted a very unenlightening reply from VeriSign .

Now ICANN’s Security and Stability Committee has announced that it plans a meeting in Washington on October 7 to get input. That probably takes the pressure off ICANN to act immediately.

My sense is that is just as well for two reasons. The first is ably explored by Jonathan Weinberg at ICANNWatch. It turns out that under the trilateral (ICANN-VeriSign-US government) contractual regime negotiated by the US Government, ICANN probably lacks the authority to make VeriSign retreat.

There’s a second reason. ICANN isn’t democratic or accountable. In fact, we’re in this pickle partly because of ICANN’s own mistakes. The .com domain retains its importance and dominance for many reasons, but one of them is ICANN’s total failure to permit much in the way of meaningful competition for it, something that is and would have been entirely in ICANN’s power. It would be ironic and unfortunate to reward ICANN for its past failings by giving it new powers.

Some people will say that ICANN’s impotence in the face of a serious technical hiccup is a problem. I think the signs are that the technical community is doing a fine job of working this one out in (excuse the ICANN-speak) a spontaneous, bottom-up, consensus-based manner that is technically sound and will contribute to the stability and security of the Internet.

Or, in other words, if you never heard about this crisis, odds are you may never need to.

Even a technical solution, however, doesn’t mean that the lawyers will stay away from this one. Already two lawsuits have been filed against VeriSign, one by GoDaddy and the other by Popular Enterprises . Those suits may be nothing, however, compared to a looming patent infringement claim against VeriSign, as it appears that Sitefinder may infringe U.S. Pat. No. 6,332,158.

Is This Why the New York Times Seems Less Interesting These Days?

I thought it was because I was getting more of my news from the Internet, but articles like Miller’s Latest Tale Questioned, which recounts the behavior of a New York Times reporter who apparently shilled for the Iraq-is-full-of-WMD crowd, make me wonder if maybe the problem isn’t simply that the NYT just isn’t as good as it used to be.

Maybe they should bring back the old 8-column layout?

An Unexpectedly Weird and Slightly Guilty Pleasure

There is obviously something slightly egotistical about starting a blog—the assumption that someone, somewhere, maybe with luck a number of someones all over, might care about what I have to say. I was prepared to plead guilty to that one. In my defense I’d say that the primary purpose was more to join what seems to be an ongoing conversation rather than simply to climb a soap box.

That said, at least in these early and little-travelled days, it’s weirdly interesting and pleasurable to see who is linking to this site .

And one link in particular is just inscrutably odd and tantalizing. It reads, in its entirety, as follows:

"Prof. Michael Froomkin has a blog.
I will link to it
for reasons I cannot say."

Not For the Easily Queasy

This picture bothers me. In fact, this whole web site is disturbing.

I do not like it when my senses report things to me that are clearly false. I do not like it when staring at a picture induces seasickness. I do not like it one little bit.

9/11 Panel Seeks More Documents From White House

While popular attention is focused on whether (or, rather, how much) George W. Bush lied to stampede the country into invading Iraq, and blogging elites are comparing notes on the Administration’s bald-faced attempts to deny they ever, ever said there were weapons of mass destruction in Iraq, a much less-heralded commission is quietly fighting a bureaucratic war with the Administration. The outcome of that struggle will shape the final report of the National Commission on Terrorist Attacks Upon the United States —AKA the 9/11 commission, which has just issued its second interim report .

As the Washington Post reports, the Administration is stonewalling the 9/11 Commission for all it’s worth. It is not at all obvious how this one will play out, and some of the early signs are not good—according to the Post,

The slow pace in acquiring documents and testimony — along with the commission’s decision to refrain from issuing findings until it is closer to completing a report — has angered many families of victims of the terrorist attacks. Representatives from one group, the Family Steering Committee, issued a “report card” yesterday awarding the commission a “D” in most areas and urging it to better inform the public.

The 9/11 commission is co-chaired by former representative Lee Hamilton, a man of integrity, so there’s still hope for a fair and informative report. One to watch.

Justice Overwhelmed Is Justice Denied

I don’t teach Criminal Law. I’ve never practiced criminal law. But it doesn’t take much expertise to suspect that our criminal justice system is disastrously flawed. Stories like this one are, I fear, too routine. The hell of it is, large parts of the system are full of well-meaning people. Not all of them—no system is—but even so. The problems are, I think, systemic more than anything else.

Here in Florida, as in much of the nation, we have a prison-building craze; meanwhile, the United States already leads the world in the percentage of its population behind bars. According the Justice Dept. there were 2,019,234 people incarcerated last April. It’s probably more now. And let’s not even get into the racial composition of the prison population, or the racial (and electoral) consequences of felony convictions.

The callousness of the justice system is in some part—although how big a part is a nice question—a result of its being overloaded and under-funded. And while throwing more money at the problem might improve the job prospects for graduating law students, something I am generally in favor of, I don’t think that there is any chance this state, or this nation, would spend what it would take.

The US is a diverse, mobile, multi-cultural society. Those are among its strengths. As a result of these properties, however, it probably lacks some traditional means of inspiring self-regulation and order among its citizens that exist in those increasingly rare homogenous nations with strong national traditions governing public and private behavior. Indeed, the US is composed of citizens who probably don’t all share the same exact idea of what that regulation and order should look like. In those circumstances, I’m prepared to believe that the US may need to regulate through crime more than might otherwise be necessary in, say, Japan.

But not this much.

The choices are inescapable: either we live with a broken system, or fund the system, or take some of the strains off the system. The first is likely, but horrible. The second is unlikely and would probably mean de-funding something else that we need. So I’m tentatively persuaded that we need to investigate the third option. That means a painful conversation about which things we currently call crimes might be taken off the statute books. And what sort of investments other than in new prisons (schools! teachers! schools! teachers!) might make the taxpaying life seem more realistic and attractive to the young people who commit a disproportionate share of violent crime.

If the deal were, decriminalize all so-called victimless crime (drugs, mainly), spend part of the savings on schools and teachers, and part on having more cops walking dangerous streets to make them safe enough for old people to walk without fear, I’d take it in a minute. But no one is offering me that deal. It may be because drug laws are the true third rail of politics. Or, it may be that the problems go a lot deeper, and that wouldn’t be enough. OK, now I do need an expert…

The Strange Case of the (Mostly) Invisbile Archive - A Movable Type Glitch?

I’m having an odd problem with Movable Type, the great free software that powers this blog. The template that provides the monthly archives is acting up. It works fine in Mozilla—showing me the whole month’s worth of stuff—but when I test it in IE (under Windows), it only shows the earliest post for the month. Yet, when I view the source code, the text for the month is all there. It’s just not getting shown by the browser. I’ve downloaded the archive page, and the same thing happens when I view it as a local file. (I suspect I’m having a similar problem with the daily archive but haven’t tested as much.)

Anyone out there who can shed light on this?

Update: Thanks to a very helpful reader, it’s fixed! It seems I had a bad closing-comment tag, and IE is just fussier about those.

The Entire US is A Free-Speech Zone

I’ve been waiting for this lawsuit. I cannot conceive of a Constitutional theory that lets pro-Bush demonstrators near the President and restricts anti-Bush demonstrators to far, far away. That’s called “viewpoint discrimination” and it’s almost always illegal when the government does it (but almost always legal when private citizens do it).

OK. I can conceive of arguments the government might make, including something about relative chances of riots or whatever. I just can’t conceive of those arguments standing up in court. What’s that? The anti-Bush demonstrators are more likely to be violent or dangerous? You never saw a terrorist pretend to support something?

And calling the waaaay off-site zones to which protestors are relegated a “free speech zone” or a “protest zone” just adds insult to injury.

We Have Great Students

It was only a matter of time. Although U.Miami law school does not, as of yet, provide hosting for student bloggers, we have our first student blogger. (At least, the first I know of.) What a joy to find, via the referrer function, schteino.com.

I suppose some professors might find the idea of students commenting about them online to be a little threatening. I’m of the other view: I’m always curious to know what it looks like from the other side of the desk, and while I much prefer bouquets to brickbats, if the only choice is being criticized behind my back or to my face, I’ll take it straight on please (as long as it doesn’t seem likely to become physical anyway).

None of this is to suggest that Mr. Schteino is complaining or even being particularly personal about anyone. It’s early days, as Mr. Schteino is a 1L, but so far—and despite his claim to be a “Cynical 1L Hoping and Dreaming”—he seems like a fairly happy camper.

Gotta Love South Florida

The Miami Herald reports that in Miami-Dade it is illegal to own a “dyed or artificially colored rabbit or other animal, baby chicken, duckling or other fowl.” It also tells us that the South Florida building code includes a “structural specifications for rubber contraceptives” that someone “slipped in as a joke” just after the “Methods for deep, quasi-static, cone and friction-cone penetration test of soil.” The mind boggles.

Virtual Worlds Talk Moves at Warp Speed

Lots happening on the Virtual Worlds front. Our paper on Virtutal Worlds, Real Rules has generated some interesting comments. Over at Crooked Timber, Henry Farrell suggests in More Broadswords, Less Crime? that the experiment we propose has already been run once, with an ugly result:

My tuppence worth: one theory has already been ‘tested’ in this way; the argument that easing restrictions on weapons and their use will lead to a drop in violent crime. If you grant the assumption that MMORPGs are analogous to everyday life (a whopping assumption to be granting, I’ll admit), then the evidence is unequivocal. A society where each can use weapons against each without restriction is likely to deteriorate into Hobbesian anarchy. People will positively beg for a Leviathan to come in and put an end to the Warre of All against All.

I think this is intuitively plausible (although very sensitive to the counter-argument that people choose to play violent games precisely to do things they would never do in real life—an argument of unreality that might not damn experiements based on more realistic representations of ordinary life), although I have to admit that a lot of work is done by the word “and” in the phrase “easing restrictions on weapons and their use”.

Over at Yale’s Law Meme James Grimmelmann offers a fascinating account of the popular tax revolt in the game Second Life . I was particularly intrigued by this story because some of the most thoughtful commentators on our Virtual Worlds paper have asked whether this online environment is one that could be used to empower participants instead of using them as glorified lab rats. Is there some way the participants could be empowered to self-organized, create new governance structures, meet to plan new modes of production, or collaborate in ways? These are all tantalizing thoughts, but my cautious reaction has been that that’s for version 2.0—we need to start with slightly less grand ambitions. Reading the Second Life saga makes me wonder whether I’m being too tame.

And, at TerraNova , Greg Lastowka suggests in The Author as Autarch that there is an even greater obstacle to using Virtual Worlds to experiment with Intellectual Property (IP) rules than the one we contemplated:

…a bigger problem with using virtual worlds as testbeds for experimental intellectual property rules is that virtual worlds are intellectual property. Putting aside trademarks, patents, and other relevant forms of intellectual property, software is protected by copyright. The copyright is not just limited to a game’s source code and object code, but also extends (to an unclear extent) to other salient aspects of the program.

Here, I think I disagree. While it’s certainly right that there are some IP obstacles to using existing games as research tools, if one is setting up a set of parallel games to serve as testbeds for legal rules then rather than be subject to IP constraints one is actually aided by them. Our suggestion is not that experimenters should colonize existing versions of Ultima Online or something and run trials on them. The idea is to purchase the rights to an existing game engine, customize it, and then run parallel versions of the game, or perhaps to license some shards/facets of a game and customize them. Any serious attempt to use Virtual Worlds to test legal rules will require careful design, and a control group. The IP issues will get sorted as part of the design process.

Meanwhile, New York Law School’s Institute for Information Law and Policy & Yale Law School’s Information Society Project are planning a conference on “The State of Play: Law, Games and Virtual Worlds” to be held in New York city, Nov. 13-15. They’ve now posted their tantalizing conference program .

Marshmallow Farming in Delaware

From time to time I plan to post mini-reviews of blogs I like. I like a number of the ones you see linked to all over the place, but there are also some less well-known, quirky and human ones that appeal to me. One of these, although far from obscure, is called Sneaking Suspicions. I like it for several reasons. The author is a practicing administrative lawyer who lives in a small town, Rehoboth Delaware. I teach federal administrative law, and it’s fun to see someone talking in a level-headed way about applying the stuff I teach to practical contexts. That he does state admin law makes little difference to the fundamental principles. Plus, Rehoboth was where we went to the beach when I was a kid. I didn’t (and don’t) particularly love going to the beach—in some ways Miami is wasted on me—but I it’s fun to have a tie to the place being talked about. Perhaps what I like best, though, is the reasonableness of it all; Fritz Schranck, the author, reads the advance sheets (recent court decisions), and makes wry and sensible comments on the foibles of the often somewhat unreasonable litigants.

And then, there’s the occasional off-the-wall item. As Washingtonians, our taste of Delaware was limited to the coast. Who knew what delights were hidden inland? For example, my kids were very impressed when I showed them the picture of the Marshmallow Farm.