Author Archives: Michael Froomkin

Clinton Attack: Salvo 2

Another doozy.

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Clipper Chip on Ebay

clipper-s-l1600A guy is selling a T TSD 3600 Pair Clipper Chip Version New in Box Unused on E-Bay.

I have a birthday coming up, but the asking price is $250, which is just a bit too expensive. And I imagine the price will go up. Plus it sounds like they’d be hard to use, too.

Spotted via Scheier.

(Why do I care? The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution, 143 U. Penn. L. Rev. 709 (1995) and It Came From Planet Clipper, 1996 U. Chi. L. Forum 15.)

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Clinton Fires 1st General Election Salvo

trump-uniterClinton calls Trump a unifier.

Click the link, it’s worth it.

PS. If anyone knows how to embed that sort of video in WordPress, please share. Never mind, the Clinton people provided one.

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Got Me

Toll-a-paloozaDolphin Expressway to be Converted to 15 Consecutive Miles of Toll Booths

The Miami-Dade Expressway Authority (MDX) announced on Monday that it plans to greatly expand the number of toll plazas along State Road 836. The plan, which will take thirteen years and cost upwards of $1.4 billion dollars, will see 60 new toll installations along the 15-mile expressway. The design was unveiled to the County Commission and Metropolitan Planning Organization to resounding applause by an unnamed representative of the MDX, a Borg-like collective comprised of 13 assimilated, unautonomous board members.

This came up on my RSS feed, and I was really believing it, especially given the photo of the Sunpass scanners, until about the end.

Actually, like much great dark humor, it expresses a deeper truth.

Bonus dark: Mayor Gimenez to Open Manatee Hunting Season in Miami

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Carter Coal Lives

trainstatusThe DC Circuit issued a major separation of powers ruling today in Ass’n of American Railroads v. DOT. The main part of the opinion adopts a view of the non-delegation doctrine that I explained and relied on as part of the argument in my article Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), so I’m glad about that–at least in principle; whether these facts justified invocation of the doctrine I leave for others to decide. The legal issue was whether in addition to the well-known and now rather (but not utterly) toothless non-delegation doctrine that limits the breadth and discretion that Congress might give a federal agency, there is a parallel doctrine, rooted in the Due Process Clause and in the Carter Coal case, that prevents Congress from giving public regulatory power to self-interested parties who might then wield it against their competitors.

To reach that doctrinal point, the panel (Judge Brown and Senior Judges Sentelle and Williams), had to decide that Amtrak is not a governmental body for Due Process non-delegation purposes. I’m not so sure about that given the previous decisions of the Supreme Court relating to Amtrak, which have treated it as governmental for other purposes.

I have rather more serious doubts about the panel’s alternate holding that the arbitrator who could have been appointed to settle disputes between Amtrak and the plaintiff railroad would have been an Officer of the United States, and not an inferior officer. There are two issues here, both en banc and cert bait. First, there’s the question of ripeness. The panel argues that this is a structural violation, and that even the threat of an improperly appointed decision-maker down the road so taints the process that it must be thrown out before it is even invoked. That is plausible, but not compelling. More difficult to swallow is the method by which the panel decided that the official in question was not inferior but a full Officer. Suffice it to say that the panel got there from what amount to first principles, a process that (too conveniently) ignored the two major modern Supreme Court cases on the topic. If those cases, Morrison v. Olson and Free Enterprise Fund v. PCAOB had not existed, the panel’s opinion might be hailed as a model of clarity and simplicity. As it neither cites nor, I would argue, much follows them, I think the case for further proceedings may be strong.

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Mysteries of Twitter (II)

Question-markEach section of JOTWELL is set up with a basically identical wordpress blog. (Don’t ask why, there were good reasons to do it that way when we started.)

Each section forwards posts to twitter via Twitter Feed. The tweets appear at the Jotwell twitter feed. Most of them look terrible — the user photo we run is blown up to show a gigantic close-up of the author’s forehead! But some don’t. They look just like they should. I can’t figure out what’s different about them.

Bonus puzzle: Back in 2011, one Jason Otwell grabbed the “Jotwell” handle on Twitter. He posted once in 2012, once in 2014, and once in 2015. I’d like to ask him if he’d donate the account to us – it would be a good deed and might be worth a charitable donation. But either I can’t locate him, or can’t get him to return my snail mail or email. How do I figure out how to communicate with him?

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Mysteries of Twitter

Something is duplicating my blog posts on Twitter. Or rather, two somethings.

Doubtlessly, they are both things I set up myself some time long in the past, set and forgot. Now I have to reverse engineer it to figure out what they are.

The one that makes nicer posts is Twitterfeed. I want to keep that one and kill the other one. But I not sure what the other one is. Presumably it should show up in the — shockingly long — list of Twitter Apps I’ve enabled, which is how I cottoned on to Twitterfeed. Perhaps the other is WordPress’s native twitter feed which I hope I’ve disabled.

This post will tell.

(Of course the real mystery of Twitter is how I ended up on the list of Top 50 Law Professors to Follow on Twitter, when almost all my Tweets come from this blog…. Oh well, I’m near the bottom, maybe I’ll fall off next year.)

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