Supreme Court Grants Certiorari in Hamdi
The Hamdi and Padilla matters are an opportunity for the Supreme Court to make clear exactly where the line is between military operations and civil rights. This morning, the Court agreed (against the wishes of the Bush Administration) to hear Hamdi's appeal. A petition for certiorari has yet to be filed in Padilla, which went the other way in the Court of Appeals (that is, Padilla won the right to counsel, among other things). It is still possible for the two matters to be consolidated, but my gut instinct is that the Court wants to decide Hamdi first out of concerns for judicial economy. If it decides Hamdi in favor of the purported terrorist, that perforce affirms Padilla, because the only real distinction in Hamdi is where the defendants were captured. Mr. Hamdi was captured abroad; and the court cannot logically deny to Mr. Padilla (who was captured in the US) any civil right it accords to Mr. Hamdi.

Leaving aside for the moment the counterproductivity of denying counsel to US citizens accused of terrorism, it is important for the Supreme Court to decide this one way or the other. Everyone is operating in a vacuum here, because this is the unconsidered case under what is supposedly the controlling decision: In re Quirin. The problem there was that the saboteurs were captured in the US—but were not US citizens, and were captured years before the Sixth Amendment right to counsel was fully incorporated (let alone the right against self-incrimination).

The irony is that the military is actually more aggressive in promoting the right to counsel than is the civilian community. (At least in the real military, which excludes the Department of the Navy. But that's for another time.) The defense counsel assigned by the Air Force and Army are ordinarily highly experienced, extemely competent, truly independent attorneys, who have pretty much carte blanche to do what they need to do in discovery to prepare a defense. Contrast that with the often-inexperienced, overworked, subject to the whims of local government funding public defender system in this country, especially in any context requiring forensic or expert evidence! The right against self-incrimination is also stronger under UCMJ Article 31 than the "Miranda warnings" we've heard too many times on TV detective shows. (I've actually seen investigators and officers suffer poor performance ratings for violating Article 31 in the name of expediency.) All of which tends to point out that this is a political issue, not really a question of military justice.

If it's a political issue, it is therefore squarely within the competence of the courts, as opposed to the purported unique authority of the executive branch over military affairs. This is the whole point of what Mr. Hamdi and Mr. Padilla are asking for: notice, counsel, and a hearing. One might also wonder if retribution and vengeance have overcome whatever real desire the politicians (elected and otherwise) controlling the matter have had to obtain information—because without a right to counsel, it's virtually impossible to make a deal for immunity (qualified or complete, use or transactional). As any experienced prosecutor or commanding officer will tell you over a beer—and as implied by the recent attempts at plea-bargain deals appearing in the Enron matter—prying open a moderately competent conspiracy almost always requires either a mole or turning a member of the conspiracy, and offering immunity is the biggest carrot available to the latter. Prying open a truly devious and well-run conspiracy definitely requires turning a defendant; look at the history of the various Gotti trials until Sammy the Bull came forward. The evidence was actually stronger in some of the earlier cases; but the impact of a turncoat conspirator, even on a bench trial, cannot be underestimated. (If it wasn't so important, why would there even be a "conspiracy of silence"?)

A few words on stupid lawyer regulation tricks…

I was reminded recently—by having to tell a new client that yes, his previous attorney had committed malpractice when reviewing a literary contract because the previous attorney didn't know publishing law, but no, he couldn't sue because the statute of limitations ran ten years ago (and the lawyer has been dead for five years)—that the various state bars are stupid about lawyer specialization. Oh, damn. I used the "s" word regarding something other than patent law, which means that I've committed a technical violation of the Rules of Professional Conduct; . <SARCASM> The only thing that too many lawyers specialize in is "ka-ching!" (billable hours). </SARCASM> In the ridiculous opinion of the constipated old white men who decided on this (back in the 1970s, as far as I've been able to determine), it would deceive the public to say "specializes in" unless there is some kind of certification involved. It's probably just serpent envy; that's how the medical profession does it. Wait a minute—we're the cold-blooded reptiles here… In any event, a lawyer may say "concentrating in;" a lawyer may "restrict his/her practice to;" but a lawyer may not say "specializing in."

This is one of the most inane elevations of form over substance that I've seen in a long time. It even exceeds the vast majority of what I observed in the military bureaucracy. My new client had gone to a local lawyer who had been recommended by a neighbor after a residential property dispute. He thus got a residential real estate lawyer's opinion on contract language concerning payment for and control of dramatic adaptations—with all the accuracy one could expect. The reality is that lawyers are probably far more specialized than are doctors. Have you ever heard of an ENT specialist who only works on the left side of the throat? On the other hand, have you ever heard of a plaintiff's-side personal injury lawyer whose advertising makes clear that he primarily sues railroads and trucking companies for vehicle collisions? I know of a whole firm of the latter, and I'm not even referring to Madison County.

Dammit, I am a specialist, and the technical rules can go to hell. If I ever get charged, I'll sweetly ask why they're looking at a technical violation, particularly when I am specifically disclaiming any board certification, when they admitted even this individual (Professor Bainbridge is probably still trying to forget him, as the description in that opinion is inordinately generous) to practice in the first place. We deceive the public more by pretending that virtually every lawyer is at least minimally qualified to handle virtually every matter than we would by admitting that we specialize, even without "board certification." The same goes for law firms. For example, even though there are several hundred lawyers at [name of major Chicago firm masked to protect the innocent], many of them good ones, that firm is absolutely the wrong place for an individual creator of intellectual property to seek counsel. Even when there is no actual conflict due to some of the other clients of that firm, it is so pro-publisher by nature that the advice it provides would at least be suspect.

Originalism, Copyright, and the First Amendment

Professor Solum (Legal Theory Blawg) recently blawgged a panel on "copyright and the First Amendment" held at the annual American Association of Law Schools convention. His closing comment (I apologize for the length, but I want to be sure to include all relevant context) is:

[Professor Neil] Netanel [of the University of Texas Law School] thought that it was completely obvious that the [F]irst [A]mendment must create a "liberty right" that limits what would otherwise be a plenary copyright power. (The world "plenary" is mine, not Netanel's.) Netanel's view accords with the contemporary (post New Deal) understanding of the relationship between Congress's Article I powers and the Bill of Rights. The modern view is that Article I creates an ocean of power in which the Bill of Rights provides islands of liberty. The original understanding, at least in its Madisonian version, may have been quite different.

Suppose that the Framers saw the relationship between Article I power and the Bill of Rights differently. Suppose they saw islands of power in a sea of liberty. Suppose they believed that the [F]irst [A]mendment's primary function was to reinforce the message of Article I: that the powers therein granted were limited and properly construed simply would not give Congress power to restrict the freedom of speech or of the press. That is, suppose that the original understanding was that the Article I powers contained internal limits that, if respected, made the collision between freedom of speech and copyright impossible.

Given this understanding of the [F]irst [A]mendment, the first question we ought to ask is how the copyright power could be construed so as to provide internal limits on that power that avoid any collision with freedom of speech and press. With this point in mind, it is interesting to consider the first copyright act which is dramatically narrower than current law. The term was much shorter—a maximum of 28 years. More importantly, the scope of copyright itself was narrower—for example, no derivative works were covered. Given this narrower understanding of the copyright power, the kinds of examples that Netanel discusses simply would not arise.

On the original understanding of the copyright power, it is not clear that there was any possibility of collision between copyright and freedom of speech. Perhaps the key to understanding the copyright power is to construe that power so as to avoid collision with free speech values.

"Blogging from Atlanta 05, Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment" (06 January 2004) (italics in original; boldface mine).

This is a short, coherent, considered discussion of a very difficult question. I think the implicit assumptions—commendably and (unfortunately) unusually for most writing that proposes "originalism" as the "correct" interpretive model—are pretty clear, and actually pretty explicit, in Professor Solum's analysis; with one exception that swallows the rule. That exception is a comparison of apples to oranges that rages throughout the entire debate on "copyright v. First Amendment": That we are comparing a discretionary statutory implementation of a constitutional power to an imperative constitutional restriction.

Even without worshipping at the altar of John Marshall—who was himself a figure in the War of American Secession and the drafting of the Constitution, and thus has a better claim on "original understanding" than do most commentators on the concept—the idea of originalism as constraining Congressional implementation of one of its inchoate and ill-defined powers (ironically, one of the better-defined ones in Article I, § 8) does not hold up to careful analysis. We need not rely just on the concept that "it is a Constitution that we are expounding" (see generally this new book for general readers). The real problem is not that there appears to be a collision; it goes beyond identifying such a collision, a difficult task in itself, to identifying its behavioral cause(s).

The First Amendment has no behavioral predicate. The Intellectual Property Clause (Article I, § 8, cl. 8) does:

[The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

(emphasis mine). Without resorting to "originalism" in understanding what a "limited Time" or an "exclusive Right" or a "Writing" or a "Discovery" meant to the Founders—and these are all important questions—Congress can do nothing that does not "promote the Progress of Science and useful Arts" under the authority of the Intellectual Property Clause. But, within the constraints otherwise, it is left to Congress's judgment to decide what will do so. Even though the First Amendment's command to "make no law" has never been so construed, even by Justice Black, the presumption is completely inapposite. It is not contradictory; it is normal to the curve. (What this says about Second Amendment jurisprudence is better left unsaid, because I'm not trying to attract gun nuts and their opponents!)

Something that I find interesting, and rather disturbing, in the whole debate (both as described by Professor Solum and in a wider sense) is that only a few of Congress's redefinitions get much attention at the Constitutional-interpretation level. We argue about what is a "limited Time" (Eldred), we argue about whether derivative works ought to be covered as part of "exclusive Right[s]" or perhaps as a "Writing"—and that's about it. We don't argue about some of the behavioral judgments that have crept into intellectual property law, often in contradictory ways. Consider, for example, the difference between how the Copyright Act defines "Author" and how the Patent Act defines "Inventor," and ask whether those definitions are consistent with themselves, with the Constitution, with common sense, or with anything else. I am particularly disturbed by this passage:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title…

17 U.S.C. § 201(b). Congress has here redefined the term "author" away from any reasonable "originalist" understanding of the term—because the concept of the "work for hire" did not exist in the late 18th Century. The definition of "inventor" is more convoluted, but raises the same question. Correlating those problems with the behavioral predicate of the Intellectual Property Clause creates some interesting questions about collisions with the First Amendment that seem well under the radar of the debate, but at least on initial examination seem to be root causes of any perceived collision.

A grouchy note on links to newspaper articles:

For the sake of those of us who:

   
• Use a dialup connection, either at "home" or on the road;
   
• Give a rat's ass about security, particularly Flash graphics and popup windows that evade popup stoppers;
   
• Surf with graphics turned off to keep pages small and advertisers unhappy, but want to read the pieces without struggling with missized graphics boxes;
   
• Want to read long articles on a single page; and/or
   
• Have visual impairments,

please consider making blawg links to articles at notoriously ineptly designed news outlets (the Post, the New York Times, CNN, and the Chicago Tribune being among the worst offenders) point to the "printer friendly" version of the article. If I really need to go back and see a graphic, I can subtract the code from the page right up in the address bar; but I can't necessarily click through directly. You've probably noticed by now that I try to practice what I preach on this issue.

This has been a public service announcement on behalf of the Medicare vision-correction fund that we'll all need if the current generation of "web designers" doesn't get their heads out of their asses.

Well, looks like the scarcity will continue a bit longer than I thought. Doing an adequate precomplaint investigation disclosed other—much worse—misconduct. Hopefully, I'll be back to my charming (???) self by Tuesday or Wednesday.

I'll be scarce for the weekend due to professional responsibility. Something that I like to think I have; and that three practicing attorneys will shortly find out they lack. Then there are the other two out of state…

Living and practicing in a state with a very strict interpretation of Rule 8.3 and 8.4—see In re Himmel, 125 Ill. 2d 531 (1988) (suspending an attorney for failing to report another attorney's misconduct at the direction of his client to protect a restitution stream from prior conversion of client funds)—can be an annoyance. Of course, it can also be a sword; given my low opinion of the profession, the annoyance is only the time spent on putting together the complaint, not making the complaint itself.

Professor Bainbridge notes:

Values-based partisanship strikes me as being far more likely to result in sharp political polarization than economic issues. It's a lot easier to get emotional about, say, abortion than NAFTA. We tend to lose sight of that in the blogosphere because a disproportionately large shares of the opinion-setting bloggers have a libertarian outlook. There are few culture warriors of the right among the elite blogosphere. In the country as a whole, however, the culture wars rage unabated. As long as they do, our politics will remain pretty nasty.

"Political Polarization" (02 Jan 2004). The Perfesser is correct on this point: there is a great deal of diversity in economic philosophy at any given "values point". Whether the converse is also true is less apparent, and certainly is less intuitively reasonable.

I think what this really points out is the limitation of "enlightened economic self-interest" as a predictor or motivation for "values-based" social philosophy. A quick look at the "Rockefeller Republicans" should be sufficient here; and, conversely, the extremely conservative social values among some of our poorest citizens (such as Appalachia) suffices on the other wing. In each case, significant groupings espouse(d) social values that are at odds with their immediate economic self-interest. Were/are they, then, unenlightened? Perhaps so; but perhaps that means that "unenlightened" has nothing to do with the Enlightenment. In other words, just like so much else in the English language (recall my comments on equity from my perspective as an ESL lawyer), we're using the terms "enlighten" to mean contradictory things. "Englightened self-interest" means "aware of immediate and intermediate, and probably longer-term, behavior to maximize personal wealth." "Enlightened" in the sense of the "Enlightenment," or in "enlightened social values," however, means "aware of immediate and intermediate, and probably longer-term, behavior to maximize the social utility of individuals and groupings of which the thinker is not a member." Or something like that; the latter is roughly translated from Wittgenstein.

This is certainly sufficient as an explanation of how demographics sometimes "surprise" one. One would think, at first blush, that marital status would have little or nothing to do with the political preferences of female churchgoers. Positing that the "self" of married women is partly psychologically, partly legally, but not completely inclusive of the spouse—therefore enlarging the scope of economic self-interest and diminishing the scope of Enlightenment—seems to go a long way toward understanding this. Social factors probably indicate a lesser correlation with men, if only due to historical antecedants that have made men "more independent" (and religious doctrine in most Western religion that gives men a greater decisionmaking role).

At a more disturbing level, one might also posit that married women have a smaller conception of "us" than do single women; but that is getting into stereotypes and areas in which nobody can get funding to do anything rigorous (if it would even give a result!), so we'll just leave it there. Again, looking at the male counterpart would probably be less rewarding in an academic sense.

Update on Creative Arts

Contrary to the news report cited below, I have not been able to confirm that a bankruptcy filing for Creative Arts has actually been made. Don't touch that dial (or digital tuner in this day and age)! This would not be the first time a bankruptcy had been "threatened" by a vanity press to reduce criticism of it.

And Another One Gone…

Another publisher down the drain. No tears shed this time, though; it's a vanity press.

Yes, I know that Creative Arts Books of Berkeley has a long "history," and claims to have done only "cooperative" publishing. However, "cooperative" publishing is just a fancy way to say "slightly less expensive vanity publishing"; and despite the company's continued trumpeting of some of the relatively prominent authors it has published in the past, including Aldous Huxley (N.B. I've read it; it wasn't ready for publication), in the last few years it has become essentially a vanity press.

And now it has filed for bankruptcy. Given just how many naïve and downright ignorant writers there are, it must be hard to go bankrupt as a vanity press.

Can you hear the world's tiniest violin playing over here at Scrivener's Error? Probably not—I won't even give a vanity press that tried to deceive authors as to the nature of what they were getting involved in that much schadenfreude credit. You'll just have to wait until Ten Percent of Nothing comes out in May to see why (note: that link won't work for a while yet; you'll need to go to the Southern Illinois University Press to see what I'm talking about.)

Another Brick in the Wall???

At Slate today, Stewart Baker (former general counsel to the NSA, so he should in theory know something about what he's talking about) properly notes that there were structural reasons that impeded (not necessarily, as he implies, prevented) the apprehension of two or more of the 9/11 terrorists.

The country and its leaders have had more than two years to consider the failures of August 2001 and what should be done. In that time, libertarian Republicans have joined with civil- liberties Democrats to teach the law enforcement and intelligence communities the lesson that FBI headquarters taught its hamstrung New York agent: You won't lose your job for failing to protect Americans, but you will if you run afoul of the privacy lobby. So the effort to build information technology tools to find terrorists has stalled. Worse, the wall is back; doubts about legal authority are denying CIA analysts access to law enforcement information in our new Terrorist Threat Integration Center. Bit by bit we are recreating the political and legal climate of August 2001.

"Wall Nuts." With all due respect, Mr. Baker, you've identified the wrong problem.

[Carefully speaking around the restrictions in my NDA…] The difficulty is not with walls inside the FBI. The difficulty is that the culture of the FBI is simply not adaptable to preventive measures. The FBI is pretty good at dealing with matters after the fact—that is, catching criminals after the crimes have occurred. But its training, its leadership, its culture, and its capabilities are simply not appropriate to preventing serious actions, whether petty crimes or terrorism.

Unlike every other Western democracy, the US has no nonblack agency that is staffed with intelligence personnel that is also allowed (and indeed encouraged) to run domestic operations. (Aside: This is one of the most outlandish inventions of Fox's 24.) The problem is not the wall between criminal and counterintelligence investigations. The problem is that we don't have both an MI5 and an MI6. The CIA, the NSA, and the DIA are all chartered for foreign operations only. The wall is necessary precisely because when they do have information relevant to work inside the US, they have the mirror image of the FBI's problem: they have little or no training, culture, or capability to work within the civil rights accorded within the US.

To put it another way, the problem is not that the information didn't get to the right people; it's that we don't have the right people. Our structure omits an agency to handle domestic counterterrorism that does not report principally to a law enforcement agency, and then to the Attorney General. This is the wrong command structure; and, if nothing else, the problems at Desert One and in Grenada and in the Beirut barracks should act as obvious, harsh, unclassified lessons in the consequences of improper command structures.

My gut instinct is that Mr. Baker might have liked to comment on this issue, but that his NDA is even more restrictive in that aspect than is mine. If one looks at his rhetoric, he carefully does not say that the wall must be torn down within the FBI. The irony is that a separate agency would actually be easier to control and train in terms of respect for civil liberties—the fact that it might fill the same role as the Okhrana (the Czar's secret police) does not mean that it must behave the same way.

The Return of the Historian

I'm afraid that I'm more of a history geek, particularly about military history, than is Professor Bainbridge. For the moment, leave aside that the strategy and tactics of The Lord of the Rings (book or Jackson's film, for different reasons) reflect considerable ignorance of what it takes to actually support a warfighting force, even for a short campaign. For example, if one does the math, based upon preindustrial North European agricultural productivity, and allows for the losses at Helm's Deep, Rohan's population must have been somewhere between that of England and France in the 12th century to send forth 6,000 mounted warriors with hope for more who didn't show—and neither the books nor the films support that great a population density. We'll also leave aside the tactical and strategic ineptness of the leaders on both sides—because, with very few exceptions, that is realistic. If Sauron or Saruman had any sophistication at all, they would have just beseiged their targets instead of storming them; Theoden would not have charged downhill into a force that had clearly already broken into the city; and so on.

I think the most logical antecedant for Rohan, though, is the pre-Muscovite Finns and Swedes. One of the great virtues of Eisenstein's Aleksandr Nevsky—aside from what is quite possibly the greatest score ever purpose-written for a film—is that there is substantial historical evidence behind it. The Battle on the Ice most probably did occur very much the way it was filmed; the "Viking" invaders were Finns and Swedes, historically; and virtually everything else fits the Rohirrim culture, except the numbers involved.

As a lesson in numbers, consider this: The English army at Agincourt (St. Crispin's Day, 1415) numbered between 4,500 and 5,500 total, with less than a thousand "men at arms" (think Gondor's footsoldiers). It was opposed by a French force of between 8,500 and 14,000 (some estimates go much higher, but the records of the baggage trains don't support them), about one-third mounted and virtually all foot close to the "man at arms" standard. Those two forces represented respectively 60-70% of the field military forces of those nations at that time.

To quote another of my favorite (underappreciated) movies:

You've got another scene. I'll write you another scene. It won't make a damned bit of difference. The studio'll cut 'em all out like they do everything else. All you'll have left is a bunch of swell battle scenes—which, when I was back there last time, they said looked just terrific.

In a nutshell, that's what's wrong with Jackson's The Return of the King, which I found a disappointment. Given the competition, it's still a comparatively very good film—but it's not nearly what it could have been.

…Don't Have to Be Like a Refugee

Ah, the follies of the MLA—whose conventions are "like a prom for geeks, except nobody gets laid." (Nobody is a bit of an overstatement—but not much.)

I left the MLA in disgust in the early 1990s after one too many presumptive attacks on me—variously, for the sins of having a Y chromosome; for having a Y chromosome without being gay and still making an effort to understand GLB perspectives; for having the appearance of a Caucasian-American; and (perhaps worst) for having the haircut, civilized manners, and uniform of a military officer. Those, plus my attempts to treat speculative fiction from a serious literary perspective, were a few too many instances of allowing books to be judged by their covers—by people who had no intention of reading the books to see if their initial impressions were correct.

So I am a refugee. I never did finish that dissertation; but that was for good and sufficient reason related to Uncle Sam's requirements. The problem is not with literary studies; it is with the ridiculous tenure process in academia, which requires "significant" advances to the field and considerable publication (all too often before the whole piece has been adequately thought through). Because the canon of acceptable subjects for publication in literature is relatively closed (at least, it grows nowhere nearly as quickly as the amount of literature worth studying grows), that forces untenured faculty members to take more and more outrageous positions—even when they don't really believe them—to satisfy the "publication" requirements, and it gets even worse when trying for promotion after achieving tenure.

Some of this is the academic equivalent of penis envy, of the natural and social sciences. The advances in understanding (even with the undoubted errors on the path) in the natural and social sciences over the last century have comparatively so far outstripped the humanities that scholars in the humanities feel a need to do something—anything—to look like they're also advancing at a comparable rate. An individual with a fresh bachelor's degree in chemistry today knows more chemistry, and knows how to do more chemistry, than all but a handful of PhDs from 100 years ago. The same goes even for that most dismal of sciences (economics). One cannot say that for the humanities. I believe this is because we're lower on the learning curve for the humanities; many cynics (including too damned many university chancellors who should know better) believe that we're too far along the learning curve, and there isn't enough more to discover, so we should just cut out the English department and hire adjuncts to teach freshman composition (at substantially lower salaries and with no job security).

In any event, thanks for this trip down amnesia lane. As much as I enjoy fine literature and its study—even more than Professor Bainbridge enjoys fine wine—I'm still trying to forget the MLA, because it has been coopted. Not because it is inherently ridiculous or worthless.