21 March 2017

The Unanticipated Return of Footnote 4

American law has an extensive history of burying significant disclaimers and complications that don't quite need to be decided immediately in footnotes. Perhaps the most notorious in all of American law is footnote 4 of Carolene Products, which is arguably at the core of every aspect of modern economic legislation... and, sadly, of far too much legislative discrimination and other misconduct.

The Ninth Circuit today did its best to provide a worthy successor. It may have succeeded — but will most likely have done so if it forces Congress to act.

4. The Copyright Office is housed within the Library of Congress, and it is not clear whether the Library of Congress is part of the executive or legislative branch. Compare U.S. v. Brooks, 945 F. Supp. 830, 834 (E.D. Pa. 1996) (“[T]he Copyright Office is part of the legislative branch.”), with Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1341–42 (D.C. Cir. 2012) (discussing why the Library of Congress “is undoubtedly a ‘component of the Executive Branch’”). If the Library of Congress is part of the legislative branch, then the Librarian’s “power to appoint all of the officers who execute the copyright laws” may run afoul of the Appointments Clause of the Constitution. See John Duffy et al., Copyright’s Constitutional Chameleon, Concurring Opinions (May 17, 2013), https://concurringopinions.com/archives/2013/05/copyrights-constitutional-chameleon.html#more-74811.

Fox TV Stations, Inc. v. Aereokiller, LLC, No. [20]15–56420 (9th Cir. 21 Mar 2017), slip op. at 21 n.4 (PDF). This footnote calls into question the validity of virtually everything that has been done under the (purported) authority of the Register of Copyright since, oh, ever, thanks to the magic of the Appointment Clause. This clause was in the news today due to other legal mischief (PDF)… and legislative misconduct.

Frankly, I'm not all that sure that it would be such a bad thing to call the Register's purported "rulemakings" and other discretionary acts into question. The Copyright Office is a captured agency; it's just that the captors are the transferee/distributor parts of the entertainment industry, whose interests are not aligned with the actual creators of original works. And even more than most captured agencies, the Copyright Office has no incentive whatsoever to change: There's not nearly as much money available working for the creators (trust me on this!). Only a fundamental structural change can create an incentive to escape, and merely declaring an escape doesn't work in the medium (or even short) term: It requires a fundamental change in incentives at all levels of the organization.

* * *

And so, turning to the substance…

The Ninth Circuit ruled — rather unsurprisingly — that Aereo-like distribution-channel-repurposers do not qualify as "cable providers" under § 111 of the Copyright Act. This matters because it is not an infringement to redistribute over-the-air broadcasts on a cable TV network — if one qualifies, and the definitions matter. This fight was actually over the definitions, and the Ninth Circuit ended up deferring to the definition offered by the Register of Copyright (which, unlike so much coming from the Copyright Office, has been pretty consistent over the years, even in the face of changing technology and economic incentives).

The "Aereokiller" system took those over-the-air broadcasts and redistributed them not with a local cable-TV signal (presumably for the benefit of customers in rural and sightline-restricted areas who could not get a clear broadcast signal… based on 1974ish concepts of what is necessary for a clear broadcast signal, but that's for another time), but with an internet subscription. This is a three-element change in distribution channel, which is at least one too many for either the court or the Copyright Office:

  • It is not local. Both the court and the Copyright Office emphasized that § 111 is "about" ensuring access to local broadcast programs of local interest, whether that's regional sports broadcasts, public affairs, or whatever (but without mentioning the nature of the content in their respective directives).
  • It is not for the same form/format as the original broadcast. Although both the court and the Copyright Office are less than obvious about this, there remains a distinction between "passive viewing at home" and "recordable, mobile, editable" in tension with Sony and the Home Audio Recording Act of 1992. One must read between the lines — such as the paragraph in the court's slip opinion spread across pages 12 and 13, rejecting full "technology agnosticism" as entirely consistent with the statute — to see this… which, I suppose, leads directly into the third change, which is truly silent.
  • It provides a complete revenue free ride for the repurposing service, which provides exactly no financial benefit (or other benefit from the exclusive rights provided by copyright) to the copyright holder — or, as relevant here, the holder's licensee broadcasters/distributors (regardless of whether it's a true "broadcast" origin).

The Copyright Office — being an agency captured by the licensee broadcasters/distributors and their non-TV counterparts — is admittedly stuck in the middle. Regardless of the agency capture, the Copyright Office is charged with administering a constitutionally-approved monopoly in the face of centuries of suspicion of monopolies. That's the real subtext here: That these repurposing "services" are simultaneously attacking the holder's/licensee's rights established in that monopoly (a loser, given the constitutional imperatives) and the perceived excessive fees charged by "big media" for participating in that marketplace with even the purest of intentions… and there's very little pure in these intentions, only a desire to avoid paying the (established, often unfair) going rate.

* * *

What I find more interesting about this footnote 4 is that it may provide a lever to chip away at some of the Copyright Office's improper, self-interested nonsense, such as its position in Morris. The tl;dr version of this is that the Copyright Office's captured-agency self interest led it to assert that each and every freelancer's work must be covered by a separate certificate of registration, meaning that a typical periodical with material written by freelancers will have not one certificate (and registration fee!), but perhaps dozens. The full version is… longer.

15 March 2017

Aristotelian-Fallacy-Spiced Link Sausage Platter

…aka the false dilemma, which is I suspect inherent in the so-called "two-party system" — a system that is not inherently part of any representative democracy.

  • Who gives a fuck about an Oxford comma? Well, I do. And so should anyone who prefers unambiguous writing, like the US Court of Appeals for the First Circuit (PDF). In this instance, the presence — or absence — of an Oxford comma in a piece of legislation (one of those places that, ya know, good writing really matters) essentially caused an entire case and probably cost upward of a quarter of a million dollars in attorneys' fees on each side, between the district court and the appeal… and these are the lucky ones who actually got a hearing. And this time, the court actually came to the "right" (and a principled) decision based on external evidence and other statutory provisions... but better writing, and better proofreading, would have avoided the litigation. At least on these grounds.
  • Meanwhile, over in the UK a major ISP has been forced to block access to a known pirate site. In Football Association Premier League, Ltd v. British Telecommunications PLC, [2017] EWHC 480 (Ch) (13 Mar 2017), the Hon. Richard Arnold held that he had jurisdiction to issue the blocking order, and the recent CJEU decision in GS Media justified cutting off access.

    Unfortunately, the decision does assume too much in one respect: That the Premier League actually has a proper copyright right in its broadcasts of football matches. And this is a closer, and more dubious, matter than it appears… once one removes the commercial considerations that make engaging in the fight "worthwhile." It harkens back to the question of whether a still photograph of a still scene is copyrightable — and, more to the point, by whom. After all, the Premier League doesn't actually engage in any expressive conduct; it doesn't even set the rules for the matches! But that's for another time, I'm afraid; in this instance, things are rather annoyingly intertwined with the poor posture of the not-before-the-court defendants and the rent-seeking behavior of the intermediaries.

  • Prospero (the semipseudonymous group blog on the arts at The Economist) desperately tries to explain what is right and what is wrong with dystopian alternate histories without any real grasp of what they are. The column fails at both understanding the "change a single variable and see what happens" quasiscientific focus on the so-called "counterfactual" element, and at seeing that alternate history treats the history itself as an additional character rather than a mere "background element." Too, Prospero is looking at far too narrow a subset of alternate histories from which to draw any conclusions — not even a very wide range of alternate-histories-of-the-Nazis; other novels (e.g., Philip Roth, Norman Spinrad, and a host of others) and even media (e.g., Iron Sky) fall in that description and rather thoroughly refute what passes for a thesis.
  • A fascinating, wide-eyedly-optimistic opinion piece at SciAm's blog network suggests that demonizing opposing voters is counterproductive. To a point, this is correct. But:

    • Some of those voters of the opposite ilk really are "demons"; there's really no other way to characterize the ardent and explicit 'murika-is-for-anglo-saxon-protestants-only subgroup. So, just as pretending that all opponents are demons is counterproductive, so is pretending that no opponents are demons.
    • Conversely, such an effort ignores the demons among one's own fellow travellers (and yes, I use that Red Scare/McCarthyist term intentionally). For example, ardent Democrats ignore at their peril the nepotism problems presented by machine politics, with Chicago and the dysfunctional Illinois state government being only the most-obvious and irrefutable examples. Indeed, the "nepotism" issue is one reason that I was not very enthusiastic about the Presidential race, because it presented a choice among evils instead of a choice I could actively support (however flawed).
    • A conversation as proposed (and assumed) has as its premise open minds on all sides of the conversation… and, as a further subtext, that there are more than two sides. To name one, the insistence of a certain hard-core fringe that "all GMO is evil" neglects the nature of genetic modification (ask a veterinarian about the AKC's standard for "German Shepherds" and see if that's any better than gene-splicing).
    • And it's not just "open minds" that are at issue: It is the very nature of what is considered persuasive. At present, the conversation on politics — not just in the US, and not just regarding "Trump voters" — is about ideology with little regard for facts, for fact-gathering, for known problems with fact-gathering, and so on. That is, in part, because most of the public doesn't know squat about gathering facts; at best, it knows how to manipulate numbers in spreadsheets that may be WAGs hiding all of the assumptions behind them (e.g., ROI, which by definition disdains the contribution of labor and intellectual property in an ideological frame that asserts that only financial capital has true value).

    I might otherwise characterise the article as "charmingly idealistic," except that I spent far too much time dealing with the ugly underside of ideological strife to find much of it charming.

  • I am shocked — shocked, I say — to discover that the Prince of Orange's 2005 tax returns appear at least somewhat fictional. In that, I'm afraid, he's just engaging in class solidarity… and the time-honored tradition in the West of saying something different to one's tax collectors than to one's bankers. The sheer scale is somewhat bizarre, but the nature is not (nor, if anyone is honest, unexpected of this particular member of this particular class). I don't ordinarily turn to avowedly fictional accounts for deeper factual inquiry into historical events — and neither should anyone else.

06 March 2017

Firebugs

If you're planning a fire at the Reichstag, you can help ensure success by defunding the fire department first.

  • I did mention a fire at the Reichstag as a planned event… Of course, what the modern "anti-big-government" people carefully forget to mention is that something is going to fill the abuse-of-power vacuum left when there isn't an at-least-partially-accountable-to-the-governed government to do it.
  • I suppose it beats fighting over who hosts (largely scripted) "reality TV" shows. OK, maybe not.
  • It also beats wondering whether those setting the fire are smart enough to strike a match. Which means finding — and recognizing — a matchbook first; since "book" is part of "matchbook," we can breathe a little easier with this batch of aspiring firebugs.

    The real indictment of the media is that for the past twenty years or so — the era of Jon Stewart's The Daily Show, Stephen Colbert's The Colbert Report, at times Larry Wilmore's ever-changing show, and the continuing era of John Oliver's Last Week Tonight — those pointing out the, umm, transparency of the emperor's new clothes have been relegated to late-night TV comedy shows. Guys, I could come up with a half-hour's-worth of similarly pointed material (admitedly, almost certainly not as well done) every week on just Chicago politics and related follies, and I haven't even lived in Illinois for five years! The real problem is not that Voltaire has no following; it is that, in an age in which media ownership depends not upon the equivalent of "admission fees" but upon the whimsical and self-interested patronage of advertisers, they haven't figured out how to make Voltaire a regular component of their serious coverage. (Or, perhaps more disturbingly, they have… but they're not willing to do it because that might offend some of those patrons.) Thus, they prelabel satire as merely "comic relief," not worthy of being taken seriously. Even parody gets more serious attention, because at least parody is inherently protectable as fair use. (Ironically, the Court bungled the definition of "parody," but that's an argument for another time.)

27 February 2017

Politics Hidden in Literature

So, what does last week's story of our lives and other things look like?

  • Over at the NYT, Andrew Higgins tries to explain the folly and political context of the Prince of Orange's designation of the media (among others) as "an enemy of the people." Unfortunately, Higgins doesn't go quite far enough, and misses perhaps the most-disturbing undercurrent: Ibsen's play of that name (older translation to English).

    Ibsen's play in the original is a disturbing enough referent: It concerns a doctor — as it happens, a pretty petty individual — who discovers contamination of the town's water supply by a local mill, objects publicly, and is thereafter vilified. That is, the "enemy of the people" is the hero of the play, however flawed, precisely because he won't shut up when those with power — and, in particular, those with economic interests in the status quo, based largely upon inherited land ownership — attack him for the temerity of stating facts.

    But things get even more disturbing when seeing Ibsen's work on the American stage: The dominant translation/adaptation is by Arthur Miller, made during the height of the McCarthy era. Miller's version removes much of the comedy and ridiculousness of Dr Stockmann in favor of a more dualistic, polemical opposition between an unpopular opinion based on science and a popular opinion founded in economic self-interest. In that, Miller's version is an excellent reflection of America before Silent Spring brought the twin concepts of "environmentalism" and "long-term consequences of ignoring scientists" into even the reptilian hindbrain of American thought. But Miller's version is also a reflection of not just the debate itself, but attempts to suppress the debate, as reflected in the Army-McCarthy hearings.

    In this sense, Mr Higgins missed the point — probably due as much to space constraints in the print edition of the NYT as anything else. But it is a missed opportunity to ask the Prince of Orange, and in particular Stupid Spice (the most horrifying of the Spice Girls):

    You've done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?

    Army-McCarthy Hearings, 09 Jun 1954. Of course, I expect only bluster in response… which is exactly what Mr Welch got when he asked.

  • PW's party line continues to display its abject ignorance with a story misleadingly entitled "Ranking America's Largest Publishers" — by which it means trade publishers (which necessarily ignores two-thirds of all publishers, including three with greater total revenue than any of the Big Five), and "based on unit sales made at retailers that report to BookScan." Umm, guys: Online sales are not reported to BookScan, and accounting for sales of e-books as "retailers" is inconsistent at best. Most college-bookstore sales (in particular, textbook-department sales) are not reported to BookScan. More to the point, sales of PW (and, largely, of PW's parents and affiliates) are note reported to BookScan…
  • And meanwhile, blaming the infrastructure continues in fine form over last night's quickly corrected gaffe at the Oscars (which themselves remain fundamentally flawed in so many ways that they're essentially marketing fluff).
  • Sometimes, truth emerges in story. More to the point, the acceptance of truth (or of… other versions, as Professor Harold Hill might acknowledge) emerges not in, but through the results of, the storytelling process.

22 February 2017

First Official Trailer

The Supreme Court just gave a preview of its likely treatment of Drumpfian anti-[insert-religious-or-immutable-ancestral-characteristic] immigration policies this morning. If I may quote the (Republican-appointed) Chief Justice, writing for a 6–2 majority that includes another Republican appointee:

But our holding on prejudice makes clear that Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle. As petitioner correctly puts it, “[i]t stretches credulity to characterize Mr. Buck’s [ineffective assistance of counsel] claim as run-of-the-mill.”

This departure from basic principle was exacerbated because it concerned race. “Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.” Relying on race to impose a criminal sanction “poisons public confidence” in the judicial process. It thus injures not just the defendant, but “the law as an institution,… the community at large, and… the democratic ideal reflected in the processes of our courts.”

Buck v. Davis, No. [20]15–8049 (22 Feb 2017) (PDF), slip op. at 21–22 (citations omitted).

Immigration matters are not criminal, so this is not a literal preview. The only real distinction would be the "plenary power over national security" figleaf raised by the administration and resoundingly rejected below — and, as both courts below have noted, there simply isn't record evidence demonstrating that these immigration policies are, in any way, governed by "national security" without regard to the Fourteenth Amendment. The only way that figleaf makes a difference to the censor is if what it's covering is really, really tiny… which sort of calls into question its utility in the first instance.

This is yet another instance in which facts make a difference. Both Congress and the Drumpf Administration need to pay attention, as do the states when advancing ideology in a vacuum (PDF).

20 February 2017

9066… Oh My!

I've been to a certain former racetrack near San Francisco. It's now occupied by a midscale shopping mall, with a small monument out front (as to the road)/back (as to the cinema, parking garage, and mass-transit station) that nobody ever stops to look at. Unless, that is, they're nerds like me.

  • George Takei — one of the smilingest human beings like, ever — tells a cautionary tale from his childhood… for CNN, meaning that none of the people in this administration who need to hear it will. Not even if the ghost of Fred Korematsu wakes them in the middle of the night, rattling chains, and refusing to say whether he is the ghost of February past, of February present, or of February future… probably because with this administration, he's all three. Not even if Fred's daughter makes things even clearer: That would require reading.
  • An article in CHE actually criticizes the sacred cow of academia: The hypocrisy of the tenure track… and those left behind. There is certainly a place for the brilliant researcher who is a poor teacher in academic institutions, just as there is a place for the brilliant instructor who does little or no original research more due to lack of skill/impetus than the "distractions" of teaching. The problem is that the academy's system values only the former, and considers that only the former is "at risk" in the sense of needing the protections of tenure to advance knowledge — while simultaneously denying that instruction (especially where there is controversy) is the foundation of being ready to research instead of just randomly shock with the "new" (that, all too often, turns out to be not so new after all). And the less said about the utter disdain for the "public service" component of academia (such as being real "public intellectuals" within their own and related fields — but refraining from Argument From Authority in unrelated ones), the better.

    I've been around both kinds of "professors" noted above (I survived — even thrived — in waaaaaaay too much higher education for the average bear). Ideally, all professors would combine both virtues, but it's not going to happen. Too many professors can't even write their articles coherently without substantial assistance, however brilliant their research. (And I'm thinking explicitly of you, too, law professors; remember, I've been in charge of the slush pile at a law journal you wanted to be published in.) None of this is good — not for research, not for students, not for the institutions themselves.

  • It's more than just the economy per se, stupid. There's only one historical example — worldwide, in five thousand or so years of anything resembling "civilization" that isn't on a hypothetical island sunk forever in either the western Mediterranean or the Atlantic — of internally-instigated widespread economic growth in any non-command economy (and it's arguable whether any command-economy growth was internally instigated). Europe in the "long 18th century" (approximately 1689 to approximately 1815) was characterized by increasing economic activity, financial accretion with less reliance on favorable original position, increasingly stable governance, and greater mobility of information, and financial and intellectual capital, than any previous region/period… or virtually any since other than the United States of the first half of the twentieth century (and that's arguably due to outside instigation). This should be a lesson for isolationists, but it won't be.

    All of which leads to a philosophical question for which I have no answer — only more questions. The macroeconomic debate today is based on "job creation" as a measure of the success of macroeconomic policy. Fine, it's a measure; but, in an age in which there is increasing emphasis on "entrepreneurship" at all levels of both education and post-education experience; in which entrepreneurial/small businesses refuse to treat people who do work for it as having "jobs," but being "on contract for tasks" (not that this is entirely a bad thing); in which only those with only limited amibitions for class mobility even take jobs, as opposed to "beginning new businesses": What does "job" mean? And, more to the point, if "jobs" are to be held for only a limited period of time before diving into "entrepreneurial free enterprise," does that mean that those who hold "jobs" throughout their working lives are somehow lesser economic beings?

    And returning to one qualification: What does all of that say about the change in one's "original position" as a measure of macroeconomic merit? (For example, it's quite possible that the Prince of Orange has not substantially enhanced his net original position in comparison to others who had comparable original positions…)

  • Jim Hines has posted a three-part (so far, anyway) series on 2016 novelist income from a voluntary survey that provides some starting-point data for analysis: part one (15 Feb), part two (16 Feb), part three (18 Feb). There are few conclusions to be drawn from what he presents other than "some so-called 'indie' writers are doing better than the median for so-called 'traditional' (it-should-still-be-called-commercial-but-I've-lost-that-argument-to-those-who-don't-know-that-traditional-means-vanity-press-going-back-three-centuries) writers, and some are not." The data collection method does not support more than that (which is not a criticism of Jim or his methodology, because I don't think he was trying to do much, if any, more than that).

    The main problem with surveys of this nature is that they always lose to the tyranny of the calendar. Here's an obvious example: George R.R. Martin. It's been several years since the last published book in A Song of Ice and Fire, and he's been working on the next one since before A Dance With Dragons actually hit the shelves. Nonetheless, income will be highly compressed… but I seriously doubt that analysis of that income will be sensitive to the amount of time (either hourly or calendarly, take your pick) invested in the novel. Writing income in 2016 is not just from work performed in 2016 — even when restricted to novels published in 2016 (and the less said about "spring" versus "holiday" windows, the better). And, in turn, the combination of lag and frame size differentials means that one cannot predict appropriate current behavior based upon this retrospective data, if only because the times they are a changin' (as that data itself demonstrates)…

14 February 2017

Your Dominoes Will Fall in 30 Minutes or Less

If you're reading this heavily overintellectualized blawg, you've probably heard of the "domino theory" in international relations — a (frankly misbegotten and culturally arrogant) model of how the commies would take over our allies. We're less than a month into a different attempt to impose a dictatorship, and dominoes are already falling the other way... or, at least, we can say so for amusement's sake.

  • The most-definitive domino — not the first in time to begin falling, but the first to make definitive thud in public — is Trump's National Security Advisor, who resigned because even before the inauguration he was unable to resist an opportunity to show others how Important he was. Which, unfortunately, is not inconsistent with... ok, that's perilously close to my NDA, which will outlast the heat-death of the universe.
  • Another domino is falling very softly, and I thoroughly expect that after the next stage of oral argument the Drumpf administration will attempt to make it go away by replacing the policy. Briefing continues even now on the purportedly "urgent" need to ignore due process in excluding certain religions from entering the US. By the way, under the wording of that policy, Saul-who-became-Paul would be excluded... he met the definition of "Syrian refugee," and because he started organized xtianity only after entering Syria he couldn't have been a member...
  • Then there's poor little Ivanka, whose less-than-haute-couture brand failed to support profit expectations and was axed by Nordstrom. This is only an indirect domino, representing (similar to the National Security Advisor, who does not now and never will get the privilege at this blawg of being mentioned by name) a rejection of another attempt to impose branding on reality instead of vice versa.
  • One domino that isn't falling yet is the legacy of a New England governor two centuries ago: partisan gerrymandering. And here, I'm afraid, the courts have — to use the technical term — fucked up with their own allegiance to domino theory, by holding that mere partisanship in elections is a "political question" and therefore not within the competency of the courts. The problem with this theory is that by the time it gets to the courts, there is no one left to answer it who is not a far worse danger to separation of powers and representative democracy... so by abrogating purported "political questions" when they relate to electoral process, the courts are actually undermining judicial independence.

    Bush v. Gore presented a clear, partisan, political question. However, much as I hate to say it given the consequences (which included needless casualties and a near-Depression), it's a very close legal question, because it involved the exercise of a particular executive-branch elected official's discretion when that official had sworn to uphold the law. I understand and acknowledge on those facts (however much I disagree with it based on facts that have only become known since the proceedings) the rationale that absent a smoking gun of intentional disloyalty, the courts simply should not have intervened. Gerrymandering, however, is different precisely because its very nature undermines the rule of law in favor of the rule of factions. And although that is, in some sense, "political" and therefore purportedly beyond the capacity of the courts to deal with, it is "political" in a process and structural capacity in that — unlike the exercise of discretion in Bush v. Gore — it seeks to suppress the dissent that is the foundation of democratic institutions by pre-electoral rpressive action concerning legislative (and not executive) selection. If there's one unbroken thread of reasoning in all of US electoral law, it's that all interests are entitled to representation in law-passing parts of the government... and that everyone has an equal right to vote on the single winner of elections for the law-refining-and-implementing part of the government. And that's why partisan gerrymandering is not a "political question"; the clothing of the "political question" is cross-dressing of a much nastier beast.

And now off to the doctor for another post-surgical follow-up. I don't have time (or energy) this morning to show how "domino theory" is affecting intellectual property law and/or authors'/musicians'/artists' rights... plus, as the Emperor of Austria noted once, that would have too many notes. (Of course, he was wrong, but that's for another time — even if an entirely ironic counterpoint to the current refusal to footnote anything coming from 1600 Pennsylvania Avenue.)

10 February 2017

Friday Roundup

… sprayed on the weeds without regard for environmental regulations because, in this new to-be-made-grated-again America, we can just ignore regulations and laws that get in the way of profit, right?

09 February 2017

Two Bad Dudes and a Nasty Woman

… passed the Bar. And now they're so-called "judges" on the United States Court of Appeals for the Ninth Circuit — with life tenure on good behavior… Let me start over.

A unanimous per curiam decision of a panel consisting of one Heffalump appointee and two Jackass appointees grabbed Trump's immigration decree by the…

No, that's really not any better, is it? Let's try again:

Mr Drumpf got some unwanted publicity today when the Ninth Circuit panel basically told us that they expected more from first-year law students than they got from his Department of Justice appointees. There are lots of juicy quotes, and even more juicy implications, in the per curiam (jointly written and not "authored" by a single judge) opinion rejecting Drumpf's demand to stay the temporary restraining order issued against the incredibly bigoted new "immigration policy" last Friday in Seattle. Here's the one that tells us that there was a problem with the government's positions that 1Ls would be expected to avoid:

[T]he Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.

Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionally permissible means of implementing that power”).6 Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).


6 See also, e.g., Galvan v. Press, 347 U.S. 522, 530 (1954) (reaffirming the broad power of Congress over immigration, but observing that “[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process”); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (reaffirming, in the context of adjudicating a constitutional challenge to an immigration policy, that “this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution”); Chae Chan Ping v. United States, 130 U.S. 581, 604 (1889) (“The powers to declare war, make treaties… and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.”)

Washington v. Trump, No. [20]17–35105 (9th Cir. 09 Feb 2017) (per curiam), slip op. at 13–15 (emphasis in original) (PDF).

The panel's citations to Boumediene and Hamdi — one of the notorious Detainee Trilogy cases in which reviewability was pretty firmly established — are telling. So, too, are the citations to Quirin, to Milligan, to Aptheker, and to Endo — all four of which make appearances in one or both of the basic constitutional law course taken by every law student and the slightly-more-advanced federal courts course taken by law students with any aspiration to litigate in federal court. (One might speculate that this panel is subtly setting things up so that the Supreme Court can finally get around to overturning Korematsu v. US, 323 U.S. 214 (1944), a "self-inflicted wound.") All that would have been really necessary to complete the humiliation of the unprepared Department of Justice advocates would have been a citation to that two-century-old chestnut Marbury v. Madison, 5 U.S. 137 (1803)… or, perhaps, to the Seventh Circuit's recent excoriation of then-Governor Pence.

And it gets better once the panel actually reaches the merits.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.

Washington v. Trump, slip op. at 26–27 (footnotes omitted).

Another bad day at the office, Mr. Drumpf. See you in court.

03 February 2017

Another Judge Denies Himself Future Promotability

… by doing his bloody job. And it's not some namby-pamby liberal, either: The Hon. James Robart was appointed by George III.

The temporary restraining order (PDF) specifically states that the states of Washington and Minnesota have satisfied both possible rationales for issuing a temporary restraining order: The Winter test (likely to succeed on the merits, irreparable harm without order, balance of equities in favor of order, and order is in the public interest) and the Cottrell test (serious questions on the merits and the impact of the to-be-restained action is extreme, along with irreparable injury and public interest balancing in favor of the order). More to the point, Judge Robart concludes his relatively short order as follows:

Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country's laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a [temporary restraining order] against certain actions taken by the Executive in the context of this specific lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country's citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described [temporary restraining order] is necessary, and the States' motion (Dkt. ## 2, 19) is therefore GRANTED.

State of Washington v. Trump, No. [20]17cv141, Dkt. 52 (W.D. Wash. 03 Feb 2017) at 6–7.

Thank you, Judge Robart, for doing your job, and making a hard decision (either way). The way you did it virtually guarantees that you will never be elevated to a higher judicial office, either on the Court of Appeals or Supreme Court — just as the Hon. John E. Jones III did in Kitzmiller.

31 January 2017

Unwisely Sticking My Head Above the Parapets

... primarily because there's live fire coming from every possible direction, including from inside the damned castle.

Once upon a time, I raised my right hand and said the following:

I, ____, having been appointed a Second Lieutenant in the United States Air Force, do solemnly affirm that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the office upon which I am about to enter.

The oath taken by attorneys is similar, in that there is no reference at all to loyalty to any individual, or to any set of policies excepting only supporting and defending the Constitution (including also the respective state constitutions, which is yet another reason that states should get out of the lawyer-regulation business... but that's for another time, and it's a "should").

Instead, certain elements are acting as if a vulture fund has successfully engaged in a hostile takeover of a firm that has no legal or moral obligation to consider what the military calls "collateral damage" and what economists refer to as "externalities." A word of warning, based on history: The vast majority of prosecutions for "war crimes" have arisen from ignoring various aspects of "collateral damage" doctrine in preference to "mission accomplishment"... all too often of a self-serving "mission." Similarly, a plurality (and possibly a majority) of successful corporate prosecutions under the rule of law have concerned attempts to ignore externalities... all too often in pursuit not of building the value of the corporation, but of corporate officers and directors. And, almost by definition, governments in the United States aren't supposed to be about personal benefit, but about public service; how that works out in practice is incredibly complex, but the inability of current federal officeholders to vote/declare themselves a raise is a big hint.

And so, in the Monday Night Massacre, a lawyer got fired for holding to her oath. The administration was legally entitled to fire Ms Yates; the wisdom of doing so is a separate issue, as are both the wisdom and right of Ms Yates to speak and act as she did. As a West Wing character noted concerning Bartlet doing the "right thing" and invoking the 25th Amendment during the horribly contrived kidnapping crisis, "A truly self-sacrificing act usually involves some sacrifice." And even just following orders may be that self-sacrificing act, if not now then in the future. Few people remember that the lawyer who did follow orders and fire Special Prosecutor Archibald Cox during the Watergate investigation was the individual whose later Supreme Court nomination led to the arch partisanship of all judicial nominations: Robert Bork, then the Solicitor General. (Ironically enough, the Solicitor General would no longer be at that place in the chain of command!).

13 January 2017

Agency Capture and the Copyright Office

There's an "argument" going on right now — resembling the posturing of silverback gorillas more than an argument — concerning whether the Copyright Office is a captured agency. On one side, there are "info free" warriors and allies, such as the so-called "Public Knowledge" group (a deceptively deceptive name, with multiple layers of ideological presumptions in it), claiming that the Copyright Office has been agency-captured by "copyright holders" to the detriment of the public at large. The opposition has been sniping around the edges, pointing at all of the problems — and, admittedly, they're serious ones — with the factual support offered for that position, but failing to engage with the underlying question of whether there has been a capture at all.

And then this happens: The recently-ousted Register gets a new job as CEO of the Association of American Publishers, continuing the long tradition of senior Copyright Office officials (and even not-so-senior) sliding easily into well-paying jobs specifically in the distributor/transferee segment of the entertainment industry. This exposes the meaninglessness of the posturing described in the first paragraph, because "copyright rights" is not a two-sided battle. It isn't even necessarily a battle... but it definitely has more than two sides. At minimum, copyright necessarily involves the rights of:

  • The actual, natural-person creators of copyrighted works;
  • The distributors and, where present, transferee-owners of those works after their creation;
  • Reusers of those works, who create useful derivatives within the framework of copyright (whether licensed or not, fair use or not,... legally or not);
  • End users of those works

The regulatory capture is the second area. And Ms Pallante's new job — which will fit in quite well with her advocacy over the years — is a pretty clear piece of evidence that capture has been successful. Ironically enough, because the Copyright Office is an arm of Congress, its employees are exempt from most of the "revolving-door" restrictions... which might have inhibited this particular embarassment if the Copyright Office had been in the Department of Commerce where it belongs, along with the Patent and Trademark Office.