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Will the Blogosphere Affect the Miers Appointment?

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VCstats3.jpgThe blogosphere is erupting with reactions to Harriet Miers nomination. Will the blogosphere affect the confirmation? What kind of effect will it have?

My guess is that the blogosphere will play an important role. Many blogs have experienced an influx of traffic this week after the nomination was announced, such as The Volokh Conspiracy, which jumped from about 25,000 visits per day to over 40,000. [The image on the right is of The Volokh Conspiracy’s visitor traffic over the past month.] These blogs are being read by those in all corners of government. They are thus influential in shaping the debate, especially among those in powerful positions. Blogs are also helpful in getting a read on what people very engaged in politics are thinking.

The confirmation hearings have largely become a meaningless ritual, where little about a nominee is revealed, where nominees merely dodge the tough questions and provide assurances that they won’t “legislate from the bench.” The more meaningful discussions are occuring in the blogosphere. Perhaps this is where Miers will be most thoroughly vetted and discussed.

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Please check the race box…

The Cherokee Nation — which allied itself with the Confederacy during the Civil War — held black slaves until 1866, when they abolished slavery under a treaty with the United States. (Question for the Indian law gurus of the blogosphere: Would the 13th Amendment have abolished slavery among Indian tribes without the treaty?) As with white slave owners, there was more than a little genetic intermingling (to use a clinical phrase) between slaves and slave owners. Now that the tribe if flush with casino cash, the question arises whether or not black decedents of Cherokee slaves can claim a share in the tribe’s gambling revenue. The courts have not been friendly to the claims, so, according to this story in Wired, those denied membership in the tribe are turning to geneticists and genealogists. This is where it gets complicated. Most African-American’s have some nominal percentage of Native-American DNA. Also, most African-Americans have a fair amount of Caucasian DNA. Finally, just to make things extra complicated, many Cherokees — today and in the 19th century — also had substantial Caucasian DNA. Hence, a modern-day black Oklahoman claiming Cherokee status on the basis of family tradition may show nothing more than the background level of DNA for Native Americans, but the Caucasian DNA that he shows may have come into his bloodline via an ancestral Cherokee owner or an ancestral white owner. The whole complicated problem is a wonderful illustration of just what a mushy concept race becomes when you push on it too hard and the strange disputes that result when government largess gets doled out on the basis of “race.”

I will leave to Kaimi the question of whether or not descendants of Cherokee slaves who cannot gain admission to the tribe, may nevertheless sue the tribe for reparations.

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Practical Experience is Not Enough

cornyn.jpgThe most generous way of describing my reaction to Harriet Miers’ nomination is to say that I am rather underwhelmed. So far, Bush’s two main arguments for Meirs seem to be “trust me” and “I know her heart.” Suffice it to say, I don’t find either of these particularly compelling. Senator John Cornyn (R-Tx), however, has advanced a more substantial argument in her favor. He writes:

Harriet Miers’s background as a legal practitioner is an asset, not a detriment. She has spent her career representing real people in courtrooms across America. This is precisely the type of experience that the Supreme Court needs. The court is full of justices who served as academics and court of appeals judges before they were nominated to the bench. What the court is missing is someone who understands the consequences of its decisions on the American people.

Cornyn’s argument echoes, in abbreviated form, that made by Stuart Taylor last month in the Atlantic Monthly. There is some real merit to the Cornyn/Taylor critique. The Court does, on occasion, tend to be rather oblivious to the chaos that from time to time its decisions can create in the lower courts. An experienced pragmatist who has duked it out in the trenches might be a welcome addition. After all, at the end of the day Supreme Court opinions are not written to provide grist for the law reviews, but rather to announce the law. Some familiarity with the law in practice is obviously a virtue.

The problem with this argument is that it proves too much. If a life time of duking it out in the trenches qualifies one for the Court then there are few senior practioners who are not qualified to be a justice. Perhaps this is the view of some, a legal iteration of Kissinger’s dictum about being governed by the Harvard faculty versus the first ten names in the Boston phone book. (“I would rather have a Supreme Court filled with nine names chosen at random from Martindale-Hubbel, rather than nine names chosen at random from the Harvard Law School faculty.”) I have to confess, however, that it is going to take quite a bit more than this to convince me. Extended practice experience may be a virtue, but it is certainly not a sufficient one.

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A Victory for Anonymous Blogging

anonymity2.jpgAnonymous bloggers received a great victory this week in a case decided by the Delaware Supreme Court — Doe v. Cahill (Oct. 5, 2005). The case involved John Doe, who anonymously posted on a blog statements about Patrick Cahill, a City Councilman of Smyrna, Delaware. Doe, in criticizing Cahill’s job performance, noted that Cahill had “obvious mental deterioration” and was “paranoid.” Cahill sued Doe for defamation.

Doe was anonymous, but his IP address could be linked to his postings, and Cahill sought to obtain Doe’s identity from Comcast, Doe’s ISP. Comcast notified Doe that Cahill was seeking his identity, and Doe immediately went to court to prevent the disclosure of his identity. The case reached the Delaware Supreme Court, which concluded that Cahill should not be permitted to obtain Doe’s identity.

The issues in this case are very important. Many of you comment here anonymously; and many comment anonymously on other blogs. Some have anonymous blogs, such as the person pretending to be Supreme Court nominee Harriet Miers on a blog or the pseudonymous “Article III groupie,” who maintains the famous blog, Underneath Their Robes. EFF has produced a manual about how to blog anonymously.

What if your identity – and those of the Miers impersonator and Article III groupie — could readily be unmasked?

The First Amendment provides for a right to speak anonymously. It does so because without anonymity, people might be chilled in saying certain things. But what happens when anonymous speakers defame people or invade their privacy? Those injured people should be able to sue. This issue has been a difficult one for courts, which have tried to balance a person’s free speech rights to speak anonymously with the injured plaintiff’s rights to proceed with a lawsuit.

Read More

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Now Auditioning for the Next Star Wars Kid

starwars3.jpgHave you been craving your 15 minutes of infamy? Are you not even qualified enough to make it onto reality TV? Well, you’re in luck. There’s a way for you to become a star after all. As this article explains:

Internet media outlets are striving to discover the next quirky or gripping low-budget online video so they can drive consumer demand for multimedia, bring in advertising or licensing dollars, and put their own video search engines and archives on the map.

But talent–like the 15-year-old “Star Wars” fan who inadvertently became an Internet star when a video of him staging a mock light saber battle found its way online–can be hard to find. And studios and broadcasters have yet to make much content available online due to piracy fears.

That’s why portals like Yahoo and Google, as well as start-ups such as Grouper and Veoh Networks, are attempting to create a new kind of social network. They want everyone–from upcoming filmmakers to artistic nobodies–to film videos, upload them to the Web, and let the masses decide what’s worth watching and what’s not.

The Star Wars Kid video became an Internet sensation. People from around the world downloaded it millions of times. The video was remixed with sound effects and music; and countless versions of it were created.

So pick up that video camera and channel your favorite Star Wars character. Your star on the Internet Walk of Fame awaits.

As the article notes, Internet media executives are feverishly discussing how to create compelling content that will draw large audiences like the Star Wars Kid video. That is the big question — not just for video. We here at Concurring Opinions are trying to create good content and develop an enormous audience so we can sell ads and get filthy rich. We need you to visit often and spread the word about Concurring Opinions to your friends. If you don’t, we might have to release the videos of Kaimi’s training to be a Jedi Knight.

Hat tip: Bruce Boyden

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Snooping Landlords and the War on Terrorism

home-snoop2.jpgIn this interesting AP article, a man won an invasion of privacy lawsuit when his property manager searched his home and reported to the FBI that there were terrorist materials in the apartment. FBI officials detained, fingerprinted, and handcuffed the man, but eventually determined that the man wasn’t a terrorist:

A federal jury awarded an Egyptian-born radiologist nearly $2.5 million for invasion of privacy after a property manager searched his apartment and called police on Sept. 11, 2001.

After four days of deliberations, the jury issued the award Thursday to Basem M.F. Hussein, saying the invasion of his privacy was made with “malice of reckless indifference” to his rights.

Sherri Lynn Wilson had entered Hussein’s apartment in Coraopolis the day of the attacks to replace furnace filters, according to testimony. She told the FBI she saw Arabic literature, an airplane flight manual, a compact disc jacket that showed an exploding airplane, and chemical residue she believed to be from bomb-making activities.

What she actually saw was a popular flight simulator computer game and its CD jacket, which did not depict an exploding airplane, Hussein’s attorney said. The purported Arabic literature was an English version of the Koran; the chemical residue was household dust.

Hussein was awarded $850,000 in compensatory damages and $1.6 million in punitive damages.

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Why Volokh Is Wrong on Public Records and the First Amendment

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In an interesting and thoughtful post, Eugene Volokh (law, UCLA) takes issue with California’s Megan’s Law, Cal. Penal Code § 290.46(j), which places personal data about sex offenders on the Internet yet restricts the uses of this data. The law allows people to use the information “only to protect a person at risk.” It prohibits the use of the information for, among other things, purposes related to insurance, loans, credit, employment, benefits, and housing.

Volokh writes:

So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one’s purpose is “only to protect a person at risk.” If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people — not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person — one risks damages liability or an injunction.

Seems like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it’s unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I’d think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record. But it seems that California weighs the privacy of public-record information about sex criminals more heavily than its law-abiding citizens’ constitutionally protected free speech.

I disagree with Volokh on both legal and policy grounds. Regarding the law, Florida Star restricts liability for disclosing information after the government has made it public. However, in Los Angeles Police Department v. United Reporting Publishing Co., 528 U.S. 32 (1999), the Supreme Court concluded that the government may selectively grant access to public record information. A California law required those seeking access to records of arrestee information to promise that the data should not be used for commercial solicitation purposes. The Supreme Court concluded that the law was not “prohibiting a speaker from conveying information that the speaker already possesses” but was merely “a governmental denial of access to information in its possession” under which it had no duty to disclose.

The Court has thus created a distinction between pre-access conditions on obtaining information and post-access restrictions on the use or disclosure of the information. A law cannot establish a post-access restriction on the use of information that is publicly available. Once the information is made available to the public, Florida Star prohibits a state from restricting use.

But pre-access, the government can establish conditions upon which access is granted. In a way, this sets up a contract-like situation. The government supplies people with information if they agree to use it only in certain ways. This is similar to when the government offers other benefits and specifies how they should be used. There are some limits — the unconstitutional conditions doctrine — but these limits have generally not been very restrictive.

Regarding policy, I believe that information use restrictions are a terrific way to balance the government’s making information publicly available and protecting privacy. Otherwise, the government is caught in a difficult zero-sum trade-off between public access to information and privacy. To protect privacy, governments would have to restrict the disclosure of the information entirely, but this would make less data available to the public. With use restrictions, such as those in the California Megan’s Law, the government can make the information available to protect people but can limit uses that do not further this purpose. This can prevent undue discrimination against those sex offenders who have been released from prison and who are trying to rehabilitate themselves.

I could go on for much longer, but I’ve sketched out the basic point. If you want to read a more detailed argument, check out this article, this article, and my book, The Digital Person.

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Reactions to Miers

A non-comprehensive collection of links, gleaned from all over over the past few days (with Bainbridge and Volokh providing much of the information):

Support from the right:

Hugh Hewitt.

James Dobson.

Grover Norquist.

Mike DeWine.

John Cornyn.

Support from the left:

Daily Kos.

Harry Ried.

Ben Nelson.

Opposition from the right:

Charles Krauthammer.

George Will.

Randy Barnett.

Michelle Malkin.

William Kristol.

Stephen Bainbridge.

David Frum.

Ann Coulter.

Opposition from the left:

Counterpunch.

Marjorie Cohn.

The Nation.

Undecided

People for the American Way.

Alliance for Justice.

Charles Schumer.

Okay, who am I leaving out that I should be including on the list?

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Miers: Is Karl Rove Chuckling?

rove.jpgFor all the talk about Harriet Miers, very little has yet been unearthed about her. Everybody seems unhappy. Many conservatives are extremely upset about the nomination. Liberals are underwhelmed but many seem to hold out hope for a Souter. There may be a lot of uncertainty about Miers, but there is some degree of certainty about how this White House operates.

The reactions about Miers certainly couldn’t have come as a surprise to the White House. I’m trying to imagine Karl Rove’s strategy. There must be, after all, some kind of strategy, unless Rove was taking a lunch break when Bush made the nomination. Could it just be cronyism? Or perhaps there’s something more. Here’s a nominee who has about as short a paper trail as a nominee can have, yet who is very well known to President Bush and others in the Administration.

After spending years cultivating the far Right, would the Administration suddenly abandon them? Or just make a really big blunder? I don’t see it. In the last presidential election, it became clear that Rove was not to be underestimated. I don’t totally understand what the Administration is doing here, but there must be a strategy to it. It’s hard for me to believe that this appointment was just a thoughtless bout of cronyism.

And regarding Supreme Court justices, David Bernstein of the VC has dubbed his new baby girl “a future Supreme Court Justice.” If the Harriet Miers nomination doesn’t work out, I think that Bernstein’s daughter would definitely be on the short list. After all, she has no paper trail and would serve on the Supreme Court for a very long time, which seem to be the leading qualifications to be on the Court these days.

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Do Traffic Cameras Work?

trafficcam.jpgThe answer appears to be no – at least according to one study in DC. According to a Washington Post article:

The District’s red-light cameras have generated more than 500,000 violations and $32 million in fines over the past six years. City officials credit them with making busy roads safer.

But a Washington Post analysis of crash statistics shows that the number of accidents has gone up at intersections with the cameras. The increase is the same or worse than at traffic signals without the devices.

Three outside traffic specialists independently reviewed the data and said they were surprised by the results. Their conclusion: The cameras do not appear to be making any difference in preventing injuries or collisions.

“The data are very clear,” said Dick Raub, a traffic consultant and a former senior researcher at Northwestern University’s Center for Public Safety. “They are not performing any better than intersections without cameras.” . . . .

The Post obtained a D.C. database generated from accident reports filed by police. The data covered the entire city, including the 37 intersections where cameras were installed in 1999 and 2000.

The analysis shows that the number of crashes at locations with cameras more than doubled, from 365 collisions in 1998 to 755 last year. Injury and fatal crashes climbed 81 percent, from 144 such wrecks to 262. Broadside crashes, also known as right-angle or T-bone collisions, rose 30 percent, from 81 to 106 during that time frame. Traffic specialists say broadside collisions are especially dangerous because the sides are the most vulnerable areas of cars. . . .

The results were similar or worse than figures at intersections that have traffic signals but no cameras. The number of overall crashes at those 1,520 locations increased 64 percent; injury and fatal crashes rose 54 percent; and broadside collisions rose 17 percent.

Hat tip: EPIC West Blog