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March 2005
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That's Small-l Libertarianism

Apropos this recent post regarding whether the law should require pharmacists to fill prescriptions for medications to which they morally object to filling, David Boaz writes

We seem to be talking past each other. I'm not challenging any of your arguments about the value of family planning and contraception. I'm just asking what we should do about people who disagree with you. I think people who have different moral or religious or medical views should not be forced by law to act against their consciences.

If you think that pharmacists should be required to dispense EC against their consciences, would you also say that every physician should be required to perform abortion if requested? Or every plastic surgeon required to perform breast implants if a woman shows up at the clinic requesting them? Or maybe you would say that women shouldn't be able to make the choice to get breast implants, and doctors shouldn't perform them. Either way, the question is: Who decides? Each individual, or the government?

That's libertarianism.  You have your right to an abortion, and I have my right to refuse to enable that right.  It's something people seem to forget.  All they think about are their own rights. 

"But I have a right to an abortion!" Yes, you do.  Comes then the non-sequitur: "You must help me exercise that right!"  Wrong.  We both should have the right to choose.

Anyhow, read the full debate and you'll see why Mr. Boaz is one today's leading libertarian thinkers.

More "Interstate Commerce" Nonsense

Today Judge Posner, on behalf of a unanimous three-judge panel, wrote that attempting to coerce someone into withdrawing money from an ATM machine is a Hobbs Act violation.

No one was able to identify the robber, but he had left a fingerprint on the car window and eventually this was matched with a fingerprint of the defendant’s that was on file. Had the crime not been interrupted, and Cahill been forced to withdraw money from an ATM, she would have done so by inserting her card into the ATM, causing an electronic signal to be sent to Ohio, where the transaction would have been processed and a signal dispatched back to the ATM to enable her to withdraw cash from the machine.

The Hobbs Act criminalizes robbery and extortion that “in any way or degree obstructs, delays, or affects commerce.” 18 U.S.C. § 1951(a). The defendant argues that since he never got near the ATM, he could not have violated the Act. That is wrong. The Hobbs Act expressly embraces attempts to obstruct commerce by robbery or extortion, id., as well as the completed obstruction. So the question is merely whether commerce would have been obstructed had the attempt succeeded. United States v. Bailey, 227 F.3d 792, 797 (7th Cir. 2000); United States v. Jamison, 299 F.3d 114, 117-20 (2d Cir. 2002). It would have been. Had Cahill been forced to withdraw money from an ATM, the withdrawal would have been an interstate transaction, a transaction in commerce.

United States v. McCarter, No. 04-1684, Slip op. at 2-3 (7th Cir. Apr. 27, 2005) (Posner, J.).  As I noted in this post - Federal Powers and Cell Phones - in the Seventh Circuit, using a cellular telephone provides federal jurisdiction.

Chickens, Guns, and Commerce

The great Judge Friendly once asked: "What is chicken?"  Frigaliment Imports case.  Almost a half-century later, we need to ask: What is an article of commerce?  More specifically: When does an article of commerce cease to be an article of commerce.  Why does this matter?

After Lopez, Congress reenacted the Guns Free School Zone Act with one added proviso: the gun must have moved through interstate commerce.  Indeed, all of 18 U.S.C. Sec. 922 are predicated on the theory that the firearm once moved through interstate commerce.

But shouldn't a firearm eventually lose its status as an article of commerce?  Isn't it silly to say that a firearm you've owned (and that has never left your residence) for twenty years remains an article of commerce?  It's not answer that a firearm could be sold once again.  To adopt this position would be to adopt the position that anything that can be sold is an article of commerce, and therefore, can be regulated by Congress.

In a recent Hobbs Act case, the conviction was predicated on the extortion of two pieces of art work that had travelled from Russia.  But the art work was already in America, where it was to be sold intrastate.  It's one thing if the goods had been stolen once they were in the stream of commerce.  But once downstream, don't they stop being commerce?

Oh No He Didn't

Subtitled: Why the Eight Circuit's site is da bomb.

Professor Berman of SL&P fame today had the audacity to praise the District of Maine's website without mentioning the wonderful Eighth's.  I did check out D. Maine's site, and it's indeed impressive.  It's also aesthetically pleasing (the pictures at the top of the screen are pleasing to this primate).  But it still doesn't top the Eighth Circuit's, which is the best judicial site I know of.  For these (and undoubtedly, many other) reasons:

First, its opinions are available promptly.  With most other federal circuits, it's a crap shoot whether its opinions will be on time (or whether it's even on anything other than a loose schedule).  The Eighth Circuit always has its opinions up in the morning. 
Second, its case summaries provide the reader all relevant information: the holding; the panel's members; and whether it's published.  Other circuits make me open a .pdf file to obtain this information.
Third, the opinions are well-written, and usually no longer than necessary.  Judicial economy should also apply to legal opinions.
Fourth, they make almost all briefs and oral arguments available.  This leads to transparency: I can read the briefs if I think the panel is misrepresenting the facts.
Fifth, I've never read a decision where I shook my head and said: "Man, that's just wrong."  The Eighth Circuit is to  jurisprudence what the Midwest is to values - not always right, but rarely unreasonable.

Excluding selfish reasons, why do I care whether a court's website is well-designed?  It's important the justice and the appearance of justice.  When a court's site is inaccessible, it tells me, as a member of the public, that I don't matter. 

"Who cares if you can easily access our site or determine what we have done.  Who cares if you can check the parties' briefs to ensure that we have not omitted any crucial point of law or fact?"  Such an attitude could indeed evidence a hostility towards individual rights.  I don't think it's coincidental that the Fifth Circuit has the least accessible website.

Bubba Speaks; PC Creeps

I enjoy traveling in the South. It's like traveling to a foreign country, but without the hassle of border patrol guards and passports. All that overt civility and suppressed rage; the South is flirtation with dark forces.

Every now and then, though, that veneer cracks, and you can smell, even see, the sulphur.

Rep. Gerald Allen, R-Cottondale, Alabama, has introduced legislation to prohibit the use of public funds for the "purchase of textbooks or library materials that recognize or promote homosexuality as acceptable lifestyle." Bubba propose the bill to protect children from the "homosexual agenda." Invasion of the Body Snatchers Part II?

His hope is to ban novels with gay protagonists.

What to do with the offending material: "I guess we dig a big hole and dump them and bury them."

His comment is unclear: Was he referring to the banned literature, or to homosexuals?

Should his fellow lawmakers succumb to mass homophobic convulsions and pass the bill, the Constitution as currently interpreted will make short work of it on First Amendment grounds. Short work, that is, until the religious right packs the courts.

Incensed by my slur against the South? Okay, we've got our own blend of homegrown idiocy here in New England. It's called political correctness, or PC, for short.

A florid example of its excesses?

Southern Connecticut State University just barred a student from a poety class for two weeks. Why? The nitwit teaching the class felt threatened by a poem he wrote.

Kelly Rifter somehow bluffed the university into thinking she was literate enough to teach poetry. Rifter has a three-year old daughter. In her class is one 36-year-old student named Edward Bolles, a married father of two.

Rifter feels threatened by a poem in which a Mexican makes love to the daughter of a racist professor and is invited to dinner at the professor's home. The professor is shocked to see that her daughter's paramour is a lesser mortal.

The poem's all right. It is witty and has moments. But it is no threat. The student says it is about globalization; it reads more like a jab at racism.

Whatever it is, the professor's reaction is ridiculous, and the university is to be shamed for banning the student from class. Take a look at the poem: This is a threat?

So, we can't write about homosexuals in the South, and in the Northeast, poking at racism is taboo. I say keep writing about both until we can simply accept differences. Isn't that the point of literature, to yield a view of the other as humanly possible?

Small and Pasquantino: Food for Statutory Interpretation Wonks

Today the Court handed down two opinions: Small v. United States and Pasquantino v. United States. There has been much talk about these cases, but people have ignored the interesting statutory interpretation issues.

When I blogged about Small v. United States (August 1, 2004), I wrote:

[Y]ou will also recognize that the argument that we possess a 2nd Amendment right to individual firearm ownership might also inform the Court's statutory interpretation. To wit, a statute so be construed so as to avoid a constitutional question. Thus, the Court could avoid the constitutional question whether a felon should be entitled to own a firearm by saying Small's conduct is not covered. Unfortunately, the Court has never said that the 2nd Amendment recognizes our natural law right to keep and bear arms. (The Ninth Circuit says we don't have a right to gun ownership. The Fifth Circuit disagrees.) However, it would be better for the Court to avoid the potential constitutional question by holding that Japanese convictions are not covered by the statute. If Congress disagrees, it can amend the law.

Yet Justice Thomas and Justice Scalia, who would have held Small criminally liable, refused to interpret Sec. 922 narrowly to avoid this constitutional question.  What's odd about this is that both justices are considered friendly to the individual rights view of the Second Amendment.  And it's not like they haven't endorsed the important statutory canon before. 

In Jones v. United States justices Scalia and Thomas joined Justice Ginsburg's unanimous opinion for the Court, holding that the federal arson statute must be interpreted narrowly to avoid a federalism question.  Why did they refuse to apply this well-established canon of construction in Small?

UPDATE: Juan Non-Volokh makes a similar point here.

The issue in Pasquantino was: "Whether the federal wire fraud statute (18 U.S.C. § 1343) authorizes criminal prosecution of an alleged fraudulent scheme to avoid payment of taxes potentially owed to a foreign sovereign [ ]." A 5-4 Court answered, yes.

Given such a closely-divided Court, shouldn't the Court have nonetheless reversed Pasquantino's convictions?  Many (including Justice Thomas, who authoroed Pasquantino) have argued that in qualified immunity cases, the law is almost per se not clearly established when the Court disagrees via a 5-4 vote.

Shouldn't a more robust rationale apply in a criminal case?  After all, the worst thing that happens to a police officer denied qualified immunity is that he'll be held civilly liable: the worst thing that happens to a criminal defendant is that he'll go to prison.   

If four justices of the United States Supreme Court think that a statute does not apply to the challenged conduct, then shouldn't one layman be given the benefit of this doubt?

Fortunately, Justice Ginsburg makes a persuasive (though ultimately nonprevailing) argument for lenity.

Finally, the rule of lenity counsels against adopting the Court’s interpretation of §1343. It is a “close question” whether the wire fraud statute’s prohibition of “any scheme . . . to defraud” includes schemes directed solely at defrauding foreign governments of tax revenues. See id., at 33. We have long held that, when confronted with “two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language.” McNally, 483 U. S., at 359–360; see United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221–222 (1952).

This interpretive guide is particularly appropriate here. Wire fraud is a predicate offense under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §1961(1) (2000 ed., Supp. II), and the money laundering statute, §1956(c)(7)(A) (2000 ed.). See Cleveland, 531 U. S., at 25. A finding that particular conduct constitutes wire fraud therefore exposes certain defendants to the severe criminal penalties and forfeitures provided in both RICO, see §1963 (2000 ed.), and the money laundering statute, §1956(a), (b) (2000 ed. and Supp. II).

Slip op. at 38 (Ginsburg, J., dissenting).

UPDATED - The Court's 2004 Term

[UPDATED 3.26.05.  I improved the chart and made other editorial changes, including omitting a prediction for Wilkinson v. Austin - not sure why I included that as a likely candidate for this week.]

Using my limited abilities, I created a chart which does the following:

    * denotes the cases on the Court's docket
    * links to the respective briefs
    * provides the oral argument date
    * links to the respective slip opinion, if applicable.

In red font are those opinions which I think are likely to be handed down within the next couple of weeks. For those cases, I summarized the legal issues.  Please note that the chart is neither perfect in form or substance; but it's better than nothing.  If you spot any errors or omissions, please leave a comment. Better yet, download the file, improve it, and post it on your own blog.  Anyhow, click here to access the chart.

It seems pretty likely that this week we will see Small v. United States; Pasquantino v. United States; and Wilkinson v. Austin.  [Ed's note: They were handed down today.  Small is here; Pasquantino is here.] 

UPDATE (4.26.05): On Wednesday (that's tomorrow if you're reading this today) I expect to see Miller-El v. Dretke and either Granholm v. Heald or Veneman v. Likestock Marketing Ass'n.  The reason I don't expect to see both Granholm and Veneman is because they're both blockbusters.  The Court enjoys publicity: spreading out the "big" cases over the weeks ensures that all eyes remain on One First Street.

If you don't trust my chart (and you shouldn't), you can search the docket here; the oral argument calendar here; and slip opinions here.