Archive for January, 2013

On Christian law schools

January 23, 2013

A planned Canadian law school at Trinity Western University has come under fire for a curious understatement of the Bible’s views on homosexuality. In what I understand to be a potential violation of Canadian human rights law, Trinity Western proposes to maintain, at Canada’s very first Christian law school, a behavior code that forbids students from, among other things, “sexual intimacy that violates the sacredness of between a man and a woman.

It shouldn’t be surprising that America already has a few Christian-themed law schools, the most famous of which probably is Regent University. This rigorous 3-year program, founded to spread “Christian leadership” throughout America, has historically woefully underperformed on bar passage and stunningly merely broke even with the Virginia state average last year. Some lures of attending Regent include a robust alumni network of Grand Inquisitors for the Grand Ole Party.

And Regent is actually one of the best Christian law schools around. California’s best Christian law school achieved a bar passage rate of 38.8% over the last five years, and all of the unaccredited Christian schools mentioned in that study have bar passage rates ranging from 0% to the 38.8% figure. The Christian law schools that aren’t busy cooking the books instead just come right out and charge you first-tier rates for last-tier lifetime income returns and last-tier job placement – lucky for all the gay students who can’t go to Liberty University.

I think that the main goal of law schools, which is to teach its students the law in a way that makes them fit to represent and advise other people, is fundamentally at odds with Christianity for a number of reasons. One of them is that Christianity has never had a good relationship with education in America. From Scopes to Dover, Christians have opposed honest, accurate science education where it contradicts their scriptures. Likewise with history, especially where it concerns the principles of religious liberty and secular democracy.

I can’t imagine how the law could be any different, especially since Christianity’s aggression upon American education is so entwined with the spectacular legal battles that it has been losing almost since the beginning. How could a Christian Constitutional law professor accurately describe the last fifty years of 1st Amendment jurisprudence without completely dispiriting any aspiring young Christian lawyer who envisions the Christian America promised him by Liberty University or Ave Maria? How is a Christian law school student supposed to get a good understanding of the theories of punishment when they’ve been told all their lives that all wrong-doing is pre-forgiven, that right and wrong don’t matter if you apologize to the right judge?

The fact is that the main problem is that religious was our first attempt at law as much as it was our first attempt at philosophy, and the law has moved on. Society has decided that it is no longer in our best interest to forbid homosexuals from full participation in the economy. Society has decided that apology does not waive crimes. We’ve taken the power of sanctuary from the Church and given it to embassies. We no longer rally nations by papal bull, we do it by international covenant. Churches can no longer freely invalidate marriages or contracts. We don’t permit the Levitical sale of slaves. We now treat the very things God ordered the Israelites to do as war crimes.

A Christian law school is an Apothecary Medical School, it is an Astrological Astronomy School, it is a British government degree granted by druids. Christianity is not just a freewheeling worldview that can be easily imposed upon any body of knowledge – Christianity and its Jewish predecessor texts are themselves a legal theory. Christianity is a theory of justice which says that a third party can forgive disputes between two others on his own behalf. Christianity is a legal theory which says that the law was frozen in place towards the end of the 1st century AD and that anything further is a falling-away. Christianity is a legal theory which says that there are no sovereigns on Earth, only ethereal ones.

I don’t mean to say that I think that Christian law schools teach Old Testament law. What I think is that Christian law schools stem from an intellectual milieu which holds that everything different about American law (or Canadian law) and Biblical law is an aberration. This is the problem. This is why you will never get good results from such a university.

So you’re thinking about applying to law school: tips for new applicants and what to do when you get there

January 16, 2013

Ah, January. A new year, a new crop of thousands of college students entering their final semester, and with them, a new crop of of law school applicants. With law school applications plummeting and law schools scrambling to keep quality up and price down-ish, after a year-long barrage of articles about what a terrible return you get on your law school investment, and deans making just shy of a million a year at unranked schools, a down legal job market, the rise of legal self-help firms like legalzoom and rocketlawyer, the sudden combustion of a couple of huge law firms over the last few years, plus a lifetime of hearing jokes about what a bunch of jackasses lawyers are, you’re still apparently thinking about applying to law school!

Good call. It’s a good investment, graduate school loans are on better terms now than they have been in years, the legal job market is improving, the online legal self-help competition everyone was worried about swamping the industry is self-destructing, starting salaries for recent grads are up to $160,000 at half of BigLaw, and best of all, with applications (and average accepted LSAT scores) down, the competition you’re being graded against is dumber than it has been in years. 

So, you’re going to get a lot of swell tips about applications ranging from the obvious (make sure it’s a school you want to go to before going to it) to the impossibly, ridiculously, frankly stupidly obvious (make sure you can afford the first semester’s tuition before you go to your first class), to the false (pad your application with extracurriculers, internships, etc.). 

The fact is that the application process is very simple. Most schools use a metric for admissions that weighs your LSAT score against your GPA at a 2:1 ratio, uses extracurriculers as a tie-breaker, and requires recommendations only to prove that at least two adults on the planet like you. So don’t sweat the application.

But sweat the shit out of the LSAT.

It’s basically a mix of logic, argumentation, and reading comprehension, and the best thing that you can do to prepare for it is to take a class in formal logic, and then get an A in it. I used formal logic notation on the LSATs so much it felt like I was cheating, and I was very happy with the score. But other than that, a Kaplan LSAT course is about as helpful as getting a good night’s sleep the night before the test – which is to say, very, very helpful. Take the Kaplan course if you can afford it, otherwise get the Princeton Review books or similar book series, and use them. Then take the test on a fullish stomach after a restful sleep. Be awake for at least two hours before the test.

And then, congratulations – you’re a law school student.

So what do you do when you get to law school? Law school is something I’ve done. I’ve had semesters on Dean’s list. I’ve bombed tests and aced them. I’ve had friends self-destruct and had friends transfer into the Ivy League. There’s a lot of ways to do law school wrong, and a few ways to do it right. You’re going to get a lot of advice about how to do law school right, and I’m sure most of it is good advice, but it isn’t complete advice. There are some things so obvious that you wouldn’t think you’d have to say it, but apparently, after years in school, I’ve learned that you actually do. To wit (these are all pieces of advice I’ve seen other people at law school not follow):

  • Don’t do a ton of blow, all the time, at school.
  • Don’t go to class drunk.
  • Don’t take a final drunk.
  • Don’t tell everyone you know how much more practical experience you have than they do owing to your extensive criminal record.
  • Do your reading.
  • If you sit down to the final and really, truly, honestly know that you’re fucked beyond belief, just get up and leave. Don’t then come back, start yelling, sweep things off of peoples’ desks, have to get physically ejected from the building, then never be seen or heard from again.
  • Join the night classes and get a day job. It’s one extra year of school to look ten times more impressive to… everyone, including employers.
  • Seriously, just do your goddamn reading.
  • Brief smarter, not harder.
  • That bullshit-sounding advice you hear about networking is all good advice, and if anything, it’s understated.
  • Stay on top of your goddamn reading.
  • Don’t do adderall unless you have a prescription.
  • Don’t sell adderall to your classmates unless you’re a pharmacist and they have a prescription.
  • Don’t join the student government then tell too many people about that one time you ran from an undercover cop who saw you smoking a joint because you had a half-dozen unprescribed adderall pills in your pocket.
  • Don’t start a fight with your torts professor where, long story short, you’re not allowed to email her anymore.
  • The Socratic method is only scary if you don’t do your reading.
  • Law school is not an extension of college.
  • Law school is a trade school. Immerse yourself in your trade. Stay up-to-date on current events in the law. Spend your free time reading classics of law or about famous lawyers. Talk about it. Blog about it. Argue about it. Yell about it. Lecture people who know less about it than you do. Breathe it in, breathe it out. You don’t have to love what you do, but you’re at a point in your life where you have to know a lot about what you do.

Basically, don’t be an idiot, and do your work – advice you shouldn’t have to give that everybody needs to hear.

California court: corporations aren’t passengers

January 15, 2013

Called it: when you ride with a corporation, you ride alone. Or, corporations are people, but a briefcase full of papers isn’t a person. Or, a briefcase full of papers is a person, but not for the purposes of California’s high-occupancy vehicle laws. Or, corporations are people, and could be passengers, but California’s high-occupancy vehicle laws merely requires a bigger briefcase or more papers.

The analogy between corporations and people is imprecise, and of course it isn’t the whole picture. Corporations aren’t people, but they don’t have to be in order to fall under the ambit of some of the Constitution’s most important protections. What the California court did here was little more than to invite the accused to appeal his insignificant conviction, to play out his legal theory in the appeals courts. I give it very little chance of success, but it’s possible. What’s really important is that my prediction as to the outcome of this case was right.

“Prosecutorial overreach:” how grand theft, breaking and entering, and hacking made Aaron Swartz a martyr

January 14, 2013

Aaron Swartz died a criminal.

Not long after getting fired from his job at reddit, internet wunderkind Aaron Swartz killed himself, ostensibly over what his estate is referring to as “prosecutorial overreach.” In an age where theft of intellectual property, plagiarism, copyright violation, and piracy are more widely known as “internet freedom,” it’s hardly surprising that the internet is rallying to the cause of this narcissistic, self-absorbed, whiny little freedom fighter.

To be specific, it is the theft of tens of millions of dollars worth of JSTOR articles, breaking and entering into MIT, hacking MIT’s wi-fi network, and then distributing his stolen merchandise to whoever wanted access to it that the prosecution wanted to press against Aaron Swartz. Against these various gratuitous crimes, Aaron faced the merciful (and frankly, net profitable) penalties of up to 30 years in prison and a meager $1 million fine, against the tens or hundreds of millions of dollars worth of subscription-only content that he stole.

If Aaron Swartz had been a bank executive or other Wall Street “fat cat” accused of stealing tens of millions of dollars from an internet publisher, his suicide would have been widely regarded as a satisfying case of justice done right. But because he was a bit player in the social media industry, with ties to internet nerds’ favorite hangout, reddit, he’s being lauded as a hero. This petty criminal, who faced merely the horrifying prospect of actually facing a judge and a jury to make his case that ripping of JSTOR for tens of millions of dollars after breaking and entering a major university was somehow in service of “freedom,” who was staring down the opportunity to explain himself to the shamelessly laudatory internet pirates who worship his name, killed himself, rather than make his case.

And now he is a hero. Good for him. I suppose that beats owning up to your actions. I suppose that beats living up to his reputation as a freedom fighter. I suppose that beats doing the right thing and admitting that he broke the law.

The widespread consensus seems to be that the prosecution in Swartz’s case somehow “intimidated” him into suicide, but lets cut the crap and be honest for a second: if Swartz had been accused of stealing millions of dollars worth of tangible assets, or if his victim had been flesh-and-blood humans instead of flesh-and-blood humans who own a business like JSTOR, or if his breaking-and-entering victims had been private homeowners instead of a major university, nobody would give a second thought to the minuscule sentence he faced compared to the gravity of his crimes, except possibly to say that it was too lenient.

Internet heroism is a curious thing. It is as though any crime is pre-forgiven by internet users if it is conducted entirely over the internet. The internet is a place where a cabal of child pornographers who torment the families of dead children can become heroes just for turning their guns on easy targets like Scientology. It is a place where if you rip off a blogger’s recipe you are suddenly a villain, but if you rip off tens of millions of songs and movies, you are a freedom fighter. It is a place that canonizes petty criminals like Aaron Swartz in the name of freedom and democracy that makes no effort to convince the legislature to legalize blatant theft on the scale committed by Swartz and the pirates and plagiarists he imitated.

And for trying to punish Aaron Swartz for breaking the law, with charges far less than his crimes, the prosecution in his case now faces a petition to remove the lead prosecutor from office. For doing their job. If anything, the prosecution low-balled its charges. And it’s a shame that Aaron Swartz is dead, but if his reason is solely the charges that he faced, then he misinterpreted the mercy being shown him with such lenient charges. He proved his cowardice by tucking his tail between his legs and running when he learned that real life actually imposes consequences on you for breaking the law. And now the internet is tripping over itself to turn him into a cause celebre because of his cowardice, because of his completely unreasonable shock at realizing that, sometimes, you can actually get in trouble for things you do over the internet

#mintthecoin

January 11, 2013

There are a ton of unconstitutional ways that the executive branch (the President and his various assigns) could handle the manufactured fiscal “crisis” currently filling the Congressional paybill. The President could do what a lot of people are doing and misread the 14th Amendment’s “public debt” clause to mean that the President has unilateral power to raise the self-imposed “debt ceiling,” or even to directly cut and authorize checks drawn on the Federal Reserve or on the Treasury to pay outstanding bills. The Treasury department could do likewise. Or, we could just default on or obligations and let the chips fall where they may.

But there is another way. A way that started as a half-tongue-in-cheek but has become a startlingly plausible alternative to letting Congress play out its sectarian shennanigans until the same thing that always happens happens (we hit the arbitrary, self-imposed deadline and then extend it a few months). A way that just screams “crazy enough to work.” We could just mint a $1 trillion (or $2 trillion, or $10 trillion)-dollar platinum coin, drop it in the ol’ piggy bank, and use it to pay down existing debts or extending our borrowing power in the future.

Consider it quantitative easing on steroids. Instead of diverting the money from elsewhere, at the expense of the very programs that are at stake in the existing debt ceiling fight, the money comes from where all money comes from: nowhere in particular.

The easy question is: is it legal? The short answer is, yes, but it’s complicated why it’s legal. The Constitution authorizes Congress and Congress alone to mint and produce currency. But the Constitution, and there’s too much caselaw agreeing with this point to even know where to begin citing, permits Congress to delegate its authority to various federal and even some state agencies. One of those agencies, staffed by executive appointment with the advise of the Senate and subject to Congressional funding allocaton, is the Department of the Treasury, one of whose many tasks is to oversee the creation of currency (not to be confused with the creation of money). Down to the size in millimeters and metal composition ratios, there are very close controls on the standard denominations.

But there’s on ambiguous coinage allocation: platinum coins. Congress saw fit to create, under 31 USC §5112, the discretionary power of the to Secretary of the Treasury to “mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.”

In short, whether or not the trillion-dollar coin gets minted is legally up to the sole and complete discretion of the Treasury Department. In practical terms the Treasury would probably not take such extravagant liberties with its currency powers without the advise of the President, the Congress, or both, but legally speaking, Congress has fully delegated its authority in minting to the Treasury, and as part of that delegation, it let the Secretary determine the value of platinum coins at the time of their minting.

Why would Congress do that? Because creating discretionary powers in fiscal bodies is a really good way to give them power to deal with sudden catastrophes. Probably what Congress had in mind was something like, suppose there were a sudden global shortage either of copper or of liquidity in copper assets. Better give the Treasury the power to start churning out one-cent platinum coins at a moment’s notice until the supply chain settles down. Seems sensible enough, but unfortunately, when you make open-ended crisis management rules, you create open-ended crisis management rules. The Treasury currently has the effective power to #mintthecoin at its sole discretion, thanks to a well-intentioned Congressional delegation written by people who, shockingly, did not foresee the monumental incompetence that has drawn us once again to the shores of sovereign insolvency.

So yes, it is legal. Is it a good idea? I haven’t got the economics acumen to answer this clearly, though I invite comments on that point. One thing I can say, though, is that I am skeptical of the supposed inflationary apocalypse that would result, for a few reasons. Suppose we drop a $2-trillion platinum coin into the Treasury tomorrow, apportioned specifically for existing liabilities, ie, bills the Congress already has on its tab. That means that money going out to pay those debts would not really be any new money, it would merely be currency representing amounts already accounted for by the various states, firms, and individuals (a huge fraction of America’s sovereign debt is owned by private citizens in the form of T-bills and the Social Security trust fund, for example). But it’s still money that, originally, would have to be diverted from elsewhere, that is now coming from nowhere in particular (which we do in slow-motion in normal economic circumstances).

Against the alternative, though, #mintthecoin is fast becoming a perfectly good idea. Congress has proven incapable of addressing the issue; like bad law school students, they let the paperwork get closer and closer to the deadline, they stress out over it and raise hew and cry over basic principles of government, then it comes down to the wire and they push the problem off by asking the global markets for a brief extension while the various sides recalibrate their political schemes to better blame the other party for the next round of premeditated negotiation failures. I say, concede that Congress has backed the economy into a corner, concede that representative democracy occasionally yields such absurd results as this, mint the coin, and then let Congress explain what its better alternative was. As Harvard Law School’s resident internationally-renowned sage of the law Laurence Tribe explains:

 This is a situation where the political and economic considerations, not the legal considerations, have to drive the decision-making about this option. It’s certainly a lot better from just about every perspective than having the nation stuck on either horn of the very real dilemma you outlined below, which I agree offers no plausible way out as long as enough leaders in Congress insist on playing Russian Roulette with our economy and risking our full faith and credit by using the debt ceiling as a bargaining chip as they are threatening to do.

Corporations aren’t passengers!: Citizens United and corporate ontology

January 7, 2013

Cute story out of California: getting his wish at last, a California man is pulled over with “corporation papers” in his passengers’ seat in the carpool lane. Insisting to the arresting officer that, on the logic of the infamous Citizens’ United case, the corporation is a person and a passenger, he offers himself as a (doomed) test case for the opposition to Citizens.

I say doomed for a few reasons:

  • The Supreme Court has not changed in any relevant way since Citizens was decided (one Democratic appointee, Stevens, has since been replaced by Kagan),
  • Citizens has been upheld against significantly more plausible challenges than this, and so is thoroughly embedded in the fabric of American jurisprdence,
  • Citizens itself follows a long line of Supreme Court decisions chipping away at the power of the government to regulate political speech by corporate entities, unions, and interest groups, and so is not itself even the original problem-case anyway.

I think that we have to accept the fact that Citizens is here to stay. The Supreme Court has decided that it is impermissible, on constitutional grounds, for the government to limit the ability of private interest groups to use money to influence elections.

You should read the text of Citizens. It’s a fascinating case, decently argued. And you’ll notice that phrases like “corporations are people” are entirely absent from the opinion. That’s because Citizens does not rely on the assertion that corporations are people, or on any pseudonym thereof. Rather, the case asserts that it is not only human persons that are eligible for constitutional protections, that corporations, unions, and interest groups are some of the non-human persons eligible for those protections, that those protections ought to include participation in political discourse, and that unlimited cash contributions from undisclosed sources is an essential component of such entities’ participation in political discourse.

Each element of the logical progression seems reasonable up until the last one. Certainly, it is not only humans that are protected by the Constitution – churches, political parties, protest marches, two people co-signing a letter to the president, none of which is a human person, are all obviously protected by the Constitution. That corporations are among those entities protected by the Constitution is an ancient component of Constitutional jurisprudence: while the Supreme Court has sometime drawn a very marginal distinction between “personal speech” and “commercial speech,” the latter of which might be something like advertising, both are said to flow from the First Amendment, and the difference between them is merely a matter of degree (for example, the state can almost never punish you for lying unless your lie hurts someone, but it can  punish advertisers who lie before anyone is actually hurt by the law). And I am certain that, if any rights at all are to be protected by the Constitution, speech is way up there, and political speech is the most important kind of speech – it is the kind of speech the Framers had most clearly in mind when drafting the protection.

But it is the final element that befuddled commentators and academics the most. Rather than forbid the government from regulating the content of political advertising, the Supreme Court essentially forbade the government from regulating the dollar amount of political advertising. They even created an amazingly thick wall of privacy for private interest groups, PACs, and “Super-PACs:” they don’t have to disclose the sources or the specific outflows of their income… but you and I sure have to! You and I are forbidden from omitting our revenue sources from our tax returns (unless you assert your 5th Amendment right not to disclose as such, but hey, good luck with the audit afterwards), but a PAC is not. A PAC isn’t a person – according to the Supreme Court, it deserves more privacy than a person does! Outrageous!

But it kind of makes sense when you think about it.

I’ve already acknowledged both that the entities included under protections for political speech do not include just human persons and that some of the protected entities are interest groups. The point of attachment is between the Constitution and the entity’s speech – not between the Constitution and the entity, and it’s a whole additional degree of separation between the Constitution and contributors to PACs qua contributors to PACs. If the Constitution’s protections attach to the speech itself, that may also include a certain privacy right (and the Supreme Court has spent a century building on the Constitution’s implicit rights to privacy granted to entities under its ambit, including businesses). Just as individuals do not have a right to total anonymity, neither do PACs, which is why Citizens preserved the government’s right to compel PACs to disclose their responsibility for political advertisements, but not the sources that made the advertising possible – exactly as individuals, even though they have no total anonymity rights, are certainly not required to disclose the sources of their political speech. When you make political speech, you aren’t required to disclose what books, what media or culture, what political parties or advertisements influence your speech. You’re only required to attach your name to your vote at the ballot box, not your political influences. And so it is with PACs.

So it makes sense. But is it correct?

PACs aren’t people. I know that, you know that, and the Supreme Court doesn’t disagree. PACs are created on paper and operate on paper – but a PAC is not just paper, and neither is a corporation. The gentleman mentioned in the news article that opened this post says he has “corporate papers” in his front seat. Lets assume he has every piece of paper associated with some corporation – every filing document, every ’33 Act disclosure, every piece of stock, every minute from every board meeting, everything, and assume there’s no office, no product, no cash, no bank account, nothing but a CEO (the gentleman in question) in the driver’s seat and a stack of papers in the passenger’s. Are there two entities in that car sufficiently similar to each other to require them to have roughly similar rights, with a tilt towards greater privacy rights for the other?

The human person is a physically contiguous entity. It is a brain supported by various fleshy bits. It undergoes physical and physiological change. It turns 18, it dies, it gets sick. Corporations (or interest groups, unions, PACs, etc.), however, are not physically contiguous entities. A corporation is not its offices, it is not its paperwork. Corporate filing documents are descriptions of an abstraction. An incorporation statement is a recognition of the corporate entity, not the entity itself. There is no corporate entity anywhere in time or space, there is only an aggregate of mutually-interacting pieces of paper. Sometimes corporations have offices and employees, but no office is a corporation, nor is any employee or any person at all. The corporation is a conduit of market activity.

Like persons, corporations have tax liabilities, tort liabilities, reputations, places of birth, profits and losses, parents and children, and, as expressed by their boards or officers, they have political agendas. But they do not have bodies. They cannot be passengers in cars. They are ontologically radically distinct from humans – which is completely irrelevant to the question of their participation in political speech per the analysis above.

So no, when a man and his corporate papers go for a ride, there are not two similar entities sharing a car. There is only one entity, the human person driving it, because the corporate papers in his passenger seat are not themselves an entity. The corporation is much more than its paperwork. That is why the California court in this case, consistent with the rules laid down in Citizens, could reasonably say that a person riding with his corporate papers rides alone in a carpool-only lane even though corporations are “people” insofar as “person” in that specific context means nothing more than “an entity eligible for certain limited Constitutional protections.”

Is Citizens United decided rightfully? Four members of the Supreme Court, each of whom is significantly smarter than I am, think not. The majority of Americans think not. Frankly, I think not. I think that the Supreme Court exaggerated the similarity between human persons and corporate entities in a way that has proven detrimental to the very core of the democratic process. But not because PACs shouldn’t have speech rights. It is their privacy rights that bother me.

Returning to the analysis above, humans do not need to disclose the influences on their political speech, and neither do PACs. But to infer the latter’s privacy rights by analogy to the former falls prey to the very same analytic flaw that I am trying to combat, which is the popular misunderstanding that Citizens requires that “corporations are people.” Corporations are not people and that is beyond serious dispute. That is why I worry about selectively analogizing them to persons. The privacy right created by Citizens is created by analogy to human persons’ privacy rights, but the entire strength of Citizens rests completely on a discontinuity between humans and corporations, that the Constitution does not treat corporations as human persons, only that the Constitution’s ambit is broader than human persons in the first place.

Citizens makes I think a perfectly acceptable case that non-human person entities should be protected where political speech is concerned. The case that it does not make nearly as effectively, as is reflected in the considerably more vigorous dissent on this point than on the “personhood” or “person-like” point, is that non-human person entities should be protected where privacy is concerned. Sensible Constitutional jurisprudence should begin not by trying to throw as many human protections onto corporations as possible, but by completely separating humans from corporations and seeing which Constitutional protections attach to humans (certainly all of them) and which attach to corporations (only the most essential ones, and political speech is essential).

Legal pseudoscience: Sovereign Citizens and the 1933 Banking Act

January 6, 2013

Every field has its pseudoscience, and the law is no exception. On the innocent end of the spectrum are the simple errors: “a cop has to tell you he’s a cop,” your “one phone call,” all the rest. But on the other end you have income tax deniers, sheriffs-onlyers, “natural citizens” agitators, all the general melange of legal bizarrity that altogether make up the loose far-right loony-bin colloquially described as the ‘Sovereign Citizens movement.’ There’s a good piece up on the Daily Beats about them from last week, which focuses on one of the core legal pseudosciences of the Sovereign Citizens movement: the 1933 Banking Act.

Before getting into the details, it is important to understand that while it may be an interesting academic exercise merely to dissect the gross errors of fact and law asserted with great random in Sovereign Citizens circles, it should be appreciated that, in no uncertain terms, the Sovereign Citizens movement is dangerous. Participants in that ideology are closely affiliated with the militia movement, and they have committed crimes up to and including murder operating under the express claims of that movement. The movement is hopelessly bound up in a long tradition of anti-Semitism, racism, anti-government terrorism, and the same kind of profound delusional paranoia one might expect to see in an insular doomsday cult. In a nutshell, Sovereign Citizens believe that the United States government is illegitimate, that most or all of its laws are illegitimate, and on a good day the furthest authority they will concede to anyone but Jesus and their guns is that states have the right to empower sheriffs to carry out the law. Anyone else they see as an agent of the United Nations, of international (Jewish) banking interests, or of Israel.

The Sovereign Citizens movement is the Tea Party with its hair let down. There’s a reason that its ideology is preserved more or less intact in the corpus of Ron Paul’s dwindling supply of acolytes: it is libertarianism run amok.

A big chunk of their rhetoric comes from their broad misreading of the 1933 Banking Act and the transition from fiat gold currency to simple fiat currency. I say “fiat gold currency” because a common, nonsensical trope of both the Sovereign Citizens movement and advocates of a return to the gold standard at-large is that the value of gold, or silver, or some other shiny metal in finite supply culled from the Earth’s crust, is somehow more “real” than currency valued at an exchange rate on a finite supply as determined by the Federal Reserve instead of geology. But that’s too broad a topic to explore much more closely here.

If you have the stomach for it, there’s an hours-long interview series between what so far as I can tell is several insane asylum inmates discussing how the Banking Act of 1933 is nothing more than a complete forfeiture of the United States government to shadow-governments that go by such subtle noms-de-plume as “the Jews.” The speakers in those interviews seamlessly and easily confuse the ’33 Act with the end of the gold standard, which is far from their most grotesque distortion of a perfectly sensible banking insurance program.

Because that’s what the 1933 Banking Act is: insurance. It established the FDIC, and required banks to pare their speculative investments from their traditional banking operations – and this latter function was significantly de-stressed in subsequent amendments to the Act. The legislation more germane to their semi-literate dogma is the Emergency Banking Act (an understandable confusion for people of this level of seriousness, since it’s from the same year and has the word “Bank” in it somewhere), which was little more than a recapitulation of the authority of the federal government, as established in the Constitution, to borrow on American credit, to create uniform bankruptcy codes, and to create currency. States are expressly forbidden from creating their own currencies, and the Constitution grants broad powers to the government to decide what ‘currency’ actually is.

The Emergency Banking Act does what virtually all Congressional legislation does: it delegates Congress’s powers to somebody else. The EBA in particular delegates Congress’s power to mint and control currency to the Treasury Department, and unites banks that are potential bailees for government-backed securities under the auspices of the Federal Reserve. The ’33 Act is basically a long-term version of the short-term guarantees of bank solvency promised by the EBA, all of which are, in my view, mere recapitulations of the positive duty placed on the government by the 14th Amendment to respect the rights of creditors of the US government.

But in the eyes of the Sovereign Citizens, the EBA and the ’33 Act together constitute a complete secession of American sovereignty to international banking interests (this is an innovative synonym for “the Jews” in Sovereign Citizen literature). By delegating Congress’s power to the Federal Reserve to control currency levels, rather than the varying amounts of gold in the Earth’s crust, the government apparently turned citizens themselves into currency, and the rails are so far behind already that it’s hard to remember where we started. With the grace and aplomb of a Tim LaHaye novel, Sovereign Citizens interpret a (quite successful) federal insurance program designed to save a banking industry on the brink of collapse from its own excesses into a global human trafficking scam in which Social Security numbers are the new physical anchor for American currency and apparently Jews or the United Nations or somebody scary owns all your money. And since the government has capitulated to the “international bankers,” there really isn’t a government anymore – and so no valid lawmakers in the federal government, and so no more federal law, and certainly no valid income taxes.

If you want me to connect the dots, I can’t, because there are no dots to connect. The Sovereign Citizens movement is such a menagerie of frankly archaic xenophobia that it’s less of a coherent game of ideology and more like a game of word-associations played by militiamen and bored Ron Paul fans to pass the time between target practice and tax-evasion seminars until Jesus comes back and re-issues golden Treasury certificates to all the good Christians and roasts the rest of us on a pyre of unbacked fiat currency. There is little actual argumentation to rebut in Sovereign Citizens literature because its core doctrines are simply bare erroneous statements about laws that anybody can read.

Perhaps there is no better representative of the jurisprudential miscarriage than James Traficant. A celebrity in Sovereign circles, Traficant made a name for himself championing the rather creative hypothesis that the Emergency Banking Act formally dissolved the federal government in 1933 by declaring the federal government to be bankrupt. In a 1993 Congressional floor speech, he offered the chronological noodle-scratcher that the federal government actually became a proprietary of the United Nations in 1933 – 14 years before the United Nations existed – and, between that and being bankrupt, ceased to exist. Never mind that the United States government hasn’t been bankrupt since the days of the Articles of Confederation. Never mind that neither the EBA nor the ’33 Act say anything about the insolvency of the government (rather, they are peripheral guarantees of its solvency). What’s important is that a lot of scary-sounding things (United Nations, “international bankers,” World Trade Organization) are involved, and that somehow going bankrupt simultaneously makes an entity 1) stop existing, 2) the property of the United Nations (before the UN existed; perhaps it was merely insolvent?), and 3) exist “in name only,” as opposed to all of the other governments that are actual flesh-and-blood golems.

Mr. Traficant finished out his career defending a war criminal, going to jail with a rap sheet that could be a Sovereign Citizens laundry list (tax evasion, corruption, and slavery), and counting on the support of such Sovereign Citizens luminaries as David Duke.

It is difficult to rebut what is so grievously misstated in the first place. Where its rhetoric about the solvency, or the existence, of the federal government is concerned, the Sovereign Citizens movement is simply wrong. Pseudoscience exists in every field, from biology to philosophy, from astronomy to physics, but it exists in the law, too, and it is those who deliberately twist and undermine the rules that separate societies from mafias that do us all the greatest disservice. And the Sovereign Citizens movement is a disservice, make no mistake. I like American history. I like reading about the Constitution and the Founding Fathers. I think that the relationship between the branches and between the federal and state governments is fascinating. I think that people should read the law more, that people should be more confident in representing themselves and getting their days in court, and I think that we should be vigilant against abuses of the Constitutional system. And so do Sovereign Citizens. The difference is that the Sovereign Citizens movement does all of those things with such cavalier disregard for reality, with deliberately crass loathing for all outsiders, with such seething anger against phantom enemies, that they spoil it for the rest of us. I can’t read about the gold standard without running into their nonsense. I can’t look into the fascinating story of the Federal Reserve without encountering them (which is a shame, because the Fed is as interesting from an agency perspective as it is good for the economy). They’ve ruined sincere amateur legal discourse for the rest of us, and that may be what I despise about them the most.

“Competition is one click away:” can the Internet ever be a dominated market?

January 4, 2013

After a lengthy investigation and several compromises on Google’s part, the Department of Justice has announced that it is dropping its antitrust probe into Google’s advertising model. Throughout the investigation, a catchphrase among Google’s various agents involved in the investigation was that, no matter how restrictive their agreements with sites and advertisers, no matter how far the reach of Google’s algorithms, Google’s competitors were always just “one click away.” But is this actually a sensible defense to the kind of antitrust investigation that the Department of Justice was running? And if it is, is it ever actually possible to commit an antitrust violation on the internet?

The DoJ’s investigation in Google was on a wide variety of issues, but most of the important issues orbited the question of whether or not Google had been abusing its dominant market share in search engine traffic to leverage unfair or overly restrictive arrangements with advertisers. Note that the question is not whether Google has dominant market share, or even if Google actually is a monopoly (it isn’t), since, contrary to a widespread misunderstanding of antitrust law, it is not illegal per se to be a monopoly or to hold dominant market power. The inquiry is into the methods used to acquire the power, and how that power is used once it has been acquired. Conversely, a firm does not need dominant market share or monopoly power in order to be guilty of most antitrust crimes: two tiny boutique firms that sign an agreement not to compete in a certain city (a “geographic market distribution” violation) or mutually agree not to price below a certain level (a “horizontal price-fixing scheme,” the only antitrust violation that more or less guarantees criminal penalties on top of civil ones) are just as guilty as a giant firm.

The question becomes stickier when it comes to mergers, but fortunately for the complexity of this post, the DoJ investigation that recently ended is separate from the investigation into Google’s acquisition of Motorola, which caused quite a stir in the DoJ and forced Google to make certain concessions in the European Union.

Antitrust laws are targeted to anything that harms competition – not competitors. Google’s acquisition of a huge market share through ingenuity, good products, and dumb luck has surely been ruinous to several competitors along the way, but that’s all in the nature of the free market and is beyond the purview of the antitrust laws. What was more interesting to the Department of Justice was Google’s manipulation of search engine rankings according to deals made between Google and its advertisers. Combined with certain restrictive non-compete agreements with this advertisers made the DoJ increasingly nervous that Google was making deals in “restraint of trade-” the money phrase for antitrust violations. Google reminded the investigators simply that, for consumers looking for a better deal, competition was only “a click away.”

But the simple fact is that the antitrust laws do not really much care about the impact on consumers. The subject of yesterday’s post wrote a widely-read treatise on antitrust laws called The Antitrust Paradox making precisely the point that antitrust laws often result in worse outcomes for consumers, completely missing the point of antitrust laws, which is to protect no people, no businesses, and no products: just competition itself. Whether or not the average internet user got a better browsing experience, or if advertisers saw better returns on their marketing investments, is immaterial to the question of whether or not Google violated the antitrust laws.

In addition to being largely irrelevant, Google’s claim that its competitors are but a click away is usually simply false: Google’s advertising pervades the internet. Even if one might get to a different search engine some other way, many other search engines actually incorporate Google results into their algorithms, and the site that one actually accesses after using a search engine are often consumers of Google advertising deals. Google’s competitors were simply having a tough time getting a word in edgewise because many web content providers (including, until a couple of years ago, this blogging platform) were under exclusive deals to contract with Google’s AdSense.

Another sign of weakness in Google’s one-click defense is that Google actually made several concessions throughout the investigation; Google either knew the DoJ wasn’t going to buy its defenses, thought that it might not buy them, or had actually been told that the DoJ wasn’t going to buy them. In either event, over the course of the investigation, Google “voluntarily” changed many of its back-end practices and the structure of some of its advertising deals to make the market more accessible to competitors.

It remains an open (and legally irrelevant) question as to whether or not consumers will benefit from these deals, and if so, which consumers – advertisers? Web users? Search engine providers? The theoretical underpinning of antitrust law is that protection of competition is protection of consumers, since our laws are built to protect an economic model that assumes that competition yields the best market outcomes. Whether or not that is true is entirely beyond the purview of the antitrust laws or this post, but the fact is that the antitrust laws assume that one follows from the other. It remains to be seen whether or not consumers will fare better, or even notice, the products of the Department of Justice’s investigation of Google.

Robert Bork the Catholic

January 3, 2013

We recently lost Robert Bork, a relatively clever jurist better known for his bloody and ultimately unsuccessful Supreme Court nomination. Accurately or not, his was a nomination almost immediately attacked by a coalition of liberal interests from civil libertarians and civil rights advocates to reproductive rights advocates and the ACLU to Ted Kennedy, ultimately failing by a solid majority in the Senate. This puts Bork in the whopping 8% of Supreme Court nominees to have a confirmation rejected after a full vote by the Senate, though this was far from the end of his long and successful career.

Something you may not know, something more apropos to a skeptical blog than his CV, is that Bork is a convert to Catholicism. While a fellow of the American Enterprise Institute, his second wife (his first wife died in 1980) introduced him to the Church, one of whose agents told him that his views were closely aligned with those of the Catholic Church. He formally converted in 2003 with some hand-waving references to intelligent design and a close alignment with its social policies. While he waited until his 70s to convert (advantageous, Bork said, because by that age one was too old to commit any more interesting sins anyway so a single absolution should suffice), there are certainly hints of his affinity for Catholic thinking in his judicial career, and not just in his social policy. While Bork spent much of his post-confirmation failure claiming that he had been slandered and smeared by the American left, the fact that Bork saw such similarity between himself and an authoritarian, anti-woman, anti-gay, fiercely plutocratic organization speaks volumes as to the sincerity of those objections.

Bork’s views on homosexuality were mainstream for 20th jurisprudence, which is to say, rather unfriendly to the gay crowd. The parallel to Catholic theology is clear, but again, this criticism of Bork isn’t entirely fair because there were no significant pro-gay judges in the 20th century who had any meaningful impact on the law. More telling is his affinity for the jurisprudential framework called originalism.” Originalism is the view that the only appropriate reading of the Constitution is to pretend that the authors of the Constitution all thought the same thing about each of its provisions, then pretend that you know what they were thinking using your modern interpretive lens (Scalia, for example, has very strong ideas about what the Founding Fathers thought about weapons that hadn’t yet been invented in the 18th century), then decide the laws of a 21st-century nation according to the products of those various imaginings. Originalism is a deeply religious concept; the Catholic Church, too, prioritizes the antiquity of a document as a marker of its authority over its actual persuasiveness. Originalism holds up the actual text and structure of a founding document and confers authority upon it not in virtue of its actual merits as a framework for a well-ordered society, or for the outcomes that it yields in terms of equity or justice, but simply because of who wrote it and how old it is.

I describe originalism sarcastically because it makes very little sense to me. I think that it has problems of both its outcomes for constitutional interpretation and in its internal coherence. But Bork was one of its luminaries (strange that an ideology so geared towards the Constitution’s origins has only seen its greatest popularity centuries after those origins), and he religiously advocated that religion-like doctrine.

Originalism is a not unpopular legal doctrine and so it is no particular black mark on Bork’s record that he, along with Antonin Scalia, virtually founded the modern originalist movement. Less flattering to his legacy as a jurist, though perhaps more important to his legacy as a Catholic, is the book he wrote in the mid-90s while at the Enterprise Institute, Slouching Towards Gomorrah. I read the book in preparation for writing this post, and I must say, it is a real disaster as far as what one should expect from a decently able-minded jurist. Where Bork’s other written works, such as his treatise on antitrust law, are polished and more thoroughly-cited than a law review article, Slouching is more like what I would expect from a merely average Christian whiner targeting the late-70s, white, Christian, “get-off-my-lawn!” crowd. Without going into much detail beyond “moral terpitude,” Bork spends the book attacking everything even vaguely associated with political leftism from reproductive liberty to pornography to “bra-burning” (he is unperturbed by the fact that bra-burning was never actually a thing), and in the good Catholic tradition, he roundly blames virtually everything not advocated on the 1962 GOP party platform for the “decline” of America (his book was written during the historical peak of American prosperity; in fact, the “decline” that he describes as beginning in the 1960s was in fact interrupted by only a single lengthy economic downturn: the Reagan era).

Grouchy social conservatism and originalism are defining features of the Catholic Church, and they are the two things that Bork may be most remembered for. Which is too bad, because Bork was not by any stretch an unlettered fellow, and he would probably have been a significant presence on the Supreme Court. He hopefully would have learned a thing or two while there. But now he is lost to us, and unfortunately he is commended to history with a lengthy screed against the damn hippies and a rare but highly cinematic failure before the Supreme Court to his name. In remembering him, I encourage you to pursue his more important works, especially his inquiry into antitrust law, since though today he may be more widely-known merely as a political ninny, the first to be “Borked,” he was wiser than that as a scholar, and more sinister than that as a man.