A mere two days after I lavished praise on Alex Tabarrok’s new book, which (among many other things) makes an eloquent case for patent reform, the U.S. Patent Office has proved that nobody’s listening by issuing patent #8,082,523 to Apple, Incorporated for a “portable electronic device with graphical user interface supporting application switching”. The abstract, in its entirety, reads as follows:

A portable electronic device displays, on a touch screen display, a user interface for a phone application during a phone call. In response to detecting activation of a menu icon or menu button, the UI for the phone application is replaced with a menu of application icons, while maintaining the phone call. In response to detecting a finger gesture on a non-telephone service application icon, displaying a user interface for the non-telephone service application while continuing to maintain the phone call, the UI for the non-telephone service application including a switch application icon that is not displayed in the UI when there is no ongoing phone call. In response to detecting a finger gesture on the switch application icon, replacing display of the UI for the non-telephone service application with a respective UI for the phone application while continuing to maintain the phone call.

In other words, anything you’d recognize as a smartphone seems to be covered.

Would anyone care to applaud this broad assertion of intelletual property rights? Would anyone care to jump in on the other side? Have at it!

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This tends to confirm my suspicion that a legal “education” consists primarily of having your capacity for logic beaten entirely out of you. As Jonathan points out, all evidence is statistical in exactly the same sense that this evidence is. I put a bullet through your heart and you take five minutes to die. Did the bullet cause your death? Well, not certainly — there’s some small chance that you died of a heart attack that would have killed you anyway, thirty seconds before the bullet was able to finish its job. Is there a high probability I caused your death? Yes. Did I do so beyond a reasonable doubt? Yes. Is the remaining doubt of a statistical nature? Yes. So if there were any consistency in the law, of course I’d be acquitted. And of course I would not be. Which means, as has been noted in this space before, that the law is an ass. So, perhaps, are a substantial fraction of its practitioners.

It’s off the main topic, but let me take this opportunity to present a related conundrum: Two identical twins each kill a random stranger. The two murders take place simultaneously, in different locations, but each in full view of 50 witnesses. There is no further evidence regarding which twin was likely to be in which location. There is therefore no reasonable doubt that each twin committed a murder, but only a 50% chance that any given twin committed either particular murder. Question 1: Can we convict them of anything under current law? My guess is no. (I don’t blame the law for getting this one wrong; I’m sure it must be impossible to write a law that works well under any imaginable scenario.) Question 2: How could the law be rewritten so that we can convict them, but so that the rewrite does not undercut the usual reasonable doubt standard?

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Does Mr. Thompson deserve compensation? A jury thought so, to the tune of $14 million. But five Supreme Court justices disagree, so Thompson gets nothing.

That’s because, according to the majority, it was only a single rogue prosecutor who misbehaved, so it would be wrong to punish the whole district attorney’s office. The dissenting minority argued that in fact there was a pattern of lax training in that office, so the jury award should stand.

But if an innocent man spends 18 years in prison, why should his compensation depend on the nature of the misconduct that sent him there — or even on whether there was any misconduct in the first place?

Look. We’ve pretty much all agreed that we want to have a justice system. Since all justice systems make mistakes, that means we’ve pretty much all agreed that we’re prepared to tolerate a certain number of mistakes. The question, though, is: Who should bear the costs of those mistakes? Should the costs fall entirely on an unlucky few like John Thompson who just happen to have been in the wrong place at the wrong time, or should they be spread more evenly among the populace that is perfectly happy to share in the benefits of the justice system?

I’ve made this argument before about the minimum wage. Let’s put aside all the legitimate controversy about whether the minimum wage is good for low-wage workers and accept that point for the sake of argument. If you believe it’s incumbent on society to transfer resources to those workers, you can do it with a minimum wage, which puts most of the burden on the relatively small segment of society that either owns or patronizes businesses with a lot of minimum wage workers, or you can do it with, say an Earned Income Tax Credit that spreads the burden more equally. If we have a collective obligation to help these workers, doesn’t fairness dictate that we all take a share in meeting that obligation?

Likewise, if we’ve collectively decided (rightly or wrongly) that every shopping mall should have a wheelchair ramp, what moral sense does it make to put the financial burden of those ramps on the owners and patrons of shopping malls, as opposed to financing them out of general revenues?

This seems to me to be exactly the same issue. If we’ve collectively decided we want the benefits of a justice system, doesn’t fairness dictate that we all take a share in meeting its costs? Those costs unavoidably include a certain number of false convictions. We can share those costs by contributing (presumably through the tax system) to a compensation fund. Prosecutorial misconduct has nothing to do with it.

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In fact, unlike, say, agricultural subsidies, the mandate for individuals to buy health insurance is at least a defensible response to a genuine problem — in fact, it’s a defensible response to two genuine problems.

First, as long as people are uninsured, they are going to show up at emergency rooms demanding care, and they are going to get it. Arguably, the best policy is to turn those people away unless they’re able and willing to cover the costs of their own care, but we all know that’s never going to happen. Given that we’re going to make medical care available to everyone, there’s at least an argument for making everyone pay for it.

Second, there really are good arguments for insuring people regardless of (at least some) pre-existing conditions; most of us would have insured against those conditions before we were born if we’d had the opportunity, and the inability of pre-born souls to sign insurance contracts can be seen as a form of market failure that bears correcting. But if you don’t allow discrimination on the basis of pre-existing conditions, then you’ve pretty much got to have an individual mandate; otherwise everyone waits till they get sick to buy insurance and the whole system breaks down.

Now the Obamacare system is very far from my preferred approach to these problems, but at least it’s a plausible response to a real set of problems, and hence arguably amounts to a system of taxes designed to provide for the general welfare of the United States, as allowed under Article I, Section 8 of the Constitution. That’s a lot more than you can say about, say, mandatory wheelchair ramps, the cost of which often far exceeds what you’d have to pay the wheelchair-bound to compensate for their absence. It’s a lot more than you can say about the Post Office, or the Commerce Department, or the Occupational Safety and Health Administration.

In Mike Rizzo’s words:

the insurance mandate is not nearly as horrific as opponents like to suggest (even as it cuts against the very core foundational principles I hold). It is applied equally to all. It does not seem arbitrary. People seem to be able to plan with some certainty regarding it. Yes, the insurers get a good deal here, but it is a rule that is pretty consistent with the Rule of Law … On the scale of repulsive things he government does, it is nowhere near the top.

Had the health care plan been packaged with a public insurance option, I’d be the first to call for judicial intervention to strike it down. The government has no more business running an insurance company than it would, say, an auto manufacturer — speaking of which, where were the courts when we really needed them? And there are a lot of other areas where I’d like to see the courts take a more expansionary view of individual rights. But I’m not prepared to call for unelected judges to overturn every piece of legislation that I happen to consider misguided. There is such a thing as judicial overreach, and I think we’re seeing it.

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Apparently some idiot lawyers have gotten it into their heads that the Social Security mandate is okay because it’s called a “tax”, whereas the Obamacare mandate is not okay because it’s enforced by what’s called a system of “fines”. From which I infer that if the government taxes you $1000 and uses it to buy you some health insurance, that’s constitutional. Or, if the government gives you a tax credit for buying insurance (after raising taxes to cover the cost of everyone’s credits, of course), then that’s constitutional — just as tax credits for home insulation are constitutional. Whereas if they just require you to buy $1000 worth of health insurance directly, that’s not constitutional even though it has exactly the same consequences as other policies that are constitutional. From which I infer that the law is an ass.

This false distinction is all the more outrageous because unlike the perfectly constitutional Social Security mandate, the constitutionally suspect Obamacare mandate actually serves a legitimate economic purpose. There’s a case to be made that there are a lot of conditions we ought to be able to insure against but can’t, because those conditions manifest themselves before we’re old enough to buy insurance — sometimes even before we’re born. That in turn creates a case for requiring insurers to cover pre-existing conditions, which in turn necessitates a mandate; otherwise everyone would wait until they’d gotten sick to buy insurance. You might or might not buy that rationale, but at least it’s a rationale. When it comes to Social Security, I can’t see any comparable argument. Unlike, say, cystic fibrosis, old age strikes pretty much everyone.

The U.S. government mandates your retirement strategy. It mandates your hiring practices. If you erect a public building, it mandates the number of wheelchair ramps. It mandates the size of your showerhead, for Christ’s sake. There are at least two significant precedents saying, in effect, that under the Commerce Clause, the U.S. government can mandate any damn thing it wants to. The only exception is health care — the one case where a mandate makes some potential sense.

Don’t get me wrong. I oppose every one of those mandates. But not as vehemently as I oppose a legal system that pretends to have some basis in logic when it is in fact nothing but a bunch of laughably arbitrary decisions based on random and meaningless distinctions that lawyers keep creating so that lawyers can “earn” a living maintaining and interpreting them. The law is an ass, and it deserves a good kicking.

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The issues are pretty much identical. Here is the District Court’s reasoning in the California case (this is the Court’s summary of the plaintiffs’ position, which the Court endorses):

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.”…
The freedom to marry the person of one’s choice is a fundamental right protected by the Due Process Clause and…Proposition 8
violates this fundamental right because: 1. It prevents each plaintiff from marrying the person of his or her choice; 2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice…

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1…Proposition 8 violates the Equal Protection Clause because it: 1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and 2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.

For the record, Prop. 8 does not prevent gay men and lesbians from marrying. All it does is restrict them to marrying people they’d prefer not to marry. With that in mind, it should now be very easy to write the forthcoming Title VII decision. All that’s necessary is to alter a phrase here and there:

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.”…
The freedom to hire the person of one’s choice is a fundamental right protected by the Due Process Clause and … Title VII
violates this fundamental right because: 1. It prevents each plaintiff from hiring the person of his or her choice; 2. The choice of an employee is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice…

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1. According to plaintiffs, Title VII violates the Equal Protection Clause because it: 1. Discriminates against bigots by denying them a right to hire the person of their choice whereas non-bigots may do so freely; and 2. Disadvantages a suspect class in preventing only bigots, not non-bigots, from hiring.

(In fact Title VII does not prevent bigots from hiring any more than Prop 8 prevents homosexuals from marrying, but I’m trying to maintain a strictly parallel structure here.)

Of course Title VII interferes with the hiring decisions of many people who are not bigots, but on the Prop 8 precedent, the effect on bigots should be sufficient to invalidate the law.

Also of course, bigots are held in considerably greater disregard than homosexuals, at least in the circles that I prefer to travel in. But equally of course, the Fourteenth Amendment is designed specifically to protect the rights of people who are held in great disregard.

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In the videotaped sentencing hearing, which you can see in its entirety below, the judge seems bemused by the prosecutors’ choices but unmoved by the defense attorney’s attempt to raise a constitutional objection. The defense attorney, not entirely unreasonably, pretty much loses it.

Michelle Lyn Taylor is now serving a life sentence and will have her first shot at parole ten years from now. Does this strike any of you as reasonable?

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The number of “unauthorized aliens” in Arizona at any given moment is estimated as just under a half million—about the same as the number of Jews in New Jersey. Over half the text of the Arizona law is devoted to penalizing employers who hire these people. Now suppose for a moment that the New Jersey legislature were to pass a bill penalizing anyone who hires a Jew. Would Professor Kobach defend this law, as he does Arizona’s, by pointing out that it doesn’t require anyone to carry a driver’s license?

The anti-immigration hysterics keep warning us that foreigners want to come over here and exploit our welfare system. The insincerity of that stance is exposed whenever, as in Arizona, its proponents set out to prevent those very same foreigners from coming here and working.

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The book in question is The Trial Proceedings of the International Criminal Court by the Israeli law professor Dr. Karin N. Calvo-Goller. According to the reviewer the main part of the book “simply restates the…relevant parts of the ICC Statute.” This rehashing, he adds, is particularly unproductive since a large part of the volume consists of a reprint of the Statute itself.

The author, Dr. Calvo-Goller, disagrees, and has instigated a case of criminal libel against the editor, Professor Weiler. According to Dr. Calvo-Goller:

[The] review…contains false factual statements which the author of the review, a professor of criminal law, could not reasonably believe to be true. Professor Weigend’s review is libellous. It may cause harm to my professional reputation and academic promotion.

Dr. Calvo-Goller also contends that the review is an insult to those who took the time to read and comment on earlier drafts of her book. And she notes that the very same book received a positive review from Judge Kai Ambos, who, she pointedly observes, she has never met.

Dr. Calvo-Goller (who is, after all a law professor) concedes in a letter to Professor Weiler that she is aware of the extent of freedom of expression under the First Amendment to the Constitution of the United States. (Professor Weiler teaches at NYU, well within the boundaries of that country.) However, she notes, “the extent of that freedom ends where its exercise damages the reputation of an individual.”

Professor Weiler responded at great length to Dr. Calvo-Goller’s letter, and to a follow-up letter, defending the good faith and integrity of the reviewer, rejecting the notion that a critical book review constitutes an insult to advance readers, observing that it is not uncommon for a single book to receive both negative and positive reviews, and suggesting that the question of what constitutes a “rehash” might be a matter at least partly of opinion and not of clearcut fact. He invited Dr. Calvo-Goller to respond on the website and passed on her objections to the original reviewer with an invitation to read them and modify his review, an invitation which was not accepted. A year later, Professor Weiler was summoned to appear before a French Examining Judge, and his criminal trial was set for June 25.

Professor Weiler has invited letters of indignation and support to be sent to EJIL.academicfreedom@gmail.com, preferably via attachments on letterhead indicating your affiliation. He has also requested scanned or digital copies of book reviews which are at least as critical as the one in question so as to illustrate that this kind of thing happens all the time.

Tomorrow, I’ll tell you about the book review I’m about to scan.

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Eight out of nine justices (plus retired Justice Sandra Day O’Connor) ignored Turkewitz’s inquiry about what would happen if a secession case were to reach the Supreme Court. Rather astonishingly, however, Justice Scalia responded with the following letter, which Turkewitz’s brother Eric posted on his blog this week:

Now, as Eric Turkewitz observes, Scalia (not for the first time) might be expressing a minority opinion here. By coincidence, exactly the same question was discussed just a week ago over at the Volokh Conspiracy, where Eugene Volokh suggests that a 144 year old military victory could well be considered something short of a definitive resolution of a constitutional issue.

A grateful hat tip to Jon Shea, who called my attention to this remarkable story in a comment to an earlier post.

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