purple motes

A law professor figured out that persons cannot be legally prosecuted for crimes that take place in Yellowstone National Park's fifty-square-mile area in Idaho.  He wrote an article about the law's Yellowstone-Idaho crime problem. The Georgetown Law Journal accepted and published his article.  No one has convincingly refuted his legal analysis.

In conjunction with his publication, the law professor valiantly but unsuccessfully attempted to get legal authorities to resolve the Yellowstone-Idaho crime problem.  He explained:

I quietly sent drafts [of his law journal article] to the Department of Justice’s Office of Legislative Affairs, the U.S. Attorney in Wyoming, and the majority and minority counsels for the House and Senate Judiciary Committees.  ...  The U.S. Attorney responded that he had no power to amend the law.  The Department of Justice did not respond at all. Neither did the Senate Judiciary Committee.[1]

The law professor tried again, with a more extensive set of authorities:

I wrote to the majority and minority counsel and all of the members of the two relevant Judiciary subcommittees: Courts, the Internet, and Intellectual Property on the House side, and Administrative Oversight and the Courts on the Senate side. That was twenty-two representatives, seven senators, and four staff lawyers.[2]

He received no responses to any of these letters.  He concluded:

I had learned my lesson. A person with just an idea—a person who is not a lobbyist, who makes no campaign contributions, and who relies simply on the force of his arguments—should not count on members of Congress acknowledging his letters or phone calls. If someone in Congress does notice his idea, he should not count on being in the loop, let alone being consulted. He should not expect to get a serious legal reply to his legal arguments.[3]

Most persons are not interested in ideas apart from organizations, status networks, and material interests.  That's as true for law professors as it is for members of Congress.

Economics applies to ideas and affects reasoning.  The Yellowstone-Idaho crime problem that the law professor identified in 2004 has existed since 1894.  Across those 110 years, the problem has apparently produced no effects.[4]  Significant interests are attached to court jurisdictions, especially with regard to federal lands.  Moreover, political negotiations about political boundaries are difficult.  Because the Yellowstone-Idaho crime problem fails a cost-benefit test for real-world action, Congress reasonably ignores it.

The real-world operation of the criminal justice system could easily compensate for the problem that the law professor discovered.  The federal criminal code has expanded relatively rapidly.  It contains vague, general descriptions of crimes that most people do not clearly understand.  As a result, U.S. prosecutors have enormous discretion in choosing who to prosecute, what crimes to prosecute, and what sort of plea bargains to accept.  If someone did commit murder in what the professor calls the "zone of death," the criminal justice system could easily ensure that that persons was punished for years for some crime.[5] Such action highlights some truly significant legal problems.  The legal problem that the professor identified isn't such a problem.

The law professor has emphasized that his article creates an incentive for crime, the "perfect crime," murder.   But nobody lives in that area of Yellowstone National Park. The idea of planning a perfect crime is mainly a figure of crime novels.  Most crime takes place without much sophisticated prior legal analysis of legal effects.[6] That the law professor's article would spur murder is wholly implausible.  Making such a sensational claim is best understood as a tactic in competition for attention.  That sensational claim also indicates that the Yellowstone-Idaho crime problem isn't serious enough to attract attention without such tactics.

The law professor's article about the Yellowstone-Idaho crime problem, entitled "The Perfect Crime," has attracted considerable attention.  The law professor observed:

I posted the article on the Social Science Research Network (SSRN) one day in March 2005. The next day, Orin Kerr made some favorable comments about it on The Volokh Conspiracy blog. That touched off a cascade of downloads, further media and blogger attention, and more downloads. For a while, The Perfect Crime was the most downloaded constitutional law paper in SSRN history.
My theory was written up in the Washington Post. I was interviewed on NPR’s All Things Considered and a similar Canadian program, As It Happens. The BBC website ran a story, as did a Japanese newspaper. Local media in Idaho and Wyoming followed suit. John Hodgman (soon to be of the Daily Show) invited me to give a public lecture on my article in Brooklyn. The crowning moment, though, was the article in the National Enquirer.[7]

The Yellowstone-Idaho crime problem also attracted notice in the Wall Street Journal and was used as a plot device in a novel that rose to 29'th place in a national best-seller list.[8] But surely for a law professor, the crowning moment must have been having a second article concerning the Yellowstone-Idaho crime problem accepted for publication in the Georgetown Law Journal. The first line of the title for this article, "Tabloid Constitutionalism," describes well both the article's subject matter and its rhetorical orientation.

The marketplace of ideas can perform quite badly.  The few officials who have addressed the Yellowstone-Idaho crime problem have displayed remarkably poor reasoning.[9] These officials probably aren't stupid and probably don't have contempt for constitutional law. But real demand for a good response to the Yellowstone-Idaho crime problem hardly exists. Legal scholarly competition, in contrast, generates intense demand for writing and publishing articles. The law journal articles on the Yellowstone-Idaho crime problem are better written, contain more original legal analysis, and more clearly display the joy and thrill of studying law than most law review articles. These articles suggest that the legal academy is failing to allocate intellectual talent to important problems and to create useful intellectual work.

Notes:

[1] Kalt (2008) p. 5.
[2] Id. p. 6.
[3] Id. p. 7.
[4] Federal law first established the United States District Court for the District of Wyoming, which includes Yellowstone National Park's fifty-square-mile area in Idaho, in 1894. See Kalt (2005) p. 5 ft. 17. The boundaries of this district, along with state lines and the U.S. constitution, create the Yellowstone-Idaho crime problem. No crimes can plausibly be attributed to the Yellowstone-Idaho crime problem, and no person has escaped criminal punishment because of this problem. See Kalt (2008) pp. 10-13.
[5] Perhaps the crime would be using mail to plan to commit a felony.  Presumable a person who planned to go to the "zone of death" to commit a crime would use the mail system or the financial system in some way prior to the trip.  That would probably be enough to generate a winning claim of criminal activity outside the "zone of death." That could easily provide a pretense for punishment for criminal activity within the "zone of death." Kalt (2005) pp. 13-4 addresses this issue by describing his concern in a way that gives it even less practical significance. With respect to real-world legal action, Kalt (2008) p. 12 describes how prosecutors arranged a plea bargain to avoid legal analysis of the Yellowstone-Idaho crime problem.
[6] Common sense indicates that punishment deters crime. But this effect is hotly debated in academic literature. The effect of functioning institutions of punishment on crime is likely to be much greater than the effect of a law professor's legal analysis on crime.
[7] Kalt (2008) p. 3.
[8] Id. p. 4.
[9] Id. pp. 6-8, 11-12.

References:

Kalt, Brian C., The Perfect Crime. MSU Legal Studies Research Paper No. 02-14. Available at SSRN: http://ssrn.com/abstract=691642 ; also The Perfect Crime, 93 GEO. L.J. 675 (2005).

Kalt, Brian C.,Tabloid Constitutionalism: How a Bill Doesn't Become a Law. Georgetown Law Journal, Vol. 96, No. 6, 2008; Available at SSRN: http://ssrn.com/abstract=1136301

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The government of Washington, DC, provides real-time data feeds on crime, building permits, housing code enforcement, public space permits, and property registrations. The data includes geo-codes so that it can be easily mapped.

The terms of use for these important data resources state:

Neither the District of Columbia Government nor the Office of the Chief Technology Officer (OCTO) makes any claims as to the completeness, accuracy or content of any data contained in this application; makes any representation of any kind, including, but not limited to, warranty of the accuracy or fitness for a particular use; nor are any such warranties to be implied or inferred with respect to the information or data furnished herein.

So you can look at the data it provides, but the DC government makes no claims as to the "content of any data." In presenting these data, the DC government does not make "any representation of any kind." If that were literally true, then there is no data. If there's no data, then there's no liability. That's a clever way to share data to foster a more informed public.

In the terms of use for this blog, I had set out a less artful disclaimer. I've now appended to it essentially the above text. Read it and weep for our legal culture.

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"Is a company allowed to do this under the regulations?" "What does that regulation mean?" These may seem like simple questions, but in reality they may have only expensive, uncertain answers.

Regulation is not necessarily like code that anyone with the appropriate capabilities can copy, interpret, and execute. In an case concerning the U.S. Environmental Protection Agency (EPA), a court noted:

The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities.[1]

One might calls this the modern administrative state, or the ancient patron-client system. This system does not produce a closed set of texts (black letter law) that clearly defines what a subject may do.

This system is most likely to develop under particular circumstances. Where political interests and moral sentiments have force at a relatively abstract level, showing concern by generating details is likely to be more important than the specific details and their actual effects. If only a few companies are of primary concern, and the activities of these companies are well-established, than regulation can feasibly be made highly complex while still supporting claims of relevance. If narrowly specialized lawyers, economists, consultants, regulatory-affairs departments, and regulatory agencies largely shape an area of regulation, they are likely to shape it so as to enhance their claims to expertise. That means fostering regulatory circumstances that require long study and considerable previous experience to understand.

The modern administrative client-patron ancient system is not a historical inevitability. Just as in considering the importance of federalism and subsidiarity, vague invocations of the "scale of modern societies" does not explain the necessity of the "modern administrative state."[2] The scope of interests relevant to a field of regulation can broaden over time and innovation increase. As a large number of persons gain the capability to engage in an activity, they may form new, specific moral sentiments about what they should be able to do in that field of regulation. Broader, more dynamic moral, political, and business interests can be powerful forces for making regulation simpler, clearer, and less expensive to interpret.

Recent developments in copyright regulation indicate regulatory effects of broader, more dynamic moral, political, and business interests. Prior to the rise of the Internet, narrow interests elaborated a rather obscure and unintelligible copyright regime. The Internet has greatly broadened interests in that regime. In practice, many persons copy materials on the Internet in ways that violate copyright or that aren't meaningfully analyzed in terms of copyright. How copyright regulation will evolve is quite uncertain. But certainly it will not evolve primarily through the narrow administrative process of the past.

Note:

[1] Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C Cir. 2000).

[2] See, e.g. Colburn, Jamison E., "The Jurisprudence of Notice and Comment" (November 1, 2007). WNEC School of Law Legal Studies Research Paper No. 07-01 Available at SSRN: http://ssrn.com/abstract=1027001, pp 1 (fn. 2), 3, 45.

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In a path-breaking decision, the U.S. Supreme Court posted on its website a video along with text of its opinion in Scott v. Harris. Common sense is essentially multimodal. By including video along with its opinion, the Court provided a decision record that communicates its judgment more effectively than would just text.

The Court's recording of its decisions has had significant effects. In the Court's first copyright decision in 1834, the Court declared itself "unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right." (Wheaton v. Peters, 33 U.S. 59, 668). The Court's decisions thus became a legally secure component of the public domain. In Burrow-Giles Lithographic Co. v. Sarony (1884), the Court found, "this photograph [“Oscar Wilde, No. 18”] to be an original work of art, the product of plaintiff’s intellectual invention of which plaintiff is the author, and of a class of inventions for which the constitution intended that congress should secure to him the exclusive right to use, publish, and sell." The Court did not however, include a reproduction of this photograph in its decision. It thus did not place in the public domain a work derived from a photograph of significant public importance. Not doing so, among other effects, lessened public understanding of its authoritative judgment

Verbal statements, whether in judicial opinions or elsewhere, are in some circumstances a poor substitute for video. Courts have long recognized the distinctive value of non-verbal evidence through their practice of admitting into evidence objects in addition to personal testimony and documents. A major issue in Scott v. Harris was the danger to the public from a driver fleeing from police cars signaling to the driver to pull over. Video from the police officers' cars communicates extent and nature of the danger in a way that cannot be reduced to a collection of propositional statements of fact. The video also specifies an authoritative judgment with respect to the extent of danger much more clearly, especially to the general public, than does just a text.

The justices apparently did not consciously edit video in the Scott v. Harris case record in making their opinions. The case record included four color videos automatically recorded from police cars when they activated their sirens. The justices' opinions included two very different descriptions of these videos. The decision record for the Court in this case includes, however, just one black-and-white video. That video (the "opinion video") appears to be the video from one police car appended to the video from another.

Selecting relevant video is an important aspect of reasoned argument in Scott v. Harris. In the opinion video, a total of 3.9 minutes of video (24% of the total run time of the opinion video) showed the crash of Harris' vehicle and the subsequent effects and actions (image of the overturned vehicle, the clouds of smoke rising from it, the police officers rushing toward the vehicle and desperately trying to open the car door to get Harris out of danger, etc.; for better understanding, watch the relevant segments of the video). Harris, who was only 19 years old, suffered permanent paralysis of his arms and legs from the crash. Irrespective of the legal issues associated with the crash, compassion is a natural and appropriate human reaction to Harris' suffering. Nonetheless, this specific crash and its terrible human effect is not relevant to judging the reasonableness of the prior police decision to terminate the chase in a way that created a risk of serious injury or death for the fleeing driver. Including the video segment of the crash and its aftermath fosters well-recognized biases, e.g. hindsight bias, outcome bias, affective bias. Video for judging the reasonableness of the police action should excise the video segment showing the crash and its aftermath.

Camera viewpoint is an important, case-relevant aspect of video in Scott. The camera viewpoint of the video approximates that of the eyes of a police officer in a chasing police car. This video, as a resource for immersive, imaginative experience, is thus oriented toward persons imaginatively assuming the position of a police officer. Presenting the video in a way that helps persons imaginatively assume the position of a police officer is the best use of the video. Ensuring that viewers are conscious of that particular video viewpoint helps viewers to judge critically the effects of their viewing experience.

Diegetic time is another important, case-relevant aspect of the video. The video includes the period from when the police officers began to seek to stop the driver to when a police officer terminated the resulting chase. The dangerousness of the chase depends on specific circumstances occurring over time. These circumstances include the fleeing driver's and the police officers' physiological states. Since the human hormonal system has slower-acting but more general and longer-enduring effects than the human nervous system, events that trigger hormonal reactions associated with a situation of danger can shape subsequent actions and perceptions of time and danger. Hence judgments of public danger involve complicated temporal issues.

Watching and editing video can promote and communicate reasoned judgment of public danger. An important issue is the time span in which a judgment of dangerousness is reasonably made and revised. Whether unusual events are discounted in such a judgment, or weighted extra heavily, also is an important issue. Watching and editing video as if it were a transparently objective record of events ("naive realism") obscures how video really works and impedes reasoned understanding of video's truth value.[1]

Included below are two videos created from video in the Scott case record. The first video includes segments of video from the beginning of the chase, and a segment of video up to the end of the chase. The second video highlights relatively dangerous events that occurred during the chase. Both videos are designed for the viewer to assume imaginatively the position of a police officer. Both videos use selective cuts of the action and connect the video segments with half-second cross dissolves to preserves sense of immersion. Both videos preserve real-world temporal sequence, except for in one switch in viewpoint that is obvious. The second video stops action at two points to suggest a circumstance that would have been particularly salient in a model of accumulating indications of danger. These videos are not designed to be deceptive or to be propaganda. They are meant to foster rational argument about the danger to the public of allowing the chase to continue.

(more...)

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Ohio is establishing a registry of sex offenders who weren't criminally convicted of sex offenses. The Blade of Toledo, Ohio, reported:

A recently enacted law allows county prosecutors, the state attorney general, or, as a last resort, alleged victims to ask judges to civilly declare someone to be a sex offender even when there has been no criminal verdict or successful lawsuit.

The rules spell out how the untried process would work. It would largely treat a person placed on the civil registry the same way a convicted sex offender is treated under Ohio's so-called Megan's Law.

The person's name, address, and photograph would be placed on a new Internet database and the person would be subjected to the same registration and community notification requirements and restrictions on where [the person] could live.

Especially with the Internet, the government declaring a person to be a sex offender is a potent communicative punishment. Most persons consider sex offenders to have committed some of the most vile crimes imaginable. Ohio's electronic sex offender registration and notification system communicates detailed, immediate information about sex offenders' movements to interested parties. "Visitors to the [Ohio sex offender Internet site] can register to have an e-mail message sent directly to them any time a registered sex offender moves within a mile of any specified address."

The political incentives to impose such communicative punishments are relatively strong. The first sex offender registry was established in New Jersey in 1994 (Megan's Law). Within a decade, sex offender registries were established across the U.S.. Such a registery is now under consideration in the U.K. (Sarah's Law). The story of a young girl viciously raped and killed easily attracts public attention. Protecting children is a propitious basis for legislation. Even better, legislation that imposes communicative punishments don't cost much public expenditure. Communicative punishment is much cheaper than imprisonment.

Given these circumstances, communicative punishments merit strict scrutiny for due process. What about "the right to a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel in his defense"? Forget about those rights. A declaratory judgment, based on the preponderance of the evidence, is all that is necessary for the government to communicate powerfully that a person has joined the heinous category of sex offenders [see Sec. 2721.21 of the Act].

Ohio's civil communicative punishment of sex offenders seems to have been the product of a sordid deliberative failure. The Blade reported:

The concept was offered by Roman Catholic bishops as an alternative to opening a one-time window for the filing of civil lawsuits alleging child sexual abuse that occurred as long as 35 years ago.

The Ohio Supreme Court a few months earlier issued a ruling affirming a time limit for filing abuse cases. This matter is more awful than the Awful Disclosures of Maria Monk. It's more awful because priest have in fact awfully abused children. I would guess that was also true in the early nineteenth century. From 1950 to 2002, however, about $650 million has changed hands in judgments against Catholic churches and religious communities concerning sex abuse. This new legal development provides new motivation to address the serious problem of sex abuse. The solution that the Roman Catholic bishops proposed in Ohio shows that the problem concerns everyone.

Protection of civil liberties are central to the rule of law. But perhaps the only deliberative fate worse than being an accused sex offender is being accused of defending accused sex offenders. The Blade reported:

No one in attendance voiced opposition to rules [concerning civil denunciations of a person as a sex offender] submitted by Attorney General Jim Petro's office to the Joint Committee on Agency Rule Review, consisting of members of the Ohio House and Senate.

In fact, you can find right in the New Jersey State Constitution this text:

Notwithstanding any other provision of this Constitution and irrespective of any right or interest in maintaining confidentiality, it shall be lawful for the Legislature to authorize by law the disclosure to the general public of information pertaining to the identity, specific and general whereabouts, physical characteristics and criminal history of persons found to have committed a sex offense. [NJ Constitution, Art. IV, Sec. VII, para. 12, added Dec., 7, 2000]

This text essentially states that the rest of the Constitution does not apply to persons "found to have committed a sex offense." And what does it take to make such a finding? In Ohio, it's a civil declaratory judgment based on preponderance of the evidence. Liberty under law, including liberty from personally damaging government communication, should be more secure than this.

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