Archive for 2015

IGNORANCE OF THE LAW IS NO DEFENSE, BUT PUBLISHING THE LAW IS ILLEGAL: State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State’s Own Laws. Personally, I don’t think that laws should be copyrightable.

UPDATE: Eugene Volokh emails: “It turns out the Georgia copyright lawsuit is about the copyright in annotations, not in the laws themselves; see https://ia801504.us.archive.org/1/items/gov.uscourts.gand.218354/gov.uscourts.gand.218354.1.0.pdf and http://www.abajournal.com/news/article/State_of_Georgia_sues_Carl_Malamud_says_he_published_its_annotated_code_of. If the annotations were owned by LexisNexis, which creates them, it seems to me pretty clear that they could sue for infringement. But for some reason that I haven’t yet been able to figure out, Georgia has LexisNexis create the annotations and takes the copyright itself, though it then lets LexisNexis sell the annotated code and make money from it. My tentative sense is that this fact should not preclude the lawsuit, again because the material – annotations, rather than the underlying law – is copyrightable regardless of whether it’s owned by the state or a private party.” That would make sense.

“LAWLESS” PRETTY MUCH SUMS IT UP: David Rivkin and Lee Casey in the Wall Street Journal, “The Lawless Underpinnings of the Iran Nuclear Deal.”

The Iranian nuclear agreement announced on July 14 is unconstitutional, violates international law and features commitments that President Obama could not lawfully make. However, because of the way the deal was pushed through, the states may be able to derail it by enacting their own Iran sanctions legislation. . . .

The Constitution’s division of the treaty-making power between the president and Senate ensured that all major U.S. international undertakings enjoyed broad domestic support. It also enabled the states to make their voices heard through senators when considering treaties—which are constitutionally the “supreme law of the land” and pre-empt state laws.

The Obama administration had help in its end-run around the Constitution. Instead of insisting on compliance with the Senate’s treaty-making prerogatives, Congress enacted the Iran Nuclear Agreement Act of 2015. Known as Corker-Cardin, it surrenders on the constitutional requirement that the president obtain a Senate supermajority to go forward with a major international agreement. Instead, the act effectively requires a veto-proof majority in both houses of Congress to block elements of the Iran deal related to U.S. sanctions relief. The act doesn’t require congressional approval for the agreement as a whole.

Last week the U.N. Security Council endorsed the Iran deal. The resolution, adopted under Chapter VII of the U.N. Charter, legally binds all member states, including the U.S. Given the possibility that Congress could summon a veto-proof majority to block the president’s ability to effect sanctions relief, the administration might be unable to comply with the very international obligations it has created. This is beyond reckless. . . .

The administration faces another serious problem because the deal requires the removal of state and local Iran-related sanctions. That would have been all right if Mr. Obama had pursued a treaty with Iran, which would have bound the states, but his executive-agreement approach cannot pre-empt the authority of the states.

That leaves the states free to impose their own Iran-related sanctions, as they have done in the past against South Africa and Burma. The Constitution’s Commerce Clause prevents states from imposing sanctions as broadly as Congress can. Yet states can establish sanctions regimes—like banning state-controlled pension funds from investing in companies doing business with Iran—powerful enough to set off a legal clash over American domestic law and the country’s international obligations. The fallout could prompt the deal to unravel.

Rivkin and Casey are right about the Constitution’s treaty power being circumvented, with the unfortunate blessing of a cowardly Congress. They’re also right that the Administration’s decision to obtain a speedy U.N. Security Council resolution prior to the Corker-Cardin congressional vote is a blatant and reckless end-run around U.S. sovereignty, bypassing our national legislature in favor of a multi-lateral, extra-sovereign body. Any future President wishing to unravel the Iranian nuclear deal–which Secretary of State has assured us repeatedly is “not legally binding“– will now be branded by the U.N. as an international “law breaker,” a point I made back in April.

I hope States do, indeed, continue to refuse to do business with companies doing business with Iran. The financial impact probably won’t be enough to trigger an Iranian accusation that the Obama Administration isn’t enforcing the deal, however, and consequently the Administration is unlikely to march into court claiming that the Supremacy Clause trumps States’ actions.  So I doubt States’ doing this will “prompt the [nuclear] deal to unravel.”  Nonetheless, this is one interesting and creative way that States can constitutionally push back.

WELL, YES: No rest for the candidates in this summer of discontent.

Dissatisfaction and protest are roiling the politics of summer 2015. They are evident in the response to the angry rhetoric from Donald Trump, in the crowds that come to hear Bernie Sanders bash Wall Street and in the rallies demanding racial justice. For presidential candidates, there is no safe harbor. Ignore the mood at your peril; engage it at your peril.

The discontent is real, whether economic, racial or cultural. It knows no particular ideological boundaries. It currently disrupts both the Republican and Democratic parties. It reflects grievances that long have been bubbling. It reflects, too, the impatience with many political leaders — what they say and how they say it.

The economic collapse of 2008 continues to ripple through the lives of many families, despite the drop in unemployment. Steady but slow growth has not been balm enough to give these families, many of whom see a system rife with inequity, much optimism about the future. Instead, they see the American Dream as part of the nation’s past.

Welcome to the era of Hope & Change.

FOX BUTTERFIELD, IS THAT YOU? “Scholar-activists must be ready to fend off the perception that their activism taints their scholarship, or that they’re going to indoctrinate students.”

Err, because they are? And note this:

Juggling the two identities isn’t new, but the task seems tougher today. The crowd was perhaps thicker during and just after the civil-rights and political movements of the 1960s and ’70s, which drew in so many young people, future professors among them. Now activists are more visible, their protests or remarks potentially bringing unwanted attention on social media or cable news — and prompting complaints to universities.

Yes, we wouldn’t want uncomprehending lay people to discover what’s going on inside the cloister; best keep the liturgies in Ecclesiastical Latin for that reason.

BUILDING A BRIDGE TO THE FIRST WORLD WAR: “Bernie Sanders’ campaign speech in this suburb of New Orleans felt more like a union organizing rally from 1915 than a modern American presidential campaign pitch in 2015:”

“At the top of my list is the issue of income and wealth inequality … it’s the great moral issue of our time, it’s the great economic issue of our time, and it is the great political issue of our time,” he said at the top of his speech, before spending most of his hour-plus time on stage repeatedly hammering away at progressive economic issues.

There were nods to social issues, though Sanders rarely spoke about them separate from economic concerns, instead repeatedly linking social concerns to fundamental economic issues.

“For kids who graduated high school, who are between the ages of 17 and 20 if those kids are white their real unemployment is 36 percent. If they are Hispanic, 37 percent. If they are African American … the real unemployment rate is 51 percent,” Sanders said to boos.

Similarly, on women’s issues, Sanders said, “Speaking to my brothers here today, you’ve got to stand with us on this issue … when women earn nothing more than the same level as men, we’re going to take a huge chunk out of poverty.”

Bernie makes the country sound like it’s still at perigee of FDR’s Great Depression. Will the media ever explore the cognitive dissonance separating their own feel-good economic reporting post-November of 2008 and Hillary’s running as Obama’s successor, versus Sander’s nostalgic sepia-toned fire-and-brimstone doomsday rhetoric?

DRIP, DRIP: Watchdogs: Clinton emails ‘never’ should’ve been sent on private system.

Two government watchdogs at the center of an investigation over Hillary Clinton’s personal email server say she shouldn’t have sent classified information over her private system while serving as secretary of State.

“This classified information should never have been transmitted via an unclassified personal system,” the inspectors general for the State Department and intelligence community said in a joint statement on Friday.

True. Related: Hillary’s Email Troubles Deepen.

VDH ON DONALD TRUMP AND THE FED-UP CROWD:

To explain the inexplicable rise of Donald Trump is to calibrate the anger of fed-up crowd that is enjoying the come-uppance of an elite that never pays for the ramifications of its own ideology. The elite media, whose trademark is fad and cant, writes off the fed-up crowd as naïve and susceptible to demagoguery as the contradictory and hypocritical Trump manipulates their anger. In fact, they probably got it backwards. Trump is a transitory vehicle of the fed-up crowd, a current expression of their distaste for both Democratic and Republican politics, but not an end in and of himself. The fed-up crowd is tired of being demagogued to death by progressives, who brag of “working across the aisle” and “bipartisanship” as they ram through agendas with executive orders, court decisions, and public ridicule. So the fed-ups want other conservative candidates to emulate Trump’s verve, energy, eagerness to speak the unspeakable, and no-holds barred Lee Atwater style — without otherwise being Trump.

Read the whole thing.

HIGHER EDUCATION BUBBLE UPDATE: WSJ: Advice For Parents With Children Living At Home After College. “Now that they’re out of college, you realize what wasn’t included in that $240,000 education: classes in life skills and decision-making.”

I have to say, this isn’t my experience at all. But then, we raised the Insta-Daughter with an eye toward independence.