Topic: Law and Civil Liberties

The Man Who Would Not Be King

Today is the 275th anniversary of George Washington’s birth, although the federal government has instructed us to observe Washington’s Birthday (not Presidents’ Day) on a convenient Monday sometime before the actual date. There’s a reason that we should celebrate George Washington rather than a panoply of presidents. As I wrote last year:

George Washington was the man who established the American republic. He led the revolutionary army against the British Empire, he served as the first president, and most importantly he stepped down from power….

[Washington] held “republican” values – that is, he believed in a republic of free citizens, with a government based on consent and established to protect the rights of life, liberty, and property.

From his republican values Washington derived his abhorrence of kingship, even for himself. The writer Garry Wills called him “a virtuoso of resignations.” He gave up power not once but twice – at the end of the revolutionary war, when he resigned his military commission and returned to Mount Vernon, and again at the end of his second term as president, when he refused entreaties to seek a third term. In doing so, he set a standard for American presidents that lasted until the presidency of Franklin D. Roosevelt, whose taste for power was stronger than the 150 years of precedent set by Washington.

Give the last word to Washington’s great adversary, King George III. The king asked his American painter, Benjamin West, what Washington would do after winning independence. West replied, “They say he will return to his farm.”

“If he does that,” the incredulous monarch said, “he will be the greatest man in the world.”

And so he was. For more on Washington, check out Monday’s podcast.

Habeas and GITMO

There was an important habeas ruling from the D.C. Court of Appeals yesterday.  The Bush administration likes to deflect questions about its policies with rhetoric like “terrorists shouldn’t be clogging our courts with complaints about bad food at Guantanamo.”  The legal stakes are actually quite serious and will affect not only aliens imprisoned outside the United States but Americans as well.  As the report notes, the legal action will move up to the Supreme Court eventually. 

For Cato work related to the writ of habeas corpus, go here and here (pdf).

Prior coverage of this matter here and here.

Philip Morris v. Williams and Class Actions

Yesterday, the Supreme Court decided–five to four–to strike down a punitive damage judgment against Philip Morris under the Due Process Clause.  (Cato, for the record, filed this brief in the case, written by deterrence theorists Steven Shavell and A. Mitchell Polinsky). For commentary on the case, see here and here.  You can watch me talk about the case on CNBC here.

For my money, the most interesting, and potentially far-reaching, implication of the decision is for class actions seeking punitive damages.  

On page 5 of the slip opinion, the Court says that “the Due Process Clause” prohibits a State from punishing an individual “without first providing that individual with ‘an opportunity to present every available defense.’”

That quoted language (from a non-punitives decision, Lindsey v. Normet) hasn’t appeared in the Supreme Court’s other punitive damage cases.  Its appearance here is significant, because Lindsey’s broad, bright-line language is often invoked by defendants in very large class actions, even those that don’t involve punitive damages.  Their argument goes like this:  When courts ”certify” (authorize) a very large class action, they violate due process if the very scale of the suit prevents defendants from raising individualized defenses that are otherwise available under the statute.  Expect Williams to be cited extensively by class action defendants, particularly in class actions seeking punitive damages.

It’s fairly easy to see why Williams is such a boost for these defendants by looking at the Ninth Circuit’s recent decision in Dukes v. Wal-Mart–which upholds a trial court order certifying 1.5 million gender discrimination claims, seeking $11.5 billion in punitive damages and lost pay. 

As the trial court acknowledged, individualized hearings on employees’ claims—the usual practice in later stages of Title VII cases—were impractical in a class action of the mammoth scale envisioned.  The trial court therefore allowed liability and remedies to be proven based on statistical evidence and formulas, barring defendants from making individualized showings that particular employees weren’t discriminated against in fact.   

Wal-Mart, in turn, argued its due process rights had been violated, because it had been deprived of defenses to which it was entitled.  ”In an individual case,” said Wal-Mart, it could present individualized evidence “to establish a complete defense to liability or preclude the entry of a backpay or punitive damage award.” The Rules Enabling Act guarantees the availability of that kind of defense in a class action to the same extent it is available in an individual case.  Given the punitive damage request, Wal-Mart argued, due process prohibited the court from depriving Wal-Mart of its entitlement to raise such individualized defenses.

Williams gives Wal-Mart much more ammunition than past punitive cases to argue this point on appeal to the Supreme Court.  To be sure, the Court’s aside that “it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant’s conduct could have caused” (emphasis added) throws a possible lifeline to the Dukes plaintiffs.  That allows them to argue that a “rough” statistical measure of the harm that “could have been caused” to individual class members is all the proof necessary to anchor punitive damages in large antidiscrimination classes.  Indeed, the trial court in Dukes envisions exactly such a probabilistic measure at the remedies stage of the trial:  “[O]nly those class members who can make a showing that they were either actually harmed by the discriminatory policy or were at least ‘a potential victim of the proved discrimination’ are eligible to recover [lost pay and, therefore, punitive damages].”

This expansive reading of “potential harm” is, however, inconsistent with the Supreme Court’s careful caveat in BMW v. Gore.  There, the Court said that “potential harm” that can anchor a punitive damages award is confined to additional harm to persons who have actually been injured – for example, added harm that was “likely to result” if a defendant’s wrongful scheme hadn’t been prematurely interrupted.  That’s quite a bit narrower than the expansive concept of “potential harm” used in Dukes, which embraces guesstimates about whether any injury occurred at all.

As a result, Willliams, read in the context of previous cases, scores trouble for large-scale punitive damage classes.

Collins’ Confusion

A couple of weeks ago, I went up to Maine to speak about identification issues at a community meeting in Augusta.  This was the night before the state legislature voted overwhelmingly to reject the REAL ID Act. Maine’s bold step catalyzed a nationwide rebellion, and states across the country are now passing resolutions to reject REAL ID.

Along with that resolution, the Maine legislature will be moving a bill that specifically prevents the secretary of state from spending any funds to comply with REAL ID. A real one-two punch.

Now, here’s a little inside baseball: The resolution was introduced by the Democratic Majority Leader of the Senate, Libby Mitchell, and the bill was introduced by Republican Representative Scott Lansley. As can happen, Republicans were a little concerned that the Democrat-introduced resolution would eclipse the Republican-introduced bill in this Democrat-majority legislature. But Mitchell and Lansley got together to be the lead co-sponsors of each others’ measures. Maine is doing the kind of bipartisan cooperation that is so rare in Washington, and Republican Lansley stands to get proper credit for his leadership on this issue.  But …

Along comes U.S. Senator Susan Collins, Republican of Maine, who this week confounded things by introducing a bill to defend and support the REAL ID Act. Her bill would give the DHS two more years to coerce states into implementing this national ID, and it would fiddle around the edges of the rulemaking process. Delaying implementation helps a national ID go forward in a big way because it gives the companies and organizations that sustain themselves on these kinds of projects time to shake the federal money tree and get this $11 billion surveillance mandate funded.

It’s all very confusing. First of all, Senator Collins’ move to support REAL ID faces right into a headwind known as “the will of the people of Maine.”  The state legislature overwhelmingly voted to reject REAL ID. Senator Collins, famous seeker of compromise, appears to be compromising not among the differing interests of her voters, but among the interests of her voters and the interests she hears from in Washington.

Secondly, Republican Collins is crossing up state Republican leaders like Scott Lansley and muddying the party’s message at home. Someone is looking out-of-touch. (Hint: It’s not Scott Lansley.)

The famously moderate Collins is backing a law that is most strongly favored by immoderate anti-immigrant groups.

Here’s what is most bizarre: Collins is moving to support REAL ID even though it stripped out identification provisions in the Intelligence Reform and Terrorism Prevention Act that she is widely credited with crafting!

Senator Collins may be confused. I know I am. Unfortunately, her move to protect REAL ID has attracted some support. Senator Collins should disavow this bill as a blunder, or explain her conversion to support of the REAL ID Act and a national ID.

Senate Homeland Security and Governmental Affairs chairman Joe Lieberman called the drivers license provisions of REAL ID “unworkable“ when it was attached to a military spending bill and rammed through the Senate without a hearing or vote. The passage of an additional two years will make them no more workable.

Genes, Patents and Honest Dealings

Michael Crichton wrote an excellent op-ed, “Patenting Life,” in Tuesday’s New York Times.

I find it hard to disagree with Crichton’s comments, but it might be worth mentioning that his article really deals with two separate arguments. One is that taking something that belongs to others, i.e., actual physical material, without their permission is wrong. The second issue is that innovation is the proper subject of patents, not mere discovery. In the first situation, the question is whether patients should have a right to share in patents developed using their tissue or genes. In the second, the question is whether the genes themselves – not just the products created with them – should be patentable.

Self-determination and self-ownership are essential in a free society. Actual physical material such as tissue samples or actual genes taken from a person’s body should not be acquired or used without informed consent – that includes not using a patient’s tissue to develop and market cell lines or to develop and market medical therapies without the patient’s express consent. It is dishonest to provide patients with misleading consent forms. Some give the impression a patient’s tissue is medical waste that the hospital or doctor should be free to dispose of as necessary. Other consent forms acknowledge that a patient’s tissue may be used to gain knowledge but say nothing of the potential profits to be gained either from that knowledge or from the actual use of the tissue itself.

For consent to tissue acquisition to be informed it must clearly identify a patient’s options: 1) Is the patient making a gift of the tissue and expressly relinquishing any potential profits from medical products developed with that tissue? 2) Is the patient being paid for his tissue and willingly relinquishing any claim to profits from products that may be developed using that tissue? Or, 3) Is the patient being promised a percentage of the profits, should any materialize? Patients must not only be aware of these options but also understand them for there to be true informed consent. To do otherwise is to take something from them under false pretenses.

Patents on genes themselves is a different issue. I’m not a patent lawyer, but if Crichton is correct, it seems the courts have confused the discovery of something new in nature with the creation of something new, i.e., confused pure discovery with innovation. Scientists are awarded Nobel Prizes for discovering new elements, new species, or new diseases, but they usually aren’t, and shouldn’t be, awarded patents for such discoveries. Patents should only be awarded if something new is created – a new process, a new test, a new technique, a new cure, etc. Imagine if Casey and Jacobi had been awarded patents for their 1973 discovery of the Hawaiian Po’ouli Honeycreeper. Anyone who wanted to go looking for the Po’ouli bird would have to pay Casey and Jacobi a licensing fee. Innovative processes used to test for certain genes or their mutations or special processes for recording information about genes should potentially be patentable, but, not the genes themselves – no more than it makes sense to patent the rare and hard to find Po’ouli.

One further distinction is worth making. A patent might be justified if a scientist manipulated a gene to create something new. If a patent were awarded, the patent holder should be required to share his profits with the person from whom the original gene was acquired unless, after full and complete disclosure, that person had willingly and with full understanding relinquished his rights to such profits.

Some Sensible Thoughts on the REAL ID Act

Today I’ll be testifying on the REAL ID Act in a state legislature for the second time in two days. In the morning yesterday, I spoke to the Government Operations Committee of the Utah House of Representatives, along with the Committee’s Chairman Glenn Donnelson (R-North Ogden). His resolution to reject the REAL ID Act was passed unanimously by the committee and sent to the full House.

Mid-day, I flew from Salt Lake City to Boise, Idaho to speak on a panel about REAL ID convened in the capitol building by Representative Phil Hart (R-Athol). Today, Hart’s resolution opposing REAL ID will be heard in the House Transportation and Defense Committee.

Among the people on yesterday’s panel in Boise was Bill Bishop, Director of the Idaho Bureau of Homeland Security. You might think that a homeland security guy would support REAL ID. He doesn’t. Knowing full well he might be making it harder on himself the next time it comes time to getting grants from the U.S. Department of Homeland Security, he laid out his opposition to REAL ID.

Along with his philosophical objections to a national ID, he pointed out its practical weaknesses as a security tool. You can nail down the identity of everyone and you’ll be no better off in preventing something like a terrorist attack. And as soon as you come out with a highly secure, highly valuable ID like the REAL ID, the hackers and forgers will go to work on faking it or corrupting someone in order to get it. It’s a good security practice to diversify your protections rather than creating a single point of failure like the REAL ID Act does. You might make yourself less safe if you rely on a uniform ID system for your security.

What frustrates me about this kind of guy (I say, tongue firmly in cheek) is that I had to study security and risk management for a couple of years before I understood these concepts well enough to put in my book. The Bill Bishops of the world just kinda know it. Not fair.

Summarizing REAL ID’s utility as a national security tool, Bishop said: “I don’t believe in the Easter Bunny, I don’t believe in Santa Claus, and I don’t believe in the Lone Ranger. Which means I don’t believe in silver bullets.”

We ought to take advantage of this kind of wisdom, and the obvious benefits of local knowledge - maybe by coming up with some kind of decentralized governmental structure. I don’t know how you would do that. Just putting an idle thought out there.

Free Kareem Rallies February 15

Friends of freedom will be at dignified rallies in cities around the world on behalf of Abdelkareem, who is awaiting sentencing in Egypt for expressing his opinions on his blog. Rallies will be held in New York, London, Ottawa, Chicago, Bucharest, Washington, Rome, and Paris, and we are hoping for other cities.

In Washington, friends of freedom will gather at noon on February 15 at the Egyptian Cultural and Educational Bureau: 1303 New Hampshire Ave, NW; Washington, DC, near Dupont Circle.

Visit http://www.freekareem.org/ for more details. If you can spare an hour on February 15, please join those who are standing for freedom of speech….and for the freedom of a young man who – agree with him or not – merely spoke his mind.