Topic: Law and Civil Liberties

Attention, Legal and Political Thinkers: A New Scholarly Resource

Rediscovering Bruno Leoni

There’s a new resource from Italy’s Instituto Bruno Leoni: a scholarly web resource on the ideas and work of the great legal scholar for whom the Institute is named, “Rediscovering Bruno Leoni.” It has both Italian and English versions and includes mp3 files of some of Leoni’s lectures.

Leoni showed a deep understanding of law and its relationship to voluntary social order. His work on the evolution of law greatly influenced F. A. Hayek and other writers who outlived him. In contrast to prevailing views, he argued that law is not simply an assertion of power, as the legal positivists insist, i.e., a set of “commands of a sovereign,” but traces back to the claims made by individuals and adjudicated through a complex process of interaction. As Leoni argued in “Law as Claim of the Individual,”

The legal process always traces back in the end to individual claim. Individuals make the law, insofar as they make successful claims. They not only make previsions and predictions, but try to have these predictions succeed by their own intervention in the process. Judges, juris-consults, and, above all, legislators are just individuals who find themselves in a particular position to influence the whole process through their own intervention.

The cases we bring to court and the cases we don’t all are part of the law-making process. The role played by elected legislators is important in the creation of a legal order, but it is almost always overrated. Most of the law that governs our everyday lives resulted from relatively decentralized common law (or Roman law) processes, and not from the “commands” of sovereigns.
Additional resources on Bruno Leoni (and on many hundreds of other deep thinkers) can be found at the extensive and brilliantly organized “Online Library of Liberty.”

Other writers with a similar appreciation of law as an evolved body of rules of just conduct include Lon Fuller of Harvard Law School (especially in his classic work The Morality of Law), F. A. Hayek (notably in Law, Legislation, and Liberty, Vol. I: Rules and Order; his classic 1945 American Economic Review essay on “The Use of Knowledge in Society” is must reading for understanding complex social processes, including the evolution of law), and Randy Barnett of Georgetown University, a Cato Institute senior fellow and author of Restoring the Lost Constitution: The Presumption of Liberty and The Structure of Liberty: Justice and the Rule of Law.
So, budding law students and political scientists. Have at it!

Freedom of the Press and Venezuela

There’s a general relationship between freedom of the press and economic freedom. My research assistant prepared the graph below showing that correlation. Countries that are more economically free tend to have a freer press.

Economic Freedom and Freedom of the Press

[Click picture for larger version]

Venezuelans have been finding that out in recent years as their level of economic freedom, which has been in steady decline during the past few decades, has fallen rapidly under the government of Hugo Chávez. Venezuela now ranks 126 out of 130 countries in the Fraser Institute’s economic freedom index (in 1985 it ranked 25th out of 111 countries). When you concentrate economic power in political hands, the institutions of civil society lose their independence.

The latest casualty in Chávez’s campaign to control the media is Radio Caracas Television (RCTV), whose license the government recently announced will not be renewed. RCTV, founded in 1930, was one of only a few remaining TV stations critical of the government in a country where media outlets are practicing various degrees of self censorship. But, according to the Venezuelan communication minister, RCTV’s “irresponsible attitude hasn’t changed.” Symbolizing the government’s intolerance of dissent is a law passed last year that can land individuals for months or years in jail for expressing disrespectful words about government officials.

The model looks suspiciously similar to that of Vladimir Putin’s Russia, where television stations refrain from criticizing the Kremlin, but a few leading newspapers still do not. In both Venezuela and Russia, relatively few people read newspapers; it is the electronic media that informs the general public.

Journalist and Venezuelan-born Cato adjunct scholar Carlos Ball tells a personal anecdote about the long-term decline of freedom in Venezuela (see his op-ed in Spanish here http://www.elcato.org/node/2143 ). In May 1987, Carlos was the editor of the Diario de Caracas, a leading newspaper. The paper belonged to the business group that owned RCTV. Then-president Jaime Lusinchi conditioned the renewal of RCTV’s license on Carlos Ball’s dismissal. Carlos was fired and the station got a 20-year license. It is that license that is expiring in May. According to Carlos, the road to political and economic centralization was set decades before Chávez declared his so-called socialism of the 21st century. The treatment of RCTV is only the most recent reminder that it is no longer accurate to refer to Venezuela as a democracy.

Jailed for a Blog


Please Help This Young Man

Yesterday’s International Herald Tribune ran this article by my admired friends Dalia Ziada and Jesse Sage:

CAIRO: In a cramped jail cell in Alexandria, Egypt, sits a soft-spoken 22- year-old student. Kareem Amer was sent to prison for over a month for allegedly “defaming the president of Egypt” and “highlighting inappropriate aspects that harm the reputation of Egypt.” Where did Amer commit these supposed felonies? On his weblog.

If the Alexandria prosecutors’ standards of censorship were applied in the United States or Europe, thousands upon thousands of bloggers would be behind bars. The basic right of individual free expression is sadly not respected in today’s Egypt. Yet the authorities’ decision to jail an obscure student for his writing reveals a larger struggle for free speech playing out between dissident bloggers and state prosecutors across the Middle East.

That gives the basics of the case. The entire article is available here.

Thousands have already signed the online petition (but more are needed for it to be effective). Others are writing respectful letters (the only kind that work) to the Egyptian authorities. Resources, including banner ads for blogs and websites, information, press coverage, and more, are available at www.FreeKareem.org.

Sandy Berger: Oops, I Must Have Accidentally Stuck the Wrong Papers in My Briefcase, Hidden Them under a Construction Trailer, Come Back to Get Them, and Cut Them into Shreds

The Washington Post reports

On the evening of Oct. 2, 2003, former White House national security adviser Samuel R. “Sandy” Berger stashed highly classified documents he had taken from the National Archives beneath a construction trailer at the corner of Ninth Street and Pennsylvania Avenue NW so he could surreptitiously retrieve them later and take them to his office, according to a newly disclosed government investigation.

The documents he took detailed how the Clinton administration had responded to the threat of terrorist attacks at the end of 1999. Berger removed a total of five copies of the same document without authorization and later used scissors to destroy three before placing them in his office trash, the National Archives inspector general concluded in a Nov. 4, 2005, report.

After archives officials accused him of taking the documents, Berger told investigators, he “tried to find the trash collector but had no luck.” But instead of admitting he had removed them deliberately — by stuffing them in his suit pockets on multiple occasions — Berger initially said he had removed them by mistake.

The fact that Berger, one of President Bill Clinton’s closest aides from 1997 to 2001, illicitly removed the documents is well-known: A federal judge in September 2005 ordered him to pay a $50,000 fine for his actions and forfeit his security clearance for three years.

What Berger did, and the ham-handed and comical methods by which he did it, are freshly detailed in the National Archives report, which the Associated Press obtained first under a Freedom of Information Act request.

Although the report reiterates that Berger’s main motive was to prepare himself for testifying before a commission investigating the Sept. 11 attacks, it makes clear that he not only sought to study the documents but also destroyed some copies and — when initially confronted — denied he had done so.

His lawyer, Lanny Breuer, said in a statement yesterday that Berger “considers this matter closed, and he is pleased to have moved on.”

More special rules for Washington insiders?

HHS Considering Nationwide System of Electronic Healthcare Records

The Department of Health and Human Services (HHS) has given notice in the Federal Register that it would like to receive comments on, among other things, a recommendation by the American Health Information Community (AHIC), a chartered federal advisory committee, to advance the development of electronic health records (EHR).

The recommendations suggest a nationwide approach to developing digital and interoperable health IT systems. (“Request for Information (RFI): Improving Health and Accelerating Personalized Health Care Through Health Information Technology and Genomic Information in Population — and Community — Based Health Care Delivery Systems.” 71 FR 64282 (Nov. 1, 2006). Comment period closes Jan. 2, 2007.)

There is no doubt that the sharing of healthcare information can be in a patient’s best interest and contribute to the facility and accuracy with which the healthcare system cares for patients. Nevertheless, healthcare information should remain as much as possible within a patient’s own control. Healthcare institutions may wish to establish shared databases, but the government should not mandate or suggest that the Joint Commission on Accreditation of Healthcare Organizations or states mandate integrated data networks.

The U.S. healthcare system is suffering from a serious trust crisis and mandating the collection of medical data may very well add to that crisis. Many people associate data collection with criminal data bases and fear the misuse of widely available data. The perception of possible misuse, regardless of how real or unreal that perception may be, is going to create mistrust and suspicion of everyone involved in the data collection process. 

In addition to the publicly perceived dangers of such a system, there is at least one just as efficient, but much less costly, alternative: Digital healthcare memory, or “data sticks,” could provide each patient with his or her own personal database. A patient’s memory stick could be plugged into any doctor’s or hospital’s computer, making the patient’s medical records available everywhere in the world, not just within a national network of hospitals. This simple and relatively inexpensive solution would leave a person’s medical records completely in his or her own control, allowing the person to decide when, where, and to whom to disclose such personal information.

At least one company, PinnacleCare, provides such data collection as part of its comprehensive range of patient support services. There is no reason why hospitals, as a customer service, couldn’t provide such data downloads as part of their services. Physicians and hospitals already photocopy records for patients, so why not simply provide digital downloading of such records instead? 

Digital records are easily updated and transported. Patients, if they chose to do so, could wear their medical data stick on a lanyard, carry it in their wallet, leave it at home, or lock it in a safe. The choice of what to do with a person’s personal medical data and how to protect it would rest with the patient. 

Such a solution would be simple, cheaper and make personal medical more readily available to a wider range of practitioners — all without risking further erosion of patient trust in the healthcare system.

Prosecutors Subpoena ACLU

Federal prosecutors are using a grand jury subpoena in an attempt to force the ACLU to return a leaked document, which was apparently classified.

The grand jury is a legal enigma.  For background, read this Cato study

Excerpt:

The grand jury is perhaps the most mysterious institution in the American criminal justice system. While most people are generally familiar with the function of the police officer, the prosecutor, the defense lawyer, the judge, and the trial jury, few have any idea about what the grand jury is supposed to do and its day-to-day operation. That ignorance largely explains how some over-reaching prosecutors have been able to pervert the grand jury, whose original purpose was to check prosecutorial power, into an inquisitorial bulldozer that enhances the power of government and now runs roughshod over the constitutional rights of citizens.

Like its more famous relative, the trial jury, the grand jury consists of laypeople who are summoned to the courthouse to fulfill a civic duty. However, the work of the grand jury takes place well before any trial. The primary function of the grand jury is to inquire into the commission of crimes within its jurisdiction and then determine whether an indictment should issue against any particular person. But, in sharp contrast to the trial setting, the jurors hear only one side of the story and there is no judge overseeing the process. With no judge or opposing counsel in the room, grand jurors naturally defer to the prosecutor since he is the most knowledgeable official on the scene. Indeed, the single most important fact to appreciate about the grand jury system is that it is the prosecutor who calls the shots and dominates the entire process.

This ACLU case has the potential for a landmark precedent regarding the scope of the grand jury’s subpoena power.

Posner’s “Avatar” Talks Law

Seventh Circuit Judge Richard Posner’s “avatar” recently engaged in an online discussion in “Second Life,” a virtual online world.  A transcript is now available at New World Notes here

For those of you who aren’t familiar with Posner, he is perhaps the most influential, and certainly the most prolific, federal judge alive.  For those of you who aren’t familiar with avatars or virtual worlds–and, to be quite honest, I fall in this camp, having only heard about this phenomenon secondhand (in Larry Lessig’s great book, Code and Other Laws of Cyberspace)–see these descriptions

Here’s a taste of the sometimes surreal discussion (“JRP” is Posner, SL stands–I think–for “Second Life”):

Ludwig Swain: Copyright question: would you consider the “cloning” of a copyrighted real world architectural work into SL to be infringement or fair use?

Ben Solomon: No fair. That’s Bill Patry’s question

JRP: I think Patry is in here somewhere– maybe he’s the raccoon.

Basman Kepler: I believe Patry has described his avatar as looking like Swiper the Fox from the Dora cartoons.

JRP:  Great question on cloning a copyrighted real world architectural work into SL– probably infringement, on the theory that the SL counterpart is a derivative work, hence the property of the copyright holder.  These are excellent questions!

Say what you will about Posner, he has a sense of humor.