The petition of the day is: Director of the Department of Revenue of Montana v. Department of the Treasury12-926Issue: (1) Whether the federal savings bond statute and regulations impliedly preempt longstanding state unclaimed property laws, where the statute and regulations are wholly silent on the treatment of unclaimed bonds and where Congress has expressly preempted state unclaimed property laws in numerous other contexts; and (2) whether application of state unclaimed property laws to unclaimed U.S. savings bonds owned by state residents violates the intergovernmental immunity doctrine, where these laws reflect the states’ exercise of constitutionally reserved escheat power. In association with Bloomberg Law

Kevin Bennardo (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers on SSRN. Here is the abstract: A sentencing appellate waiver is a promise by a criminal defendant not to...

Pavlos Eleftheriadis (University of Oxford - Faculty of Law) has posted Democracy in the Eurozone (WG Ringe and P Huber (eds), Legal Challenges Arising out of the Global Financial Crisis: Bail-outs, the Euro, and Regulation (Oxford: Hart Publishing) (2013, Forthcoming)) on SSRN. Here is the abstract: In December 2012 Four Presidents of the European Union (of the European Council, the Commission, the Central Bank and the Eurogroup) issued a paper outlining steps for a ‘genuine monetary union’ promising among others better democratic accountability for its institutions. This essay asks if an entity like the European Union - and the Eurozone within it - can indeed become democratic. I distinguish between two approaches to democracy, first as collective self-government or, second, as set of egalitarian institutions. The essay argues that the German Federal Constitutional Court supports the first theory and for that reason is very cautious of the idea of bringing democracy to the European Union. The collective view believes that without a single people, there cannot be self-government. The second theory accepts the primacy of domestic democracy but allows, by contrast, for international institutions of democratic accountability that support domestic democracy. I offer some arguments for this view and conclude that the four Presidents are not mistaken in endorsing the ambition of democratic accountability for the Eurozone. The European Union is a union of peoples. A union of this kind can become more democratic without seeking to become a democracy.

(Eugene Volokh) A very interesting question, raised in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, a certiorari petition now pending before the Court. Profs. John Duffy (Virginia), Peter Strauss (Columbia), and Michael Herz (Cardozo) — an illustrious trio who often take quite different views about other subjects — have an item about this at Concurring Opinions; here’s an excerpt (click on the Concurring Opinions post for links): Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime. The White House responded by promising to seek legislation to overturn the Librarian’s rule. That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views. See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here. There’s only one problem with all of this: The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts. According to the Administration’s filings in litigation that has now reached the Supreme Court, the Library of Congress is “an executive Department,” and the Librarian himself is “subject to plenary oversight by the President.” Justice Department lawyers have explained that Congress made a “purposeful decision to place the Library under the President’s direct control and supervision”; that the Librarian of Congress is the “Head” of this “executive Department”; that the President may remove the Librarian “at will” just as he may remove other heads of executive departments; and that this removal power creates the Librarian’s “here-and-now subservience” to the President. See pages 16 & 17 of the Government’s Brief in Opposition filed at the Supreme Court, available here and pages 23, 29 & 37 the Government’s Brief for Appellees filed in the Court of Appeals, available here. In light of that clear legal position, an obvious question arises: If the Librarian is really a head of an executive Department subject to “plenary oversight by the President,” why hasn’t the President either taken responsibility for criminalizing cell phone unlocking or ordered the Librarian to reverse his decision? The answer is that no one in the political arena actually believes for one minute that the Librarian is the head of an executive department. The current Librarian has repeatedly testified to Congress that the Library is “arm of the United States Congress,” “a “branch of the Legislative branch,” and “a unique part of the Legislative Branch of the government.” Members of Congress also understand this to be true. To take but one prominent example, Senator Orrin Hatch has noted not only that “the Copyright Office is in the legislative branch of the Government” but also that this arrangement presents difficulty because “whenever the Copyright Office is tasked with an executive-type function, [a] constitutional question arises.” The President’s supposed powers of “plenary oversight” and at-will removal are utter fiction, as the controversy about cell phone unlocking shows.... Why then are the Administration’s lawyers arguing that the Librarian is a presidential underling? The answer is easy. The Librarian has been vested with the power to appoint all of the officers who execute the copyright laws—including the Registrar of Copyrights and the judges of the Copyright Royalty Board—but the “Appointments Clause” of the Constitution makes clear that such power can be lodged in the Librarian only if he is the head of an Executive Department....

Posted by D. Daniel Sokol Ulrich Heimeshoff and Gordon J. Klein (both Heinrich-Heine-Universitat Dusseldorf) have a new paper on Bargaining power and local heroes. ABSTRACT: Bargaining Power of retailers is an important aspect of discourse in many industrialized countries, including...

(Orin Kerr) I’ve blogged a few times about the substantial lower court division on whether the police can search a seized cell phone incident to arrest without a warrant under the Fourth Amendment. Today the First Circuit further deepened the split in United States v. Wurie by holding that a warrant is required. With Wurie today and the Florida Supreme Court’s decision in Smallwood a few weeks ago, I would think that Supreme Court review of this legal question is highly likely sometime soon. (Notably, Deputy SG Michael Dreeben argued Wurie for DOJ.) For my own views on the question, see my short essay Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013).

by John Duffy, Peter Strauss and Michael Herz Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime.  The White House responded by promising to seek legislation to overturn the Librarian’s rule.  That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views.  See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here. There’s only one problem with all of this:  The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts. According to the Administration’s filings in litigation that has now reached the Supreme Court, the Library of Congress is “an executive Department,” and the Librarian himself is “subject to plenary oversight by the President.”  Justice Department lawyers have explained that Congress made a “purposeful decision to place the Library under the President’s direct control and supervision”; that the Librarian of Congress is the “Head” of this “executive Department”; that the President may remove the Librarian “at will” just as he may remove other heads of executive departments; and that this removal power creates the Librarian’s “here-and-now subservience” to the President.  (See pages 16 & 17 of the Government’s Brief in Opposition filed at the Supreme Court, available here and pages 23, 29 & 37 the Government’s Brief for Appellees filed in the Court of Appeals, available here. In light of that clear legal position, an obvious question arises:  If the Librarian is really a head of an executive Department subject to “plenary oversight by the President,” why hasn’t the President either taken responsibility for criminalizing cell phone unlocking or ordered the Librarian to reverse his decision? The answer is that no one in the political arena actually believes for one minute that the Librarian is the head of an executive department.  The current Librarian has repeatedly testified to Congress that the Library is “arm of the United States Congress,” “a “branch of the Legislative branch,” and “a unique part of the Legislative Branch of the government.” Members of Congress also understand this to be true.  To take but one prominent example, Senator Oren Hatch has noted not only that “the Copyright Office is in the legislative branch of the Government” but also that this arrangement presents difficulty because “whenever the Copyright Office is tasked with an executive-type function, [a] constitutional question arises.” The President’s supposed powers of “plenary oversight” and at-will removal are utter fiction, as the controversy about cell phone unlocking shows.  Indeed, although the legal force of the assertion is doubtful, the Library’s own website states that the precedent has been “established that a Librarian of Congress is appointed for life.” Bold though it seems, that statement is accurate:  Since the current administrative structure for the Library was established in 1897, no President has ever removed a Librarian of Congress, and the Librarians’ average tenure exceeds in duration that enjoyed by Chief Justices of the United States.  The current Librarian is 83 years old and was appointed by President Reagan. Why then are the Administration’s lawyers arguing that the Librarian is a presidential underling?  The answer is easy.  The Librarian has been vested with the power to appoint all of the officers who execute the copyright laws—including the Registrar of Copyrights and the judges of the Copyright Royalty Board—but the “Appointments Clause” of the Constitution makes clear that such power can be lodged in t

The following is a series of questions posed to Floyd Abrams by Ronald Collins on the occasion of the publication of Abrams’s new book, Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013). Welcome, Floyd.  Thank you for taking the time to participate in this Question and Answer exchange for our readers.  And congratulations on the publication of your second book. Question: You’re seventy-six years old and still quite active in litigating First Amendment cases. And now another book about your life in the law, the law of the First Amendment, that is.  Would it be fair to say that you love your work?   Answer: Yes. I’ve been very lucky in a lot of ways — my family, my law firm, and my good fortune in being able to devote a good deal of my professional and personal time to seeking to protect and expand First Amendment  principles. Question: The title and subtitle of your latest book suggest that you are venturing, on the one hand,  to help the Court better understand the First Amendment while, on the other hand, battling those who would undermine the First Amendment.  Can you say a few words about your roles as educator and combatant?   Answer: I think it is possible to play both roles — educator and litigator.  Indeed, some litigation, particularly on constitutional topics, necessarily and inevitably educates and sometimes even enlightens. But the role of a litigator, after all, is to seek to prevail — the litigation equivalent of Justice William Brennan telling his law clerks that the most important thing for a member of the Court is to know how to count to five. I also, and independently from my appearances in courts, have given a lot of speeches, written a lot of articles and engaged in a lot of debates, many of which are set forth in Friend of the Court. It is in those documents, far more than what I say as counsel, that my own views are set forth. Question: In the Introduction to Friend of the Court you mention the gulf between the First Amendment bar and those who in the legal academy who write about the First Amendment.  Share with us some of your thoughts on that subject and how law schools train their students. Answer: My core criticism of the legal academy, at least in its First Amendment teaching, is not that it’s too “academic”; it’s that it doesn’t take the First Amendment — at least as I understand it — seriously enough. In my book, I quote twice from a passage of Isaiah Berlin in which he observed that “[e]verything is what it is: liberty is liberty, not equality or fairness or justice or culture, or human happiness or a quiet conscience.” In this country, I would substitute the words “First Amendment” for “liberty.” That does not mean that equality and other significant values necessarily lack constitutional or other legal support; it does mean that when we speak of the First Amendment, we should be speaking of individual liberty and not of a watered-down version drafted to accommodate those other interests — ones which can generally be protected without intruding into areas protected by the First Amendment. Question: The legal philosopher Ronald Dworkin, who died recently, admonished: “we must take care not to convert the First Amendment from a matter of principle to a pointless mantra that subverts rather than sustains democracy.”  What is your answer to that? Answer: Ronald Dworkin was a great student and teacher of both philosophy and law and we should be grateful that he has left so significant a body of work for us to continue to learn from. But I think he erred greatly in maintaining that First Amendment cases should be decided on the basis  of our view — or the Supreme Court’s view — of whether or not the speech at issue in a case  advances “democracy.”  That was one basis for his disapproval of the Citizens United ruling. My view is that suppression of speech, particularly but not exclusively political speech

Chantal Mak (University of Amsterdam - Centre for the Study of European Contract Law (CSECL)) has posted The One and the Many: Translating Insights from Constitutional Pluralism to European Contract Law Theory (European Review of Private Law, Forthcoming) on SSRN. Here is the abstract: While freedom of contract has generally been recognised as a leading principle of European contract law, national contract laws as well as EU measures show remarkable differences with respect to the limits they impose on contractual freedom in light of the public interest or common good. Whereas some private legal scholars aspire to relate all rules of private law to a single value (monist theories), others consider it impossible to find such a common denominator (radical pluralist theories). In this paper, it is submitted that a moderate pluralist theory offers the most convincing narrative to explain current developments in this field, since it defines a meta-level on which diverging ideas of contract law can be reconciled by the definition of coordinating principles. These meta-principles indicate which conception of the common good prevails in a specific case and on which level (European or national) final decision-making authority is allocated in that case. Through an analysis of examples from case law (the story of the CJEU’s Viking and Laval judgments, and the Court’s recent decision in the Aziz case) it is argued that a moderate pluralist theory also provides the most convincing normative model for the further development of European contract law.

EFF Will Accept Bitcoins to Support Digital Liberty. This follows a 2-year moratorium. One key difference from past practice: EFF will liquidate any Bitcoins it receives as soon as it gets them. EFF’s announcement pointed me to this recent (March 18, 2013) Fincen guidance document, Application of FinCEN’s Regulations to Persons Administering, Exchanging, or Using Virtual Currencies which I had missed. Key graph: A user who obtains convertible virtual currency and uses it to purchase real or virtual goods or services is not an MSB [Money Services Businesses] under FinCEN’s regulations. Such activity, in and of itself, does not fit within the definition of “money transmission services” and therefore is not subject to FinCEN’s registration, reporting, and recordkeeping regulations for MSBs.