The Volokh Conspiracy

The Third Circuit has handed down an interesting Second Amendment decision, United States v. Marzzarella. It begins:
This appeal presents a single issue, whether Defendant Michael Marzzarella’s conviction under 18 U.S.C. § 922(k) for possession of a handgun with an obliterated serial number violates his Second Amendment right to keep and bear arms. We hold it does not and accordingly will affirm the conviction.

From the opinion:
The District Court could not identify, and Marzzarella does not assert, any lawful purpose served by obliterating a serial number on a firearm. Because a firearm with a serial number is equally effective as a firearm without one, there would appear to be no compelling reason why a law-abiding citizen would prefer an unmarked firearm. These weapons would then have value primarily for persons seeking to use them for illicit purposes. . . . . An unmarked firearm, on the other hand, is no more damaging than a marked firearm.

Accordingly, while the Government argues that § 922(k) does not impair any Second Amendment rights, we cannot be certain that the possession of unmarked firearms in the home is excluded from the right to bear arms. Because we conclude § 922(k) would pass constitutional muster even if it burdens protected conduct, we need not decide whether Marzzarella’s right to bear arms was infringed.

The court concludes that different levels of scrutiny should apply to different Second Amendment restrictions, but that intermediate scrutiny should apply to this particular restriction. According to the Third Circuit, the restriction satisfies the intermediate scrutiny standard (and would even satisfy strict scrutiny, the court indicates):
[P]reserving the ability of law enforcement to conduct serial number tracing—effectuated by limiting the availability of untraceable firearms—constitutes a substantial or important interest. Section 922(k) also fits reasonably with that interest in that it reaches only conduct creating a substantial risk of rendering a firearm untraceable. Because unmarked weapons are functionally no different from marked weapons, § 922(k) does not limit the possession of any class of firearms. Moreover, because we, like the District Court, cannot conceive of a lawful purpose for which a person would prefer an unmarked firearm, the burden will almost always fall only on those intending to engage in illicit behavior. Regulating the possession of unmarked firearms—and no other firearms—therefore fits closely with the interest in ensuring the traceability of weapons. Accordingly, § 922(k) passes muster under intermediate scrutiny.

Eugene is cited along the way, but for a First Amendment article rather than a Second Amendment article (see p.30). 

Thanks to Howard Bashman for the link.

Friday, the Michigan Supreme Court handed down an interesting case — People v. Dupree on this. The case is not novel, and my sense is that the defense is generally recognized: Just as what would otherwise be the crime of murder, attempted murder, battery, and the like might be justified if done in defense against an imminent threat, so a felon’s taking possession of a gun is justified if done in defense against an imminent threat. (The defense does not apply to a felon’s arming himself against a possible threat of attack at some indefinite future time.) Still, the case struck me as an interesting illustration. Thanks to Jason C. Miller for the pointer.

Geologic time makes you feel so sort of insignificant, doesn’t it?

Via Tom Smith.

Ronald Reagan once said that the conservative D.C. weekly Human Events was his favorite newspaper. And with good reason. Back in the 1970s and 1980s, there were few significant alternatives to the then-hegemonic MSM. Along with National Review, which was Reagan’s favorite magazine, Human Events was an essential source for stories that the MSM refused to cover, and for perspectives that the MSM shut out or marginalized. Unfortunately, a recent article in Human Events falls very far below the solid journalism standards which helped Human Events earn the respect of Reagan and so many others.

“Obama The Muslim,” by  Major Gen. Jerry Curry is an article not worthy of a fifth-rate blog, let alone a serious newspaper. The latter two-thirds of the article consists of criticisms of Obama’s policies on Israel and on Arizona border security. I generally agree with those criticisms, but they provide not a shred of evidence that Obama is a Muslim. Former President Jimmy Carter is extremely hostile to Israel, and he is obviously not a Muslim. U.S. Rep. Luis Gutierrez (D-Ill.) is extremely hostile to border security, and he is not a Muslim. 

So let’s consider the evidence that Curry deploys in the first third of the article:

“President Obama says there is nothing more beautiful than the Muslim call to prayer in the evening.” “Obama’s father and step-father were Muslims and he spent his childhood living in a Muslim country where his school enrollment records say his religion is Islam.”

–All approximately but not precisely true. Four years of his childhood in Indonesia, plus a school record there. The actual prayer call quote is “one of the prettiest sounds on Earth at sunset,” not “nothing more beautiful.” This is a starting point for Curry’s case, but in itself, not even close to proof that Obama is currently a Muslim.

“He says that the United States was not founded as a Christian nation.”

–The same position was taken by the United States Senate in 1797 when ratifying the Treaty of Tripoli, and by President John Adams in signing the Treaty. Neither President Adams nor any of the 1797 U.S. Senators were Muslims.  Article 11 of the Treaty stated:

As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

“As President of the United States he genuflects to the Muslim King of Saudi Arabia but not the Christian Queen of England. He thumbs his nose at America’s friends and bows to its enemies.”

–I agree that Obama is deferential and obsequious to American enemies such a Hugo Chavez and the Iranian tyrants, and that he has been the most anti-British President of the United States in well over a century, and that he is seriously harming American relations with Poland, the Czech Republic, France, and other allies. But none of that is evidence that he’s a Muslim.

As for the Saudi king: Obama did not “genuflect.” To genuflect, in a literal sense, is to bring at least one knee to the ground, as a sign of respect. Obama did not do that. He gave the Saudi king a deep bow from the waist. I thought this was a disgusting gesture for an American President, but it’s not genuflection. (“Genuflect” can also be used in a looser sense, as behaving in a servile manner. In the article, however, Curry is plainly talking about literal physical actions.)

However, Obama bowed even lower to the Emperor and Empress of Japan. That’s not evidence that Obama is a closet Shinto.

As Curry accurately states, Obama gave only the mildest quasi-bow to Queen Elizabeth II. In light of what 1776 was all about, patriotic Americans should not criticize the American President for insufficient bowing to the British monarch. One can infer from Obama’s bowing patterns that he is anti-British, and one can see that in Japan and Saudi Arabia, he went out of his way to make gestures which made himself and our nation look weak and obsequious. The bowing is evidence that he’s a poor President, but not that he’s a closet Muslim.

According to Curry, “My mother believed in ‘common sense’ testing. She said if it looks like a duck, quacks like a duck, waddles like a duck and acts like a duck; it’s a duck....In short, Obama quacks like a Muslim, waddles like a Muslim and acts like a Muslim, so is he a Muslim? My mother would say, ‘Yes! He’s a Muslim through and through.’”

I’ll give Mrs. Curry more credit than that. The looks/talks/waddles test for duck identification involves three characteristics are shared by ducks and by no other animals. Mr. Curry, however, listed only characteristics which are common to some Muslims and many non-Muslims: thinks America is not a Christian nation, dislikes the British, acts obsequious around some non-British royals, is anti-Israel, is weak on border security, tries to ingratiate himself with tyrants. Curry might as well have written, “It has two eyes, lives near water, and eats fish.” Sure, it might be a duck, but it also might be a lots of other things. Such as a law school lecturer who agrees with most of the beliefs of the far-left Christian church he attended for twenty years.

Curry’s final item of alleged proof: “Growing up as a Muslim, Obama must have learned that according to the Qur’an it is acceptable to lie, deceive and live by a double standard provided in so doing one advances Islamic goals. Muslims only pretend to trust and be friends with non-Muslims; in the deepest of their Muslim hearts they have been taught that all non-Muslims are infidels.”

–Generally speaking, “must have” conjectures are not evidence of anything. For the sake of argument, let’s temporarily accept the claim that Islamic teaching sanctions lying in certain cases. Even so, there is no evidence that “Obama must have learned” this particular alleged teaching. His Muslim education did not continue past an early age. It might be plausible to presume that he was taught some elementary tenets of Islam (e.g., there is only one God; God spoke to mankind through a series of prophets, culminating in Muhammed; the Qur’an is scripture.) There is simply no evidence that the “lying to infidels is OK” theory of Islam is universally taught in Muslim education for young children, or, for that matter, to all persons who progress through a full course of Muslim religious instruction. That some Muslims teach the acceptability of lying, and that some Muslim scholars endorse this approach, does not prove that Obama “must have” been taught this particular theory.

It would usually be a sign of bad character for any elected official to proclaim his adherence to one religion while secretly adhering to a very different religion. However, Curry’s strongly-stated conclusion is not even remotely supported by the feeble and poorly-researched evidence which he cobbles together. The article should never have been published by Human Events. Of course even eminent publications such as The Atlantic can have a writer who wallows in malicious speculation based on extremely weak and poorly-considered evidence. 

Jerry Curry’s article is not proof that Human Events never produces good articles, nor is Andrew Sullivan’s Trig Trutherism proof that The Atlantic does not publish good articles. However, because reading time is finite, when I choose to read an edited periodical, I try to choose periodicals for which I have confidence that the editors have done a good job in selecting reliable, credible columnists. Accordingly, Human Events’ retention of Curry as a columnist, like The Atlantic’s  retention of Sullivan, often make me choose to prioritize reading other periodicals instead.

I think that in our multicultural time, all Americans should be able to answer some basic questions about various minority groups. Here are three that come to my mind:

1. In December, most African-Americans celebrate a winter holiday called __.

2. Most American Jews organize their lives around the __ calendar.

3. People in the 48 contiguous states who are descended from peoples who inhabited the Americas before the European conquest (but are not Hispanic) are most likely to prefer that their racial group be called __. [UPDATE: I added the parenthetical in response to Bumpjon’s comment, and the reality that many people do treat Hispanic as a racial designation, even though the census and many others view it as an ethnic one that could apply to people of any race.]

To see the answers, click on the “Continue” link that immediately follows this line:

1. Christmas.

2. Gregorian.

3. American Indian (according to 1995 data; please let me know if you know of more recent data).

From Sonnier v. Crain (5th Cir. July 27):
Sonnier argues ... that SLU’s speech policy violates the First Amendment because it gives the University the “sole discretion ... in determining both the need for, and the strength of the security” at the public assembly or demonstration, and assesses the cost of additional security on the sponsoring individual or organization. In response, the defendants assert that the fee has never been charged. Regardless of whether the fee has ever been charged, we agree with Sonnier.

In Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a virtually identical security fee provision that required organizations to pay for “the cost of necessary and reasonable protection [for assemblies] ... [that] exceeds the usual and normal costs of law enforcement ....” The Forsyth County Court found the security fee unconstitutional because, among other reasons, the regulation included no
objective standards directing how to establish the level of the fee. Instead, the amount of the security fee was left to the “whim of the administrator.”

The SLU security fee provision has the same shortcomings as the ordinance struck down in Forsyth County. As the policy states, determining the additional amount of security needed is at the “sole discretion” of the University; no objective factors are provided for the University to rely upon when making such a determination. Because of the unbridled discretion this provision gives to the University, we conclude that the district court abused its discretion in denying a preliminary injunction with regards to the security fee.

The court had no occasion to discuss the second basis for the Forsyth County decision, which was (and here I quote the Supreme Court’s decision as to parades on public streets in Forsyth, rather than the Fifth Circuit’s decision as to demonstrations at public universities in Sonnier),
The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech.

The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said ... activit[y].” In order to assess accurately the cost of security for parade participants, the administrator “‘must necessarily examine the content of the message that is conveyed,’” estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit....

The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

But I think this prong of Forsyth would likewise apply to universities, under the Fifth Circuit’s logic:

1. The Supreme Court in Forsyth held that security fees (A) couldn’t be imposed using the administrator’s unfettered discretion, because of the risk of content discrimination when such discretion is exercised, and (B) couldn’t be imposed even using nondiscretionary rules when those rules turned on the likely public reaction to the content of the speech.
2. The Fifth Circuit in Sonnier concluded that precedents related to content-neutral restrictions on speech on public streets did not apply fully to speech on public university land, and that universities should have more latitude (though not unlimited latitude) to impose such content-neutral restrictions.
3. But the Fifth Circuit nonetheless held that prong A of Forsyth applies automatically to speech on public university campuses, without any talk of more latitude being given to universities where discretionary fee policies were involved.
4. This suggests that prong B of Forsyth would likewise apply automatically to speech on public university campuses, since both prong A and prong B are animated by the same concern — the worry that the fees might be imposed based on content, either because of the administrator’s exercise of his unfettered discretion, or because of the likely public hostility to the content of the speech.

This is a pretty important issue, since my sense is that many universities do require security fees, sometimes based on the likely public reaction to the speech; see, for instance, here and here. And to my knowledge the Fifth Circuit opinion is the first appellate court decision to deal with public universities’ potentially content-based security fee policies; so I expect it to be influential even outside the Fifth Circuit.

Sonnier v. Crain (5th Cir. July 27) has an interesting discussion, in which the Fifth Circuit panel (by a 2-to-1 vote) defers considerably to universities’ prerogatives, even without deciding that the university locations are not public fora. The appellate court upholds the trial court’s denial of a preliminary injunction of a policy that required all public assemblies or demonstrations — even organized by small groups — to get a permit (1) for which seven days’ notice was required, (2) which would only be issued to each individual or group for two hours once per week, (3) for which the applicant had to provide various personal information, and (4) which was limited to a few specific locations around campus. The court repeatedly stressed that even though some such restrictions might be unconstitutional on city sidewalks and other such places, the university had broader authority to imposed content-neutral speech restrictions on its campus.

The court did note, however, that the plaintiff might still prevail in an as-applied challenge, after more discovery. Its reasoning is also limited to content-neutral speech restrictions.

It’s Ostergren v. Cuccinelli (4th Cir. July 26). I’m on a trip with my son and can’t blog much this week, and the case is complex enough that I can’t quickly summarize it, though the short answer is that the speaker won. But if you’re interested in free speech vs. information privacy questions, you should check it out. Here’s the opening paragraph:
This appeal arises from a First Amendment challenge to Virginia’s Personal Information Privacy Act, Va. Code §§ 59.1–442 to –444. Section 59.1–443.2 prohibits “[i]ntentionally communicat[ing] another individual’s social security number to the general public.” The district court found this section unconstitutional as applied to an advocacy website that criticized Virginia’s release of private information and showed publicly available Virginia land records containing unredacted Social Security numbers (“SSNs”). Later, the court entered a permanent injunction barring Virginia from punishing the republication of “publicly obtainable documents containing unredacted SSNs of Virginia legislators, Virginia Executive Officers or Clerks of Court as part as [sic] an effort to reform Virginia law and practice respecting the publication of SSNs online.” Both decisions are challenged on appeal. For the reasons that follow, we affirm in part and reverse in part.

There’s a Washington Post article summarizing the case.

I just read the opinion. This probably isn’t very helpful, but here are some quickly-assembled thoughts nonetheless.

The first thing to know is that Judge Bolton’s opinion is based on a preemption theory. That is, her view is that some of the sections of the state law are preempted by federal immigration law. The gist of preemption that under the Supremacy Clause, federal law trumps an inconsistent state law. Unfortunately, I can’t say very much about whether Judge Bolton’s opinion is persuasive or not because I’m not sufficiently familiar with preemption law or the details of federal law at issue. 

Specifically, Judge Bolton construes some of the vague provisions of the Arizona law; concludes that those sections are inconsistent with the general concerns underlying the federal immigration policy; and then she blocks those sections from going into effect. The key precedent Judge Bolton relies on — and thus the place to start if you want to know more — is Hines v. Davidowitz, 312 U.S. 52 (1941).

Given that parts of Judge Bolton’s opinions are based on a statutory interpretation that the lawyers for Arizona themselves rejected, I would guess there is a possibility that this opinion may ultimately lead the Arizona legislature to pass amendments to the Arizona law clarifying some of the sections. But that’s just a guess. 

Anyway, sorry I can’t be more helpful in evaluating the correctness of the decision: You’d really need to know a lot more about preemption law and federal immigration law to speak on that with any authority.

A quick response to Jim on BirthdayCardGate: Whether we should be disturbed by a mass e-mail sent by the Obama campaign has no relationship I can identify to the particular means by which Jim’s voluntary contact with the Obama campaign led to his name being added to the campaign e-mail list. As a result, my reaction to the e-mail remains the same. 

In addition, I note that the campaign website has an information page with the following entry:
Opting out and modifying information:

Subscribers to our e-mail list may terminate their subscriptions via a link at the bottom of each email sent from BarackObama.com.

Jim initially claimed that the e-mail he received was from Michelle Obama, not (as he now acknowledges) from the Obama campaign. But assuming the e-mail was actually from the campaign, and therefore has the link at the bottom allowing him to unsubscribe, I recommend to Jim that he click on the link. 

UPDATE: A reader who received the same e-mail confirms that it was sent from the address “info@barackobama.com,” and that the bottom of the e-mail contains the following message:
Paid for by Organizing for America, a project of the Democratic National Committee — 430 South Capitol Street SE, Washington, D.C. 20003. This communication is not authorized by any candidate or candidate’s committee.

This email was sent to: [address]

Change Email Address | Unsubscribe

This morning, U.S. District Court Judge Susan Bolton issued a preliminary injunction blocking key provisions of Arizona’s immigration law from taking effect on the grounds that these provisions are likely to be preempted by federal law.  The Arizona Republic reports:

Key parts of Senate Bill 1070 that will not go into effect Thursday:

•  The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion they’re in the country illegally.

•  The portion that creates a crime of failure to apply for or carry “alien-registration papers.”

•  The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work. (This does not include the section on day laborers.)

•  The portion that allows for a warrantless arrest of a person where there is probable cause to believe they have committed a public offense that makes them removable from the United States.

The ruling says that law enforcement still must enforce federal immigration laws to the fullest extent of the law when SB 1070 goes into effect at 12:01 a.m. Thursday. Individuals will still be able to sue an agency if they adopt a policy that restricts such enforcement.

Bolton did not halt the part of the law that creates misdemeanors crimes for harboring and transporting illegal immigrants.

The order is here.  NYT coverage here.

In a post below, Orin Kerr expresses his opinion that he does not find the Obama birthday email even “a bit creepy.” While certainly entitled to his own opinion, he is not entitled to his own facts. 

Orin writes:

As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about). . . . 

Given that this apparently was . . . only sent to people who voluntarily signed up to receive such things, I have trouble understanding why Jim sees it as “emulating the trappings” of a dictatorship.

In neither post did I state or imply that I had signed up to be on the Obama campaign’s email list. While working on a post for the Volokh Conspiracy, as part of my due diligence I had emailed the Obama campaign with specific questions about Obama’s position on what I was writing about. I never signed up to be on any Obama related email list. Nor did I present myself as a supporter in my email to the campaign. 

If my experience can be generalized–and maybe it can’t–this Obama email list is comprised of people who contacted the campaign in any capacity, not just supporters. It is certainly not just for people who signed up to be on a list. 

Orin is mistaken on the factual basis for his opinion. 

Would having the facts right change his opinion? Frankly, I don’t know.

In his post below, Jim suggests that the e-mail he received from the Obama campaign about celebrating the President’s birthday is “a bit creepy”:

[A]sking millions of Americans to sign a birthday card for the President suggests a tone-deafness about the cult of personality. If we lived in a dictatorship, getting millions of subjects to celebrate the Dear Leader’s birthday would be routine, but in a free republic this appeal to get millions of citizens to celebrate a current president’s birthday strikes a discordant note to my ear.

No, I am not saying we are in a dictatorship; I am saying that because we are not, we should not be emulating the trappings characteristic of that fundamentally different sort of regime. Nor do I think this is particularly ominous, just a very small step in the wrong direction.

My reaction is quite different. As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about). Politicians and political campaigns maintain lists of supporters for lots of reasons, but I think it’s generally understood that the contents of the communications are pretty light fare. They’re messages to keep supporters engaged and help them feel involved, presumably on the theory that supporters who feel engaged and involved are more likely to give money. I assume that was the idea behind the e-mail; it gives supporters a (rather cheesy) opportunity to feel close to the President. Given that this apparently was just a campaign e-mail, only sent to people who voluntarily signed up to receive such things, I have trouble understanding why Jim sees it as “emulating the trappings” of a dictatorship.

I received the following email from First Lady Michelle Obama:

SUBJECT: Will you sign Barack’s birthday card, James?

James –

Every year, our family tries to come up with a fun way to wish Barack a happy birthday.

And this August 4th, when he turns 49, I have something new in mind.

This has been a big — and hectic — year for him. After signing the Affordable Care Act and Wall Street reform into law — and completing his first year as president — I think it’s safe to say we will remember it for a long time.

And I know full well how much he credits this movement, and the work of supporters like you, for the change that we’ve accomplished.

So I’m putting together a birthday card that I would like you to sign. Together with other Organizing for America supporters — and me, Malia, Sasha, and Bo — we’ll wish him a happy birthday and let him know that we’re ready to take on the year ahead alongside him.

Will you wish Barack a happy birthday with me?

This year also brought a lot of surprises — some good and some bad.

Supporters like you have helped him make the best of it — by contacting Congress to help push stalled legislation forward, by re-engaging supporters in the political process, by giving back with service projects across the country, and so much more.

And while we can’t know what the coming year will bring, all of us, working together, will continue pushing forward for change.

Will you help make this a memorable birthday for Barack and wish him a happy 49th?

http://my.barackobama.com/birthday

Thanks so much,

Michelle Obama

I find it hard to say precisely why I find this email a bit creepy. At one level this seems innocuous enough–and it is definitely not a big thing. 

At another level, asking millions of Americans to sign a birthday card for the President suggests a tone-deafness about the cult of personality. If we lived in a dictatorship, getting millions of subjects to celebrate the Dear Leader’s birthday would be routine, but in a free republic this appeal to get millions of citizens to celebrate a current president’s birthday strikes a discordant note to my ear. 

No, I am not saying we are in a dictatorship; I am saying that because we are not, we should not be emulating the trappings characteristic of that fundamentally different sort of regime. Nor do I think this is particularly ominous, just a very small step in the wrong direction.

Last, it seems strange for Michelle Obama to be trying to get us to sign Barack’s birthday card when she is scheduled to be in Spain with [at least one of] her daughters during the President’s birthday.

UPDATE: In a subsequent post, Orin Kerr expresses his opinion that he does not find this email even “a bit creepy.” While certainly entitled to his own opinion, he is not entitled to his own facts. Orin writes: 

As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about). 

In neither post did I state or imply that I had signed up to be on the Obama campaign’s email list. While working on a post for the Volokh Conspiracy, as part of my due diligence, I had emailed the Obama campaign with specific questions about Obama’s position on what I was writing about. I never signed up to be on any Obama related email list. Nor did I present myself as a supporter in my email to the campaign. 

If my experience can be generalized–and maybe it can’t–this Obama email list is comprised of people who contacted the campaign in any capacity, not just supporters. It is certainly not just for people who signed up to be on a list. 

Orin is mistaken on the factual basis for his opinion.

I’m going to be a visiting professor at Penn in the Spring 2011 semester, and I wanted to get the word out about course scheduling changes in light of it (with my apologies for using the blog for such a limited audience).

For GW students, I will be teaching my Computer Crime Law class (previously scheduled in the Spring ’11 semester) in the fall of 2010 instead: It will be offered Monday, Tuesday, and Thursday from 11 to 11:55 (not Tuesday, Wednesday, and Thursday, as is reported incorrectly here).  I will not be teaching Criminal Procedure this coming academic year, for which I apologize.

For Penn students, I will be teaching both Criminal Procedure (Investigations) and Computer Crime Law in the Spring 2011 semester.  The details haven’t been figured out yet as to what dates and times, though.

Inception is a great movie. Perhaps one of the greatest of all time. You should see it without reading reviews, or learning anything about the film beforehand. For those of you who have seen it, some thoughts about various meanings are below the fold.

First some resources: Six Interpretations and Five Plot Holes, by Peter Hall. Cinema Blend has a helpful FAQ and glossary. TechEBlog provides a useful graphic of the dream levels. To keep things straight, let’s adopt their terminology of level 1 (“reality”; takes place in Paris, Mombassa, the airplane cabin), level 2 (dream of the kidnapping of Fischer), level 3 (hotel dream), level 4 (ice world dream), and level 5 (“limbo,” perhaps; Cobb & Mal’s beach city, and Saito’s oriental mansion).

As the above sources details, there are some plot holes which seems difficult to resolve. There are two meta-explanations: One, the movie-makers made mistakes. Two, the incongruities are clues to what’s really happening. Namely that everything in the movie is a dream.

The all-dream theory is well-developed in this essay by Devin Faraci of C.H.U.D., comparing Inception to Fellini’s 8 ½, a film about making a film. It’s not at all a cop-out, in the sense of Fifties-era Superman comics in which Superman marries Lois, but then the whole episode turns out to be Lois’s dream.  In support of the all-dream theory, Faraci points out that the chase scene in Mombassa (which is supposed to be at level 1, Reality), ends with Cobb being trapped between two walls that are closing in (classic anxiety dream), and then rescued by Saito, who just happens to pull up in a car at the right moment. Further thoughts on Inception as a movie about movie-making here, by Maria Bustillos. 

When you think about it, the whole Mombassa chase sequence (which reminded me of the chase sequence at the beginning of Disney’s Aladdin) is quite unrealistic, although it’s the kind of chase sequence we accept as “real” in movies. And there’s plenty of other stuff on Reality level 1 that, on second thought, doesn’t seem very plausible in real life. For example, Saito buys a transpacific airline in a few days. Really? Buying an international airline usually takes longer than that.

I differ from Faraci in his conclusion that the final scene proves that Cobb is still dreaming. The ending is deliberately ambiguous. We don’t know if the top will fall. While it’s true that Cobb’s children are playing in the same place, and in the same posture as when Cobb last saw them, and wearing the same clothes, they are wearing different shoes, and they are played by different actors. Further, Cobb wears a wedding ring when dreaming, but not when in level 1, and at the end of the movie, he has no wedding ring. However, none of these facts are decisive proof that level 1 itself is not a dream. They’re just proof that the movie ends on level 1.

Now if the whole film is a dream, one might say that Cobb has just decided to stay in dreamspace, hanging out with his children and father. The story arc is about Cobb progressing from being tortured by doubts about what is real, to being content with being happy and not worrying about reality. One might theorize that Mal was correct in discerning that level 1 is still a dream; she escaped, and the movie concludes with Cobb achieving peace about his decision to stay behind in dreamworld level 1.

Fair enough. But here’s an alternate understanding. Cobb, the guy whose dream we’re watching, is not in true Reality (level 0) a professional dreamer who can get into other people’s dreams. He’s just a regular guy having a very elaborate dream. And it happens to be a dream in which Cobb learns some important lessons about himself, and Reality. When Fischer wakes up on the plane, Fischer knows that there was not really a pinwheel in his father’s bedside safe. But finding the dream pinwheel has helped Fischer grow emotionally, and make progress in his own real life. There is an obvious parallel between Fischer’s cathartic confrontation with his personal demons on level 4 (ice world) and Cobb’s confrontations on level 5 (getting rid of Mal, and—with Saito—remembering to come back to Reality). A more subtle point is that Cobb is continuing this process of discovery, of personal reintegration, when he returns to level 1; there, the barriers that have kept him apart from his children disappear, and he reintegrates into his family. When he wakes up, eventually, into level 0, he will have all the insights he gained from dream levels 1–5.

Maybe real-life Cobb has been feeling bad because he wife walked out on him. Or maybe his real-life anxieties have nothing to do with a spouse. Someone named “Mal” can represent all kinds of pernicious influences or obstacles. Is Ariadne (who in Greek mythology gave Theseus the string which he used to escape the Minotaur’s maze, and who in Inception creates the maze for Fischer which will lead him out of his own mental prison) a projection of the part of Cobb’s personality that he needs to help him escape from Mal? Is she his real-life psychotherapist?

The real answer is that we don’t know the meta-story around the movie, but we do know that the movie invites us into the creative process of creating the meta-story, and there is not necessarily only one true answer.

One can reduce Inception to a didactic 1969-style moral like “There’s no reality. Just whatever makes you happy.” And it’s also true that no-one can fully answer the movie’s “Am I dreaming?” question, namely “How did I get here?” You may have scattered memories from when you were a baby, but those memories could just indicate a very long dream. However, blithe unconcern for reality vs. unreality is not entirely consistent with Cobb’s realization that Mal and he needed to escape from their fifty-year excursion in level 5.

More broadly, Inception plants many diverse ideas in the audience—multiple ideas for every person who sees it. Like the characters in the airplane sequence, when we watch the movie we experience a shared conscious dream. Like almost all performance artworks, Inception is a deception; it is an unreal artistic construct which we choose to believe for a while, in order to find a deeper understanding of reality.

Inception is not only about dreaming, but also an optimistic invitation to awaken to the creative possibilities of sharing imaginations—as some people do when participating in the creation of a film, and as we all can do with our diverse talents when we share our dreams with others, and they share ours.

The Competitive Enterprise Institute has organized a timely letter opposing the Comprehensive Alcohol Regulatory Effectiveness (CARE) Act.  The aim of the law is to largely overturn Granholm v. Heald by making it easier for states to sustain discriminatory barriers to interstate commerce by shifting the burden of proof to challenges to discriminatory laws.  It would also basically eliminate Pike “undue burden” challenges to alcohol regulation.

Earlier this year, I blogged a lot about the circuit split that has emerged on a critical question of Fourth Amendment law: Whether the good-faith exception to the Fourth Amendment applies when a police officer conducts a search that was considered lawful at the time it occurred that is later recognized as unlawful before the conviction becomes final. As regular readers might recall, I filed a pro bono cert petition in United States v. McCane to try to get the Supreme Court to take the issue, and after that petition was denied, I wrote a series of blog posts on why I think the good faith exception does not apply in that setting.

Now that I’m back blogging, I thought I would flag an important development: After opposing certiorari in McCane, the DOJ recently changed course and filed its own petition for certiorari seeking review of the same issue in the case that created the direct circuit split with McCane, United States v. Gonzalez. You can read DOJ’s petition for certiorari in Gonzalez here. DOJ’s new position makes it very likely that the Supreme Court will agree to hear this issue in the upcoming Term.

I’m presently writing a new law review article on the question, tentatively titled Good Faith, New Law, and the Scope of the Exclusionary Rule. I will post the draft as soon as it’s complete, which should be in about 2 or 3 weeks.

Julian Sanchez and I just recorded a dialogue on bloggingheadsTV about the wikileaks affair and “Top Secret America.”

In a recent post, Orin (relying on an argument by H. Lorne Carmichael) cites faculty self-selection as an argument for tenure:

The basic idea is that tenure is a necessary evil because faculties vote on who to let join them: If professors know that their own jobs will be in jeopardy if they hire someone better than themselves, they will make sure that they only hire incompetent new people. 

This is indeed a much stronger argument for tenure than the usual academic freedom rationale, which I criticized here. Still, I’m not persuaded.

Even if we need to give faculty some job security to get them to avoid hiring incompetents, lifetime tenure strikes me as overkill. Guaranteed longterm contracts of, say, ten years should greatly reduce the perverse incentives identified by Carmichael without giving people a lifetime sinecure. Furthermore, faculty incentives don’t all cut one way. A faculty that hires mostly incompetents will quickly undercut its prestige, and most academics are very prestige-conscious. Think about how badly many faculty at lower-ranked institutions want to move up to more prestigious ones.

In addition, I’m not convinced that the system of faculty self-selection is actually the best available option. In most industries, hiring labor is a management responsibility, in part for the kinds of reasons Carmichael identifies: we don’t want workers voting to hire incompetents who will make the incumbents look good by comparison. In academia, new faculty are hired by incumbents because the latter generally have more expertise on the relevant subject than administrators do. However, incumbent faculty are not the only possible source of relevant expertise. Administrators could also draw on the knowledge of relevant experts at other institutions, including faculty at other schools, scholars in government and industry, and so on. We already do this to some extent. For example, tenure committees routinely solicit reports about the candidate from outside reviewers. 

Some combination of long-term contracts and increased reliance on outside expertise should enable universities to eliminate tenure without incentivizing academics to hire incompetents. The system wouldn’t be perfect. But it would likely be a lot less flawed than the perverse incentives of tenure itself.