The $26 billion mortgage settlement announced yesterday is bad news for “bond investors including pension funds, according to Pacific Investment Management Co.’s Scott Simon,” notes Bloomberg News.  He says that the settlement rips off innocent investors and pension funds in order to reduce the banks’ costs of bailing out delinquent mortgage borrowers and others.  (As we noted earlier, the Justice Department, state attorneys general, and the biggest banks reached an agreement to provide $26 billion to delinquent mortgage borrowers and others, such as left-wing housing counseling similar to ACORN — in what the New York Post calls a “deadbeat bailout”).  As Simon notes,

“They’re using other people’s money to pay for a ton of this. Pension funds, 401(k)s and mutual funds are going to pick up a lot of the load.”

Asset managers are frustrated with the deal because, in addition to the debt the banks own, it gives credit to the lenders for changes to loans they hold no interest in and oversee for investors. That “treats people’s 401(k)s and pensions,” which hold mortgage securities, “like perpetrators as opposed to victims,” Simon said. The deal comes after all 50 states announced a probe into foreclosures in 2010 . . . costing bondholders as liquidations of bad debt were delayed.

“Think about this, you tell your kid, ‘You did something bad, I’m going to fine you $10, but if you can steal $22 from your mom, you can pay me with that,’ ” Simon said yesterday. . .

Laurie Goodman . . . who has advocated for mortgage forgiveness in testimony to Congress, joined him in criticizing the agreement yesterday. . .“There is a difference between principal reductions and giving banks credit for spending others’ people money.”

As we noted earlier, by ripping off mortgage investors, this deal will make investing in mortgages more risky, which will in turn drive up interest rates that homebuyers have to pay in the future.  This deal only covers borrowers at certain banks, not those borrowers who mortgages are held by the government-sponsored mortgage giants Fannie Mae and Freddie Mac, which (unlike the private banks) have never repaid their bailout, and are currently still being bailed out at an ever-increasing tab of $170 billion.

This deal is not the only way that federal and state officials are messing up the housing market.  The Obama administration is forcing banks to make risky loans (in the name of “fair lending”), thus planting the seeds of a future financial crisis. The Justice Department is suing banks that refuse to do so, and forcing them both to award preferential loans based on race, and to cough up money in “settlements,” some of which goes to left-wing “community” groups.

The Obama administration recently launched a multibillion dollar bailout for speculators. Bloomberg News reported that the administration is vastly expanding aid for certain “delinquent homeowners,” paying banks up to 63 cents for every dollar in principal they write off for such homeowners.  Speculators will benefit, because bailout recipients don’t even have to live in a house to get its mortgage principal reduced at taxpayer expense.

Countries across the world have turned to democracy in recent decades. There are still a few monarchies here and there, and plenty of dictatorships. Cuba and North Korea are even keeping the last dying embers of communism alight. But more and more, democracy is seen as the way to go.

One of the first things a new democracy needs is a constitution. One of a constitution’s jobs is to establish the government’s structure — how the executive, legislative, and judicial branches are composed, what their powers are (and aren’t!), and a few rules of procedure.

The U.S. Constitution is a model of simplicity. You can read the whole thing in under a half hour. And that is the secret of its success. It doesn’t need to outline the specifics of agricultural or trade policy. That’s Congress’ job.

The EU’s de facto constitution runs well over 200 pages. Where the U.S. Constitution paints with a broad brush, the European Union fills in every last detail. Most countries, including the U.S., are turning to this top-down model and rejecting the Constitution’s more bottom-up approach.

The thinking goes, “How can something so simple be effective when the modern world is such a complicated place? The 21st century is very different from the 18th century.”

Good question. The answer is that those extra layers of complexity are precisely why a bottom-up approach is more important than ever. Top-down governance is hard enough even in a simple agrarian economy. It is impossible in a world like ours. Too many variables. The more rules there are, the easier they are to subvert.

Transitioning democratic countries regularly used the U.S. Constitution as a model when drafting their own constitutions. But that’s happening less and less, according to a thought-provoking Investor’s Business Daily editorial.

The reason is a shift in the intellectual climate. Negative rights are out of fashion now. Positive rights are all the rage. Negative rights are the kind that pervade the U.S. Constitution: don’t hit other people, don’t take their stuff, don’t break your contracts. Don’t, don’t don’t.

Positive rights are much less dour. And they are all over most new constitutions. You have the right to health care, or a job with six weeks vacation, and so on. People think of new positive rights all the time, too. There is a push in some countries to give people the legal right to Internet access. Sounds great. Who could be against that?

I can. Positive rights do sound nice, but in practice they are profoundly illiberal. That is because positive rights often contradict each other. If I break a bone and my doctor has a legal right to be on vacation, one of us has to have our positive rights violated. That means someone has to decide. Someone with a lot of power. Life and death, in some cases. A government with the power to make those kinds of decisions is very powerful indeed. Positive rights systems require large, powerful governments. Rights violations are both frequent and arbitary.

Negative rights have no such conflicts. That’s a big reason why the U.S. Constitution is so simply constructed. In fact, most of it isn’t even about granting this power or that to government. Most of that is contained in Article I, Section 8. The majority of the document is about placing strict limits on those powers. When the people are left alone, they largely prosper. Let them build from the bottom up. The view from the top on down is too distant to catch the necessary details.

In the law, as in so many other areas, simplicity is beautiful. As democracy continues to march across the globe, newly forming governments should keep that in mind.

“It launched a hundred ‘anti-bullying’ initiatives at all levels of government, but much of what you think you know about” the Tyler Clementi case “is probably wrong,” notes legal commentator Walter Olson at Overlawyered, the world’s oldest law blog. Andrew Sullivan discusses this as well, linking to Ian Parker’s article in The New Yorker.

We wrote earlier about how the current panic over bullying is leading to attacks on free speech, political debate, and free association in the schools; political pandering; dishonest stretching of existing federal laws by federal officials; and violations of basic principles of federalism.

Reason’s Jacob Sullum writes about New Jersey’s massively-long “Anti-Bullying Bill of Rights,” enacted after Clementi’s suicide at New Jersey’s Rutgers University, and how it infringes on free speech and imposes illegal unfunded mandates. When New Jersey passed this incredibly complicated anti-bullying law, which contains 18 pages of “required components,” that gave a huge boost to a burgeoning “anti-bullying” industry that seeks to define bullying as broadly as possible (to include things like “eye-rolling,” or always associating with the same group of friends) in order to create demand for its services. Hundreds of New Jersey schools “snapped up a $1,295 package put together by a consulting firm that includes a 100-page manual.”

Rod Dreher sees a lesson from the Clementi case about jumping to conclusions:

I too thought that Clementi had been outed after Ravi filmed him having sex. As Parker shows, Clementi was not closeted, and he wasn’t filmed having sex. And yes, Dharun Ravi [who is being prosecuted for hate crimes over the filming that allegedly caused Clementi's suicide] is an ass. But he is not facing criminal trial for being an ass. This is what moral panic does. . .It is hard for me to be fair [to the defendant] in these particular cases, but it is necessary to fight against my own instincts in this case and in every case. You too.

The Obama administration’s StopBullying.gov website defines bullying incredibly broadly in ways that conflict with freedom of speech and common sense. It defines “teasing” as a form of “bullying,” and “rude” or “hurtful” “text messages” as “cyberbullying.” Since “creating web sites” that “make fun of others” also is deemed “cyberbullying,” conservative websites that poke fun at the president are presumably guilty of cyberbullying under this strange definition. (Law professors like UCLA’s Eugene Volokh have criticized bills by liberal lawmakers like Congresswoman Linda Sanchez (D-Calif.) that would ban some criticism of politicians as cyberbullying.)

Anti-bullying regulations can backfire and have bad consequences for child development. As a school official noted after passage of New Jersey’s sweeping anti-bullying law, “The anti-bullying law also may not be appropriate for our youngest students, such as kindergartners who are just learning how to socialize with their peers. Previously, name-calling or shoving on the playground could be handled on the spot as a teachable moment, with the teacher reinforcing the appropriate behavior. That’s no longer the case. Now it has to be documented, reviewed and resolved by everyone from the teacher to the anti-bullying specialist, principal, superintendent and local board of education.”

Recently retired Justice John Paul Stevens, who became the leader of the Supreme Court’s liberal bloc in his later years on the Court, complained recently about the 1964 Civil Rights Act, which he claimed was “poorly-considered” because its text literally forbids all racial discrimination — including against white people — and contains no exceptions. Justice Ruth Bader Ginsburg, a sitting Supreme Court Justice appointed by Bill Clinton, recently advised Egypt not to model its constitution on the U.S. Constitution, but rather on documents like the South African Constitution that provide less protection for free speech and civil liberties. “I would not look to the US Constitution if I were drafting a Constitution in the year 2012,” she said.

Justice Stevens’ remarks reflect his discontent with the fact that whites occasionally win racial discrimination cases under the Constitution and civil-rights laws. The Supreme Court initially held that racial discrimination of all kinds was prohibited by the 1964 Civil Rights Act in its unanimous 1976 decision in the McDonald case, which ruled in favor of whites who had been fired; but later on, the Court judicially created an exception to the statute in order to allow some discrimination against whites in its Weber decision, which admitted that creating such an exception contradicted the plain language of the Civil Rights Act, but claimed that doing so would lead to a more egalitarian society. Later, the Supreme Court extended this exception to uphold a college admissions policy that discriminated against both whites and Asians in the name of “diversity,” rejecting legal challenges under both the Constitution and the Civil Rights Act (in the Grutter case). However, over Justice Stevens’ objections, it struck down another college admissions policy that the Court viewed as using race too much and too mechanically (in the Gratz case), and it also invalidated racial discrimination against whites in voting, once again over Justice Stevens’ objections (in Rice v. Cayetano).

Although liberal scholars, like former Civil Rights Commissioner Mary Frances Berry, have recently argued that the civil-rights laws were not intended to protect white people, the courts have held that the Civil Rights Act was indeed intended to prohibit racial discrimination even against whites, and thus, whites who experience racial harassment or abuse are able to sue under the Civil Rights Act, as cases like Huckabay v. Moore and Bowen v. Missouri Department of Social Services illustrate. (Affirmative action is viewed as merely a limited exception to the ban on racial discrimination in areas such as hiring and promotion, and thus not a license for an employer to fire or racially harass its white employees.)

Justice Ginsburg says that American courts should look more to foreign court rulings and other countries’ laws in interpreting our own Constitution. But she herself does so only when it is ideologically convenient, ignoring foreign court rulings that limit lawsuits and punitive damages, and allow governments to restrict late-term abortions.

Moreover, for the Supreme Court to rely on “international opinion” to decide cases — as liberal Justices do when it is convenient — could set a dangerous precedent for civil liberties, since foreign legal systems and international lawyers are often hostile to free speech, religious freedom, and other basic civil liberties, and the right of homeowners to defend themselves against criminals by wielding a knife or gun in self-defense. The U.N. Human Rights Council says there is no human right to self-defense, and that, quite the contrary, international human rights norms require “very severe gun control.”

It’s April 2012. You are a conscientious congressional staffer who still takes seriously the need to be a steward of taxpayers’ money. (Yes, I know for a fact, there are more than a few of these folks around on Capitol Hill.) You are watching closely events surrounding an “omnibus” or “minibus” spending bill deemed even by conservative Republican members as “must-pass” because it funds the military as well as other parts of government.

Suddenly, you hear about an outrageous earmark about to be slipped into the bill that would enrich a Fortune 500 company. You know how these things work; once the bill hits the floor, it’s very hard to excise one provision. So you decide to alert a network of fiscal watchdogs you’ve met with over the years to wage an instant campaign against this piece of corporate welfare.

You have all the information in the e-mail and are about to hit “send.” But then you remember something from a briefing you attended a couple days ago. The subject was the STOCK (Stop Trading on Congressional Knowledge) Act – aimed at stopping “insider trading” by members and employees of Congress – that your boss and nearly every other member of Congress voted into law in February.

At the time, you didn’t think the law would affect you since the only trading you do is indirect, through your mutual funds and pension. You were surprised to learn, however, that you now have a broad “duty of confidentiality” that encompasses not just trading on “material, nonpublic information,” but disclosing information to those who might.

You sit back and think, “It is indeed possible that someone I send this to could buy stock in the company, or could short the company based on the coming outrage.” You stare at the computer screen wondering how virtually no one noticed how this law could have potentially criminalized an act of whistleblowing as abetting “insider trading.”

Such a scenario is almost certain if the House enacts anything similar to the STOCK Act that passed the Senate last week by a whopping 96-3 vote. House Majority Whip Eric Cantor told reporters on Friday that the House plans to vote on a similar measure next week, saying only that “we intend to strengthen” the Senate bill.

The bill gained steam after a series of revelations in conservative author Peter Schweizer’s best-selling book, Throw Them All Out, that pointed out that many members of Congress routinely trade individual stocks and options, sometimes after receiving sensitive information. (Though how “privileged” and “nonpublic” the economic data they had received actually was has been a subject of debate.) A “60 Minutes” report based on some of Schweizer’s findings propelled the issue into the spotlight, with President Obama calling on Congress in the State of the Union to ban “insider trading” among its members and staff.

But lost in the justifiable outrage about politicians’ perks is discussion about how provisions in the Senate bill would actually work. Like the Stop Online Piracy Act (SOPA), another bipartisan bill with aims that nearly everyone agreed on, the proverbial devil is in the details of the legislative language. In fact, if the STOCK Act were in effect, the campaign against SOPA might have failed, because communication between Congress and outside groups would have been severely curbed.

Among the most important things to know about the STOCK Act is that  by specifically applying “material, nonpublic information” rules that govern officers and directors of a corporation to Congress, the  bill would bar in many instances the disclosure of such information as well as trading on it. In a press release describing the House version of the STOCK Act they sponsored, House Rules Committee Ranking Member Louise Slaughter (D-N.Y.) and Rep. Tim Walz (D-Minn.) declare that the bill “amends House ethics rules to prohibit Members and their employees from disclosing any non-public information about any pending or prospective legislative action for investment purposes.” [emphasis added]

But members and staffers have no practical way of assuring that those to whom they spread information won’t use it “for investment purposes.” As a result, communication about important matters with outside groups may decrease markedly, and the very aim of transparency in government that was an impetus for this bill would be undermined. Slaughter, already a champion of curbing grassroots speech through her call for restoration of the Fairness Doctrine, has actually implied that cutting off communication could be one the results of the law.

In a “fact check” she released on an earlier version of her bill, Slaughter conceded a fact that is often misreported – that there is no congressional exemption from insider trading laws. “Just as anyone else, Members of Congress and staffers are subject to current insider trading laws,” she wrote, giving an example of a CEO telling a member about a product recall that has yet to be announced. If it can be proven that the member sold his or her stock based on this info, this action would be “illegal under current insider trading laws.”

The problem, Slaughter argued, is that “current insider trading laws do not apply to nonpublic information about current or upcoming congressional activity.” A big part of the reason for this, Slaughter acknowledged, is that “insider trading” prohibitions stem from the “duty of confidentiality” in securities laws imposed on executives, directors, and others who deal with information regarding a publicly traded company.

By contrast, she noted, “The work of Congress depends on open lines of communication between Members and constituents and organizations.” Therefore, she concluded, ”we must create a broader prohibition that does not require a duty of confidentiality.”

Yet the Senate bill (S. 2038) would specifically impose a “duty of confidentiality” on members of Congress and their staffs. Section 4(g) of the Senate bill states that “each Member of Congress or employee of Congress owes a duty arising from a relationship of trust and confidence to the Congress, the United States Government, and the citizens of the United States with respect to material, nonpublic information.” [emphasis added]

The term “confidence” in the context of securities law does not mean faith in a particular institution — indeed it would be difficult to legislate confidence in Congress or any branch of government — but rather keeping matters in confidence. And under the “duty of confidentiality” imposed with regard to publicly-traded companies, many have been prosecuted for sharing information as well as trading on it.

A so-called “tipper,” wrote attorney Nelson Ebaugh in the Texas Journal of Business Law, “is exposed to insider trading liability for simply communicating material, nonpublic information even if he did not personally use the information to trade in the company’s securities.” Ebaugh added that courts are split on whether a “personal benefit” is even required for guilt.

Ebaugh and other experts have argued that insider trading rules have been applied so broadly to such “tippers” of corporate information that they inhibit disclosure about corporate wrongdoing. If these rules were applied to information about upcoming congressional action, it would have serious, if not more severe, effects in muzzling whistleblowers.

In addition to the e-mail to activists from the beginning of this article, conference calls and off-the-record meetings with ideological activists, such as the famed “Wednesday meeting” created by Grover Norquist, could also be curtailed. In the corporate word, the Securities and Exchange Commission has cracked down on what it calls “selective disclosure” to analysts. As a result, under Regulation Full Disclosure, most public companies put information about conference calls on their web site and/or post the recorded call for all to hear.

Following this precedent, if the STOCK Act is passed, the SEC may require meetings and calls in which Congress members and staffers participate to be open to the public or not occur at all. The result would be less outflow of information from Congress and a less-informed public.

The exposes of Schweizer and others raise serious issues that about power and privilege need to be addressed. Sensible measures, such as prohibiting members and their spouses from participating in initial public offering (which is not in the STOCK Act) as well as more rapid disclosure of stock trades (which is), should be enacted. Unfortunately, the bulk of the STOCK Act bills currently before the House and Senate would muzzle much of the communication necessary for sunlight and reform.

Keeping quiet can seal your fate if you are a professor facing a campus kangaroo court after being wrongly accused of racial or sexual “harassment” based on your classroom speech. Civil-liberties advocates, like the Foundation for Individual Rights in Education, rely heavily on adverse publicity to save wrongly accused professors from being disciplined and fired by campus disciplinary bodies. They put to good use Justice Brandeis’s insight that publicity deters wrongdoing and helps cure social evils. As Brandeis once noted, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

But as the plight of Lawrence Connell at Widener University School of Law illustrates, if an accused professor speaks up, resulting in possible adverse publicity for his accusers, he increasingly risks being punished for “retaliation” against them, even when harassment charge is baseless. Connell was convicted of “retaliation” because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat to academic freedom, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal “retaliation.”

Last week, the Supreme Court handed down a decision in United States v. Jones. The Court held unanimously that because D.C. police entered a suspect’s car without a valid warrant or reasonable suspicion, they violated the suspect’s Fourth Amendment rights. But in the course of the decision, the Court raised — and ultimately failed to answer — a pivotal question about the future of privacy in America: Does the Fourth Amendment provide protection against warrantless electronic data collection and surveillance?

A great deal rests on the answer to this question. In order to fully enjoy the conveniences of the modern world, people today have voluntarily opted into GPS tracking on their mobile devices and in their vehicles. They’ve opted for E-Z Pass electronic tolling; for debit cards instead of cash; and for cloud web services instead of local storage. Most of us leave digital footprints, and we accept that it’s possible for someone to learn a lot about us from our footprints. But we’re also loathe to think that this information could be accessed by the government without probable cause.

The Supreme Court’s decision in U.S. v. Jones did not establish protections for electronically accessed information. The justices did, however, address today’s driving Fourth Amendment concerns, and they speculated on how recent jurisprudence will shape tomorrow’s digital age protections.

The Fourth Amendment

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The amendment is rooted in 18th century English common law. Several U.S. Supreme Court decisions (including U.S. v. Jones) cite the 1765 English case Entick v. Carrington as an influential antecedent to the 1787 amendment. The Court in Entick sided with a writer whose private papers had been seized by the King’s messengers. In the decision, presiding Justice Lord Camden famously wrote, “[t]he great end, for which men entered into society, was to secure their property.” 95 Eng. Rep. 807 K.B. 1765.

But over the next two centuries, Fourth Amendment protections in America expanded to cover more than “property” in the 18th century Entick sense of the word.

In the landmark Katz v. United States case of 1967, the Supreme Court held that the Fourth Amendment protected citizens’ “reasonable expectations of privacy.” In that case, FBI agents had attached a recording device to a public telephone booth in order to eavesdrop on Charles Katz, who used the phone booth to transmit illegal gambling wagers. The Court ruled that even though Katz was in public, and even though his personal property hadn’t been trespassed upon, the agents had violated Katz’ Fourth Amendment protections.

In the majority opinion, Justice Stewart wrote that the Fourth Amendment “protects people, not places.” By entering a phone booth alone and closing the door behind him, Katz had seemingly attempted to ensure that his phone call wasn’t heard by the public. Stewart wrote that the FBI’s surveillance had “violated the privacy upon which [Katz] justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment.” In a concurrence, Justice Harlan wrote:

The point is not that the booth is “accessible to the public” at other times, but that it is a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.

The Supreme Court went on to apply Justice Harlan’s “reasonable expectation [of privacy]” standard in several Fourth Amendment cases after the 1967 Katz decision. E.g. Bond v. United States (2000); California v. Ciraolo (1986); Smith v. Maryland (1979).

Background of United States v. Jones

Antoine Jones was a D.C. nightclub owner who became the target of a narcotics investigation in 2004. Police obtained a warrant permitting them to attach a GPS tracker to a Jeep owned by Antoine Jones’ wife. The warrant stipulated that the tracker must be installed within ten days and in the District of Columbia. But police didn’t install it until the eleventh day, and they did it while in the state of Maryland.

For the next four weeks, investigators used the GPS device to track Jones’ movements, amassing over 2,000 pages of locational data. The data connected Jones to the location of a stash house which was found to contain $850,000 in cash, 97 kilograms of cocaine, and one kilogram of cocaine base. Police then arrested Jones on narcotics charges.

Before trial, Jones’ lawyers filed a motion to suppress the data obtained by GPS tracker, noting that investigators’ warrant was not valid at the time of the GPS installation. The D.C. District Court granted the motion, excluding data obtained from the tracker while the Jeep was parked in Jones’ garage, while ruling that the rest of the tracking data was admissible at trial since Jones didn’t have a reasonable expectation of privacy while he was driving out in the open on public streets Jones was subsequently convicted of conspiracy to distribute and sentenced to life in prison.

United States v. Jones Decision

All nine justices agreed that the police had violated Antoine Jones’ Fourth Amendment protections. But the justices disagreed about why the GPS tracking was a Fourth Amendment violation.

In the majority opinion, Scalia presented the case in the framework of Entick v. Carrington—a simple case of government trespass on private property for the purpose of gathering information. The police had violated the Fourth Amendment when they trespassed into Jones’ Jeep in an attempt to collect evidence on him.  Therefore, Scalia argued, Jones’ expectation of privacy while driving on public streets was irrelevant. Scalia wrote:

It may be that [tracking someone] through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.

Scalia was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor.

Justice Alito agreed with the outcome, but disagreed with the majority’s rationale. In his concurring opnion, he argued that Jones could not be decided like Entick – that is, it couldn’t be framed as a physical search upon private property, since the trespassory act of installing a GPS did not in itself constitute a search within the meaning of the Fourth Amendment.

For Alito, the Jones case hinged on precisely what Scalia dismissed as irrelevant: whether Jones’ reasonable expectations of privacy were violated by police actions. Alito answered yes, in this instance, they were — but only because of the significant length of time (four weeks) during which Jones was electronically tracked. He wrote:

[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.

Alito was joined by Justices Ginsburg, Breyer, and Kagan.

Justice Sotomayor, writing a solo concurrence, agreed with the majority that Jones could be decided on the matter of police trespass. But she, like Alito, also believed that the GPS surveillance of Antoine Jones violated Jones’ reasonable expectations of privacy.

Sotomayor explained that GPS tracking allows the government to easily and inexpensively create a “precise, comprehensive record” of a person’s movements, which can then be stored and “efficiently mine[d]” for information for years to come. She explained:

The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.”  United States v. Cuevas-Perez, 640 F. 3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring).

Sotomayor was thus the lone justice who suggested that GPS tracking even in the short term may violate a person’s reasonable expectations of privacy because of the exhaustive nature of the technology itself.

But Sotomayor went further: She suggested that warrantless electronic surveillance of a person may violate the Fourth Amendment even if that person had voluntarily agreed to be tracked by a third party — say, his car security company or cell phone provider. Sotomayor argued that in the digital age, people share private information with third party companies but retain a reasonable expectation of privacy in that information. She wrote:

I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.

Sotomayor’s pro-privacy musings are hopefully an indication of the Court’s jurisprudence to come. But because the majority did not address these issues, the holding in Jones does almost nothing to fortify Fourth Amendment protections for the digital age concerns expressed by Sotomayor and Alito.

The Future of Fourth Amendment Protections

Post-Jones, the question remains: Does the Fourth Amendment provide protection against warrantless electronic data collection and surveillance? In 2010, the Sixth Circuit ruled in United States v. Warshak that government agents violated Steven Warshak’s Fourth Amendment rights when they compelled his ISP to turn over private emails without first obtaining a warrant. The Supreme Court, however, has yet to hear a case presenting that issue.

Until the Supreme Court expands Fourth Amendment protections to electronically transmitted and stored information — or until Congress sees fit to update the Electronic Communications Privacy Act – our information remains subject to discretionary government seizure.

Pundits have complained that the digital age has wrought the death of privacy — but perhaps, to paraphrase Justice Sotomayor, what we’re experiencing isn’t the death of privacy, but only the death of secrecy. As long as the Court acknowledges that secrecy is not a prerequisite for privacy, we may happily retain our constitutional right to privacy in the information-sharing years to come.

Syndicated columnist Steve Chapman is criticizing President Obama’s proposal in the State of the Union address to require students to attend high school longer before being allowed to leave. As I noted earlier, the president would like to require students to attend school until they are at least 18, and the National Education Association, one of his biggest supporters, wants to require students to stay in school until age 21.

As Chapman notes, “Most states now allow students to drop out at 16 or 17.” The reason for this is that while most students benefit greatly from staying in high school, “the youngsters who are most likely to drop out are the ones who are least likely to learn if they stay. If they are 1) struggling to pass, 2) unwilling to apply themselves, 3) chronically tardy and absent, or 4) simply not very bright, they won’t learn much from being [in] a classroom—for two extra years.” As Chapman points out, experts are skeptical of Obama’s proposal (skepticism echoed by analysts quoted in the Washington Examiner):

James Heckman, a Nobel laureate economist at the University of Chicago who specializes in education, is skeptical of the proposal. At the college level, he told me, “The returns to people who are not very able or not very motivated are typically quite low.” There is evidence that kids may get some benefit from being required to stay in high school until 16 instead of 15, he says, but “it’s a weak reed to lean on.”

Let’s also not forget that the highest dropout rates are in the worst schools. Even the kids who want an education often graduate from these schools barely able to read. Where does Obama get the idea that the reluctant students, compelled to remain, will reap a rich harvest of learning?

It might be argued that even if there is no benefit from keeping these students around till they turn 18, there can’t be any harm. But think again.

The presence of disruptive, unmotivated kids in a class is a drain on teachers, a distraction to other students, and a daily obstacle to learning. One of the best things you can do for students who want to do the right thing is to remove those who would rather goof off or make trouble.

It’s not clear that laws like this will even work. A 2010 Johns Hopkins University study found that when six states raised the mandatory attendance age, three saw no increase in graduation rates—and one saw a decline. . .

If you want to keep unwilling students in school, you can spend money on truancy enforcement, which means taking money away from the willing students. It would be more rational to use the funds on education improvements so more kids will choose to stay.

A private company—or a private school—whose customers are fleeing has to come up with ways to keep them around. In Obama’s public sector, there is a quicker solution: Lock the exits.

As I noted earlier, requiring schools to warehouse increasing numbers of would-be dropouts could harm school discipline, and result in increased disorder and violence in inner-city schools with high crime and dropout rates. (The Obama administration has also undermined school discipline in some school systems by interfering with their ability to discipline even violent students; it has investigated school districts, and threatened them with lawsuits and the cut-off of federal funds, because their suspension rates did not satisfy a racial quota.  Former educator Edmund Janko explains here how he used to discipline white students more than black students in order to avoid a discrimination investigation by the Education Department’s Office for Civil Rights (where I used to work.) Janko would suspend whites for offenses that earned black students only a reprimand. That way, he could meet an informal racial quota in school suspensions. The Seventh Circuit Court of Appeals says such racial quotas are unconstitutional. As I explained, the Obama administration is relying on an interpretation of federal civil-rights laws that appears to conflict with the Supreme Court’s Alexander v. Sandoval decision.)

In his State of the Union address, the president also decried skyrocketing college tuition. But as I explained earlier, Obama administration policies, and recent Education Department rules, have helped drive up college tuition and accelerate cost increases at previously-inexpensive colleges. Thus, Obama helped cause the very college tuition increases that he complained about in his speech.

The Chronicle of Higher Education reports that a team of eight law firms have just “sued a dozen more law schools across the country, accusing them of luring students with inflated job-placement and salary statistics and leaving graduates ‘burdened with debt and with limited job prospects.’ The lawyers . . . said they planned to file 20 to 25 new lawsuits every few months . . . the lawsuits had been filed on behalf of a total of 51 graduates, and each suit was seeking class-action status. The targets of the latest round of lawsuits” include  “Brooklyn Law School,” “Chicago-Kent College of Law,” “DePaul University College of Law,” “Golden Gate University School of Law,” “Hofstra Law School,” “University of San Francisco School of Law,” “Widener University School of Law,” and several others. As the Chronicle notes, “Disgruntled law-school graduates who can’t find jobs are increasingly taking their complaints to court, asserting that the schools duped them into enrolling with misleading statistics about their chances of landing well-paying jobs when they get out. Last year similar lawsuits were filed against New York Law School, Thomas M. Cooley Law School, and Thomas Jefferson School of Law.”

As I noted earlier, much of what law schools teach their students is useless drivel, and law schools routinely exaggerate their students’ job prospects. Accordingly, there is no reason to require people to attend law school before sitting for the bar exam. As law professor Paul Campos notes, legal education is often a rip-off, since the typical law professor has little real-world experience practicing law, and “knows nothing about being a lawyer.” But since most states require people to attend law school before sitting for the bar exam, law schools have been able to increase tuition by nearly 1,000 percent since 1960 in real terms. For its part, the Obama Education Department has implemented policies that encourage colleges to jack up tuition and charge students even more, even as college students are learning less and less.

Only in Bizarro World can you claim someone is your attorney — and thus shielded by attorney work-product privilege — and then insist in the very next breath that they never represented you. But that is what the Obama administration and Supreme Court Justice Elena Kagan are doing. The Obama administration refuses to release its communications with Kagan about health care litigation back when she was the administration’s Solicitor General, on the grounds that they are covered by attorney work-product protection. Yet, contradictorily, it and Kagan insist that she never acted as the administration’s lawyer in the matter, and thus doesn’t need to recuse herself from hearing the constitutional challenges to Obamacare that will be decided by the Supreme Court this year.

Law Professor Ronald Rotunda, the co-author of a leading constitutional law treatise, says that Kagan should have recused herself from hearing the case based on the federal statute, 28 U.S.C. 455(b)(3), that forbids former government attorneys like Kagan from being involved in cases they earlier were consulted on, and the Judicial Conference’s ethical guidance for federal judges. As he notes:

[Commentators have been] calling on Justice Elena Kagan to disqualify herself in the ObamaCare litigation because of her role, as Solicitor General, in preparing its constitutional defense. These calls have intensified with the release of recent emails. Justice Kagan’s supporters respond that she testified in her confirmation hearings that she had nothing to do with ObamaCare

First, her phraseology was much more precise. She said she would only recuse herself from any case in which she “officially formally approved something,” or “served as counsel of record” or “played any substantial role.” But the statute requires disqualification if Kagan, as a federal employee (she was the former Solicitor General) “participated” as an “adviser” on a matter, even if she did not give any formal advice. She also must disqualify herself if her impartiality might reasonably be questioned.

In response to a Freedom of Information (FOIA) request, the Obama Administration has turned over some emails but it refuses to turn over many others because, it says, these emails are “protected by the attorney work product doctrine.” That doctrine, the DOJ affidavit explains, covers discussion by “OSG” (Office of Solicitor General) lawyers about “legal issues, arguments, and strategy concerning anticipated” litigation over ObamaCare. So, the DOJ is simultaneously claiming that it completely walled off Kagan from any discussions involving the constitutional defense of ObamaCare, while admitting that Kagan was participating in emails discussing “legal issues, arguments, and strategy concerning” the anticipated ObamaCare litigation.

In March of 2010, there are a series of emails to or from Kagan; the subject line of all of them is “Health care litigation meeting.” The DOJ refused to disclose these emails because they discuss legal arguments for the “expected [health care] litigation.” If Kagan hermetically sealed herself from discussions on shaping defenses for ObamaCare litigation, why is she repeatedly sending and receiving emails shaping defenses for ObamaCare litigation? The Government refuses to release these emails, on grounds of a litigation privilege, while claiming that it erected such a solid wall around Kagan that she never would send or receive such emails. This wall must have more holes than Swiss cheese. If we can read theses emails, we will learn if the legal theory developed in those meetings is the legal theory that Kagan adopts when she rules on the case.

A week after the president announced her nomination to the Supreme Court, a DOJ press officer emailed the Deputy Solicitor General and asked if Kagan had been involved in the preparations for health care litigation. Notwithstanding these earlier emails, he responded, a minute later: “No she never has been involved in any of it. I’ve run it for the Office, and have never discussed the issues with her one bit.” A few minutes later, he forwarded that email to Kagan.

One would think, if Kagan’s Deputy was correct, that Kagan would simply say, “of course,” or, perhaps nothing. But that is not what happened. Less than two minutes later, Kagan wrote: “This needs to be coordinated. Tracy [the DOJ press officer], you should not say anything about this before talking to me.” What is there to “coordinate”? Why would Kagan suggest that they have to get their stories straight? And why “talk” instead of using emails (which leave a paper trail)?

The Judicial Conference of the United States publishes a Compendium of Selected Opinions, to guide federal judges on ethical issues. One section deals with “prior government employment.” The typical fact scenario is a government employee (often a U.S. Attorney) who becomes a judge. Several pages summarizing prior ethics opinions all say the same thing: if the U.S. Attorney was personally involved in a pending or impending matter, she must disqualify herself, and the parties cannot waive that disqualification; if she was not personally involved, but the impending matter was in her office (under her responsibility), she must disqualify herself, unless the parties waive the disqualification.

At the very least, Kagan must disqualify herself because her office was involved with the prospective ObamaCare litigation. . .

Justice Kagan should also follow Supreme Court precedent on this issue. In Schneiderman v. United States (1943). Justice Jackson refused to participate because the case began in 1939, he became Attorney General in 1940, and thus he “succeeded to official responsibility for it.”

While liberal justices like Justice Ruth Bader Ginsburg have attracted no criticism, and no calls for their recusal, despite routinely appearing before, and being honored by, liberal groups like the National Women’s Law Center that fervently support the 2010 health care law and depict it as remedying a grave “moral and social wrong” akin to segregation, the more conservative justices Antonin Scalia and Clarence Thomas have been attacked by liberal journalists for attending a Federalist Society event, even though the Federalist Society took no formal position on Obamacare. The liberal journalists claim that they should not have attended this event because tables at the event were purchased by law firms involved in challenging Obamacare in court. But tables at the event were also purchased by law firms that filed briefs supporting Obamacare in court, meaning that the law firms whose attorneys attended this event were on both sides of the issue; and in any event, the mere purchase of tables at an event by law firms with a point of view about the health care law “did not violate any applicable ethics rules,” and does not require recusal by a justice who attends or speaks at such an event  So it is clear that Justices Scalia and Thomas have no obligation to recuse themselves.

Former Supreme Court clerk Carrie Severino makes the case for Kagan’s recusal at greater length here.  Former Justice Department lawyer Ed Whelan discusses the serious nature of the recusal issue here. Another former Justice Department lawyer gives additional reasons why Kagan may be ethically obligated to recuse herself here.

In a follow-up post,  Severino notes that even if Kagan had not advised on, or been consulted, about legal challenges to Obamacare, she might still be obligated to recuse herself, since “precedent in three federal circuits suggests that Kagan ought to recuse herself merely by virtue of being head of the Solicitor General’s office while her office worked on the case. Under that test, even if she never knew the case was being addressed, she’d still need to recuse as a justice.” This is an additional, alternative reason why Justice Kagan should recuse herself from hearing the Supreme Court cases involving the health care law (such as National Federation of Independent Business v. Sebelius and Florida v. Department of Health and Human Services).

Putting aside the constitutional issues, Obamacare has also attracted criticism for harming the health care system and reducing employment. The Dean of Harvard Medical School, Jeffrey Flier, argued that Obamacare will harm life-saving medical innovation. The 2010 health care law has also been criticized by the Associated Press and others for breaking a number of campaign promises that the president made in 2008.