Should Government Be Forced to Tell the Truth?

Apparently if the government is not telling the truth about scientific research it may be possible to sue them and have them tell the truth. It seems strange in the debate over the quality and accuracy of the science conducted at the governments behest that there may be a way to force them to tell the truth. One group is exploring that possibility, Americans for Safe Access ("ASA").

ASA is suing the Department of Health and Human Services over statements it has disseminated regarding the medical value of marijuana. The fact that this suit is over medical marijuana is incidental to the larger issue here, the ability of the citizenry to force the government to acknowledge scientific truth. The law at issue in this case is The information quality act (pdf).

(a) IN GENERAL. — The Director of the Office of Management and Budget
shall, by not later than September 30, 2001, and with public and Federal agency involvement issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act.

(b) CONTENT OF GUIDELINES. — The guidelines under subsection (a) shall
(1) apply to the sharing by Federal agencies of, and access to, information disseminated by Federal agencies; and (2) require that each Federal agency to which the guidelines apply (A) issue guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by the agency by not later than 1 year after the date of issuance of the guidelines under subsection (a); (B) establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a); and (C) report periodically to the Director (i) the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency; and (ii) how such complaints were handled.

The Information Quality Act came into being without hearings or debates and no committee reports. The language was simply inserted as Section 515 of the more than 700-page Treasury and General Government Appropriations Act for Fiscal Year 2001. Its purported purpose is to do as the ASA is doing, correct bad information put out by the government. However some, like defendingscience.org have charged that the act is little more than a way to allow industry to obscure legitimate scientific information.

Petitions for correction must first be submitted to the agency responsible. If the petition for a correction of faulty information is denied that decision is appealable within the the federal agency who made the denial. However, there is a debate about whether or not the ultimate agency decisions are subject to judicial review. If the act and its decisions are subject to judicial review then there may be an increase in suits like the ones advanced by the ASA over the failure of a federal agency to properly respond or correct disseminated information.

That is what the current ASA appeal, brief available here in pdf, is about. The district court held that the act was not subject to judicial review because of a lack of legislative history indicating congress intended for the decisions of the agencies under the IQA are reviewable. The ASA is appealing and arguing based on some strong precedent dealing with the APA that agency decisions, such as the ones at issue here, are reviewable.

If you decide to read the ASA brief they make a strong positivist, textualist case. The Brief uses the case law very effectively to argue for the judicial review of IQA decisions. However the result may not be as straightforward as the ASA's case law would indicate. There are strong policy reasons why the courts would be reluctant to get involved with the decisions of administrative agencies. In their writeup the LAT has this quote,

Justice Department lawyer Alisa Klein told the appeals court panel that the government shouldn't be forced to defend the accuracy of "countless pieces of information" in its massive archives. U.S. Circuit Court Judge Marsha S. Berzon, an appointee of President Clinton, said the law at issue in the case was "amazing" because it did appear to require the government to correct all inaccurate statements, a result she called "troubling."

Many cases at the appellate level are decided on the policy and practical considerations that they bring. The 9th circuit may be reluctant to force the government to spend the resources required to defend the accuracy of every piece of information that it disseminates in court. this could end up costing a great deal in time and resources for both the agencies tasked with this defense and for the courts themselves in presiding over the reviews. Also, the courts are reluctant to second guess the decisions of administrative agencies under a theory that the agencies are far more competent than the judiciary to decide what is and is not accurate information.

So policies of judicial competency and judicial economy face off against strong stare decisis and the value of truth in government information. The court may well not decide on the issue of whether the information presented is accurate if they decide judicial review is not available. This might seem to be a strange result given the clear inaccuracy of the information at issue and the seeming ease of telling the government to correct it. In the end i believe that the ninth circuit will affirm the lower courts ruling and deny a private cause of action and judicial review to decisions made under the IQA.

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Obama's Double Secret State Secrets Strategy

Everyone is probably aware by now that the government is advancing some pretty far reaching state secret claims. Everyone is probably also aware that this violates the spirit of campaign promises regarding habeas rights. I want to explore the double secret strategies that Obama may or may not be employing in order to secretly assure that Presidential power is restricted and detainees do get habeas rights even though he appears to be doing the exact opposite.

Secret Theory One--Making Congress Do It

Ok it is congress' job to define what are and are not state secrets as far as statutory direction for the courts. This theory states that by advancing theories that are so egregious in their attempts to grab power that it will force congress to act. The people will rise up and hold tea parties against Obama's behavior and force action on the hand of congress. Obama will play the villain to give the democrats in congress the victory of rolling back executive power grabbed under Bush. Obama's refusal to say whether he supports the state secrets act is simply a way to keep the topic in the headlines. By drawing additional press it increases the visibility of the issue and the chances that Congress will act on the issue.

Secret Theory Two--Making the Judiciary Do It

By advancing these claims in the judiciary Obama provides the opportunity for test cases that may establish precedent that rejects the claims that the governments lawyers are making. By doing this in the courts Obama is effectively backdooring law because congress is unreliable. If the courts reject these arguments then future presidents will have little chance of making them stick because of the doctrine of stare decisis.

The state secrets doctrine is a judicial doctrine to begin with so maybe it makes sense to have Obama set up test cases for its reformation there instead of trying to get by the republican's in congress. By playing this out in the courts Obama and the democrats avoid dealing with the consequences of limiting what is and is not secret. This potentially avoids charges that Obama and the Dems are soft on terrorists as the rabid right already hates activist courts. Who are the courts after all to say what should and should not be secret? they lack the competency to make those types of decisions. Obama is simply playing the power grabber so that the courts reject his argument...its brilliant.

Secret Theory Three--He has to do it.

Obama doesnt actually want the power. Its just the job of the lawyers to make these arguments on behalf of their clients. Its their job to advance all possible defenses to these cases instead of admitting that the government spied on these people and owes them damages. Lawyers of course dont have to believe that this is actually the law to make these arguments. There is no ethical problem or penalty for misstating or exaggerating what a case says.

whats your theory?

Seriously though if you read the brief filed by the government it makes a largely procedural and practical argument that it is simply to hard at this time to conduct the type of operations needed to determine if the people held there deserve to be held there. Essentially it stats that because there are ongoing combat operations in that theater these people should be held until such time as the war is over.

The United States and its allies have a “clear and focused goal: to disrupt, dismantle and defeat al Qaeda in Pakistan and Afghanistan, and to prevent their return to either country in the future.” Id. The Court’s ruling, however, likely would divert the military from this critical mission.

its not a compelling argument.

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Too Many Rights?

via Steve Benen, Clarence Thomas believes we have to many rights.

‘Today there is much focus on our rights,” Justice Thomas said. “Indeed, I think there is a proliferation of rights.”

“I am often surprised by the virtual nobility that seems to be accorded those with grievances,” he said. “Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

This is interesting because far from having to many rights the recent talk has been about the erosion of rights. I happen to think allowing the government to spy on Americans without warrants is a violation of our 4th amendment right. I think plenty of people have their due process and equal protection rights violated by failures in our justice system. I really hope Thomas doesnt want to get rid of those first ten amendments to the constitution. If not those then, what does he want to get rid of?

In all likelihood thomas is making his originalist argument against things like the right to privacy or other rights created under an illustrative view of the constitution. An originalist and textualist would have to feel that anything not spelled out in the document is not a right and given that the Court has read some rights into the constitution, see Roe v. Wade, this would be giving americans too many rights.

Still thomas has a get off my lawn quality to him and i hope he retires so he doesnt have to deal with people anymore.

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Cell Phones and Fall of Western Civ

Kevin Drum has a post up on the collapse of western civilization due to the inability of 20 somethings to communicate in a manner other than text. The basis for his post is an article by George Packer. I thought i would take the opportunity to address this topic as i am in fact one of these young 20 somethings who have grown up with the advance of cell phone technology and feel qualified to offer my observations about my peers. Packer writes,

It turned out that cell phones had become a major headache in his work. Customers called him all the time, expecting him to hear every little complaint even while he was wrestling with a roof hatch. Meanwhile, they were more and more unreliable, not answering their phones, missing scheduled appointments.

....“It’s the technology,” the roofer said. “They don’t know how to deal with a human being. They stand there with that text shrug” — he hunched his shoulders, bent his head down, moved from side to side, looking anywhere but at me — “and they go, ‘Ah, ah, um, um,’ and they just mumble. They can’t talk any more.” This inadequacy with physical space and direct interaction was an affliction of the educated, he said — “the more educated, the worse.”

....This was a completely new phenomenon in the roofer’s world: a mass upper class that was so immersed in symbolic and digital cerebration that it had become incapable of carrying out the most ordinary functions — had become, in effect, like small children with Asperger’s symptoms. It was a ruling class that, out of sheer over-civilization, was quickly losing the ability to hold onto its power.

to which drum responds

WTF? These folks call constantly on their cell phones, so it's not that they've lost the ability to carry on a verbal conversation. It's just that they can't do it face-to-face. Do I have that right?

Is anyone else skeptical about this? Obviously I have zero experience with 20-something metrosexuals in New York City, but, seriously? Is this happening? More anecdotes, please.

First, if you read the article you find that packer is writing about times when customers have intermediaries present who handle communication. Like having your lawyer with you to talk to the police or negotiate your divorce. The client doesnt talk. Second is that the roofer seems to segue into a comment about how all of these people will end up dependent on the government. This seems rather dubious to me. I havent met or heard of any friend or acquaintance unable to talk face to face with anyone due to an over reliance on text conversation. I might ask a friend familiar with roofing or contracting to come with me when i meet a roofer or a contractor because i lack general knowledge in that area, but i wouldn't have them do all the talking.

As far as communication habits and some general tendencies of those who have grown up using cell phones and texting as common means of communication there is one common behavior -- the lack of concrete plans. From a comment in the drum post.

I finally got a cell phone again when I realized it was hurting me. People in their 20s don't make real plans anymore- they have a vague sense that they're doing something with someone at some point, but all the details are negotiable, right up to the moment that it happens. So if I'm supposed to go to the movies with friends at 7 on Tuesday, I could get a text at 6:59 changing that to 8, or to Wednesday, or cancelling, or anything. When I didn't have a cell phone, I used to waste an enormous amount of time waiting for people who weren't coming, because the plans had changed and they couldn't text and tell me. When I confronted them about it, they would tell me that if I had a phone, things like that wouldn't happen.

This is very true. My friends and i will agree that we are going out on a friday night. The time will generally be 10. The transportation, and place are all decided about 15 minutes before we leave. The reason for a lack of concrete planning is simply that it is unnecessary. While it used to be that in order for a group to assemble everyone needed a prearranged meeting place and time now with cell phones and instant communication people can find each other or change plans without worrying that things will fall apart.

This flexible attitude leads many people to view young people as flaky but is really just a difference in the general ability of young people to manage time on the fly. Its more dynamic and, when done correctly, allows for an increased efficiency. For example, knowing you can push back something 15 minutes may allow you to perform an extra task that would have had to be pushed off to a more inconvenient time later. instead the plans can change, people can take care of their business without being tied to times set arbitrarily to begin with. The problems in this scenario arise when your out of the loop of communication as the commenter was. He likely prevented his friends from making optimal use of their time because he could never be reached to modify plans.

As far as face to face communication goes, it is my preferred method. The reason for this is that i find it easier and more effective to conduct a difficult or complex conversation in person than by phone or text. What texting and leaving messages does allow for it people to try and avoid tough conversations. this is a pint made by another commenter in that thread.

Face to face communication, especially when it involves negotiation, or a message that one person doesn't want to hear, requires courage. Courage requires practice. The existence of text-based communication allows you to avoid all the situations where, in the past, you would have practiced. So I kinda see where this dynamic might work for a some people. But there are plenty of jobs and hobbies that require and even thrive on face-to-face competition and negotiation, which will develop the skills needed.

Another view of the same phenomenon is that text-based communications allow the socially phobic to actually express themselves. Kind of a strange prosthetic.

There is an anxiety in, say, calling up a girl and asking her on a date. You have to dial the number, wait for the phone to ring. Then you have to talk with her with the possibility that she rejects you. Texting and asking apparently reduces that anxiety. I still prefer to do it in person.

Texting has its place though. Some conversations are so simple and not particularly important that you can have them over a longer time span. for example you text you friend about what time you want to meet for lunch. text also ensures you dont interrupt whatever that person is doing. It allows them to take their time in getting back to you without the hassle of checking a voicemail. What is the difference between hearing a message and reading it. most of my friends just call back without even listening to the voicemail.

I cannot say i have noticed an inability among the educate or uneducated to carry on conversations in person. The only explanation i can think of for the observations of the roofer is that the customers were intimidated and unacquainted with contracting and so wanted others more knowledgeable and better able to deal with the contractors to handle it for them. I guess this is possibly due to a general ability to avoid difficult or uncomfortable conversations through the use of text messages but it seems unlikely.

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Addverse Possess the Foreclosure Crisis Away

A side effect of the massive foreclosure crisis is that a great many number of homes sit vacant waiting to be vandalized, stripped of any and all valuable resources and generally made worthless. The true owners of these properties are sometimes generally unknown or not interested in being responsible for them. In some cases the banks who own the property are leaving the former owners in possession because its too much money or hassle to sell them. The banks are walking away from property. With all of these owners giving up on property i propose that changes be made to adverse possession laws in order to facilitate the renovation of these abandoned properties and get the title in the hands of people who want them.

I thought about this as a means to dealing with some of the housing crisis after reading this article linked via john cole.

When the woman who calls herself Queen Omega moved into a three-bedroom house here last December, she introduced herself to the neighbors, signed contracts for electricity and water and ordered an Internet connection.

What she did not tell anyone was that she had no legal right to be in the home.

Ms. Omega, 48, is one of the beneficiaries of the foreclosure crisis. Through a small advocacy group of local volunteers called Take Back the Land, she moved from a friend’s couch into a newly empty house that sold just a few years ago for more than $400,000.

Michael Stoops, executive director of the National Coalition for the Homeless, said about a dozen advocacy groups around the country were actively moving homeless people into vacant homes — some working in secret, others, like Take Back the Land, operating openly.

In addition to squatting, some advocacy groups have organized civil disobedience actions in which borrowers or renters refuse to leave homes after foreclosure.

Cole was actually upset that these people were moving into these properties.

These people aren’t just “squatting” or engaging in “civil disobedience” or striking a blow against tyranny or whatever the hell else you want to call it. They are stealing, they are trespassing, and they are breaking the damned law. And while the NY times may think it is glamorous or sexy or a real power to the people moment, they should be clear about what is going on here and what a mess this sort of behavior causes for the authorities. If they can’t figure out why this is problematic, maybe they should read their own damned NY Times magazine about the problems squatters and illegals and looters cause in Cleveland. Give Tom Brancatelli a call and ask what he thinks about this.

Being a good law student the first thing i thought of when i heard people were moving into property and acting as if they owned it was a property law concept called "adverse possession". For those unfamiliar with the term adverse possession is when you occupy the property of another as if its yours, with out their permission, continuously for a number of years as determined by statute. The length of this time varies from state to state. For an example of an adverse possession statute scheme see here.

In my mind the biggest obstacle to using adverse possession as a means to fill the empty houses or to give people a chance to keep their homes is the time requirement. In california it takes five (5) years of possession before you can make your claim and try to gain marketable title to the property. During that time you must also pay property taxes, something i support as part of the requirement. It is less likely that you can convince a responsible party to take over abandoned property, invest in it to the point it becomes valuable, if that investment could be taken back by the bank or other entity in four(4) years when the market has recovered somewhat. I propose changing the time to eighteen (18)months.

If you believe that this period is too short and would lead to people essentially stealing land that others are being responsible for this change could be made in a way to be tailored for the housing crisis. Make this a statute that is available only after foreclosure of a property when such property has been uninhabited for 3 months. Other arrangements could be made for those who wish to try and stay in the house.

The reason i am advocating for an increased incentivization for adverse possession is that the purpose of adverse possession statutes is to deal with exactly the problems we have now, underutilized land.

Natural Rights:

Adverse possession has somewhat of a "labor" basis. It allows a person to acquire property interests through the productive use of land that has fallen into disuse. The doctrine can be viewed as dealing with circumstances where previously owned land reverts to the commons through non-use (and a failure to monitor) and may be claimed by another who applies his or her labor to remove the land from its natural state.

Utilitarian Theory:

The utilitarian justification has two branches. First, adverse possession rewards productive use of land over extended non-use. This justification is not strictly utilitarian, for it does not always (or even usually) give title to more productive users --- only when the true owner is making no use (the market will help ensure that less productive uses are transferred to more productive uses, but the market often cannot work when the true owner is unaware of his ownership). It is true, as the question suggests, that the doctrine considers non-use of land to be wasteful, but the tax requirement in most western states reduces the risk that fallow lands will be subject to adverse possession. Second, the doctrine is utilitarian in the sense that it makes land more marketable---reducing stale claims and reducing litigation (and the risk of litigation).

Those of you who read the NYT article on the lady who took set up shop in that house will realize that she isnt planning on staying long term. However she might change her mind if she knew that the property could be hers in a year and a half if she manages to be a decent homeowner. Even if she leaves, someone else could "tack" on to her possession and then claim ownership. Adverse possession seems like a good way to deal with the problem of massive foreclosures and get the housing market back on a level footing. Without so many foreclosures on the market prices will not be as depressed and fewer people will be underwater.

Adverse Possession is one an old and well known legal doctrine and should provide a useful tool in this crisis. In fact i might go get a house right now...

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