We haven't heard much in the last few days about the search of Representative Jefferson's congressional office. Undoubtedly negotiations are underway about what to do with the things seized during the search--they have been placed "under seal"-- and probably there will be some sort of compromise.
But the issue is pretty important, and, depending on the precedent set in this case, it will could certainly come up again. I think the consensus, in the immediate aftermath of the search, was that there was no plausible constitutional basis for the bipartisan outrage over the search of Rep. Jefferson’s office. I don't think I agree with that consensus. I wouldn't say that a Representative's (or Senator's) office should never be searched. But on the other hand it's not just a garden-variety search, and maybe it should be subject to stricter rules. Some thoughts:
Continue reading "Searching Rep. Jefferson's Office" »
Attorney General Alberto R. Gonzales has said that the United States government is exploring the possibility of criminally prosecuting the New York Times for publishing classified information: revealing the existence of the National Security Agency surveillance program. Apparently taking its cue from Gonzales, the House Intelligence Committee has held hearings on whether Congress should enact legislation to address this "problem."
Continue reading "Gonzalez and the Press" »
Last week the Court of Appeals for the Eleventh Circuit ruled that the act of state doctrine prevents former owners of property in Cuba from recovering damages from Club Med, which operated a resort on that property with the permission of the Cuban government. Cuba had expropriated the property from the family in 1959. Florida law would ordinarily permit plaintiffs to recover on theories of trespass and unjust enrichment, but under the act of state doctrine Cuba’s expropriation of the property must be considered valid for purposes of the dispute. (A brief discussion is here.)
Continue reading "Chevronizing Foreign Relations Law" »
Like doctors, lawyers should aspire to do no harm. Well, we should hope to do much, much better, but we should settle for not doing any harm. It doesn’t always work that way, though, as recent news concerning Microsoft makes clear.
Start with good news. At the end of last week, Dell and Google announced a new deal under which, we all assume, Google will pay Dell to pre-install Google software on Dell machines. As that deal suggests, even in today’s networked world, pre-installation of software is valuable. Skype—the free voice-over-IP software—has also reached a deal with Dell. The U.S. antitrust remedy in the Microsoft case hoped to create greater competition for pre-installed software and seems to be doing exactly that. Chalk one up for the lawyers.
But now the bad news: consumers are going to find it harder to get new tools from Microsoft and will have to pay more to get them.
Continue reading "Remedies in Microsoft: Be Careful What You Ask For" »
The standard justification for bankruptcy is that exists to solve a collective action problem. The various investors in the business are dispersed, and, left to their own devices, they will take action that is invididually rational but will fail to put the assets of the corporation to the highest-valued use. For over a decade we have known that it is possible, in theory, to solve the collective action problem ex ante. Still, many companies have capital structures that result in thousands of parties making investements in the business.
Continue reading "Hedge Funds and Collective Action" »