If SCOTUS does knock down DOMA Section 3, that will put an enormous amount of pressure on the purple and pale-red states. Same-sex couples in Kansas will go to Iowa to get married. When they come home, they will be half-married—married in the eyes of the federal government and their families, but not married in the eyes of Kansas. I can tell you from personal experience that when colleagues, neighbors, friends, and family members hear about the small indignities and injustices of being only half-married, when they realize how ordinary you and your spouse are, they get outraged that you’re being denied full marriage recognition. Businesses will get annoyed that they have to track this dual-marriage status for their employees, and will start to pressure their legislators to change. Lawsuits will bubble up as people sue Kansas (and Colorado, and Ohio, and Oklahoma) to have their “foreign” (i.e., out-of-state) marriages recognized at home.
But here’s what’s more important: The Supreme Court is not the final arbiter of all things good and just (thank God!). Or even of all things political. If Kennedy loses his nerve, Congress can and will repeal DOMA—if not this term, then the next time the House, Senate, and presidency are all held by Democrats. And even if the Supreme Court issues a mean ruling on Perry—saying there’s no fundamental right to marry and that California voters had every right to pass an amendment yanking equal marriage rights away—the Court will take it back in 15 years, when only ten Southern states are left banning recognition of same-sex marriages. The Court only took 17 years to overturn its ruling upholding sodomy laws in Bowers (which was a knife in the heart at the time, and pretty quickly became an international embarrassment). This one will come just as quickly, or even more so.
So in Colorado, the medical marijuana growers have to have 24-hour video of their operations, and that video is accessible by the state at any time — they can tap into it. And they all have these badges, and they had to go through background checks to get these badges. So there’s an attempt to keep black market money out of it … in Colorado, you’re unlikely to see a situation where a dispensary is, in fact, just a front for a Mexican cartel. And then they had this additional rule, which is pretty revolutionary — it’s called a 70-30 rule, where 70 percent of all the marijuana that each store sells, they have to grow themselves. … That goes a long way to eliminating the introduction of black market weed. … Stores aren’t just buying all their weed from Mexican cartels and marking it up. …
That’s a huge reason why the feds have focused on California. California doesn’t have tight regulations on who grows marijuana, where it comes from. So the feds move in, and what they claim is that these med marijuana businesses are fronts for what are in fact just old-school black market drug dealers. And they’re not growing medical marijuana in small batches for patients. They’re growing it in Mexico, or they’re growing it in the hills, and they’re just bringing it in, and it suddenly, magically becomes legal once it gets in the store. But in fact, it’s based on illegality. Colorado doesn’t have that.
Now is the time to think carefully about the vast law and policy implications of what it will mean when the United States is no longer at war.
Take one small sliver of the subject: the myriad federal statutes authorizing the government to exercise certain powers only for so long as hostilities continue. The existence of war, variously defined, is the sine qua non condition for the lawful exercise of a wide range of statutory authorities that have supported the past decade of U.S. counterterrorism operations. Military commissions, for example, may substitute for civilian trials to prosecute only those acts “incident to the conduct of war,” for events occurring “within the period of the war.” Under another law, civilians may be subject to the U.S. military justice system if they are “serving with or accompanying an armed force in the field… [i]n time of declared war or a contingency operation.” Likewise, private security contractors implicated in misconduct are immune from tort suits for a wide swath of activities, only if performed “during time of war.”
Perhaps most famous among such authorities, the 2001 Authorization for Use of Military Force empowers the President to detain individuals “engaged in an armed conflict against the United States,” only, as the Supreme Court held, “for the duration of these hostilities.” The existence of this “armed conflict” is likewise one of the central legal justifications for ongoing targeted killing operations by the United States abroad.
Whatever the answers to the longstanding questions about the scope of these and other war-triggered authorities, about whether and for how long they should continue to exist, it should be possible to agree on at least one thing as the conversation at war’s end begins: it would be better to make decisions about which of these laws are needed after we have a developed a game plan for U.S. counterterrorism strategy for the long-term. A strategy not driven by the demands of crisis-driven fear, as it was in the months after September 11, or by ex-post mistake mitigation, the task that confronted the President in his first term, and in important ways burdens him still.
And that’s where theory hits reality. Consider that Google has attracted attention from both antitrust and consumer protection officials after accusations that it has used its dominance in search to hinder competitors and in some instances has not made clear the line between advertisement and results. Consider that the “decisions” made by Facebook’s computers may involve widely sharing your private information; or that the recommendations made by online markets like Amazon could one day serve as a means for disadvantaging competing publishers. Ordinarily, such practices could violate laws meant to protect consumers. But if we call computerized decisions “speech,” the judiciary must consider these laws as potential censorship, making the First Amendment, for these companies, a formidable anti-regulatory tool.
Is there a compelling argument that computerized decisions should be considered speech? As a matter of legal logic, there is some similarity among Google, Ann Landers, Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship. The First Amendment has wandered far from its purposes when it is recruited to protect commercial automatons from regulatory scrutiny.
-Professor Tim Wu articulates some common sense limits to free speech. The notion that search engine results are protected speech is intriguing and provocative in the classroom, but troubling in the real world.
Via NY Times (http://nyti.ms/N6krlu)
The canonical story of the lone genius inventor is largely a myth. Edison didn’t invent the light bulb; he found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Man, who in turn built on lighting work done by others. Bell filed for his telephone patent on the very same day as an independent inventor, Elisha Gray; the case ultimately went to the U.S. Supreme Court, which filled an entire volume of U.S. Reports resolving the question of whether Bell could have a patent despite the fact that he hadn’t actually gotten the invention to work at the time he filed. The Wright Brothers were the first to fly at Kitty Hawk, but their plane didn’t work very well, and was quickly surpassed by aircraft built by Glenn Curtis and others – planes that the Wrights delayed by over a decade with patent lawsuits.
The point can be made more general: surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. Inventors build on the work of those who came before, and new ideas are often “in the air,” or result from changes in market demand or the availability of new or cheaper starting materials. And in the few circumstances where that is not true – where inventions truly are “singletons” – it is often because of an accident or error in the experiment rather than a conscious effort to invent.