Notable Quotes, Jan.-Feb. 2007

Vincent Blasi was quoted in a 1/11 New York Times article about a policy prohibiting firefighters from displaying anything but their names on their firehouse lockers, including stickers of American flags. He explained that public employees generally have less right to free expression than ordinary citizens, but that "speech on a matter of public concern" is protected. He noted that the fire department's case-by-case enforcement could open the door for political or prejudicial actions when deciding which material would be acceptable. "If you allow the American flag," he said, "you have got to allow its ideological opposite, whatever that may be."

Richard Bonnie was quoted in a 2/21 Fort Smith, Arkansas Southwest Times Record story about proposed state legislation that would ensure that those found not guilty of a "heinous crime" by reason of insanity would never be released from state custody. "To my mind it is so clearly unconstitutional," he said, because a person found not guilty by reason of insanity may be held in custody for "therapeutic restraint" but not jailed as punishment. He noted, however, that some states allow for a finding of guilty but mentally ill, by which a defendant receives treatment in a mental facility and then is transferred to prison to serve the rest of his sentence if his competence is restored.

George Cohen was quoted in a 1/23 CFO.com article about new regulatory guidance on high-risk structured finance. The article discussed a 2006 letter by Cohen and three other law professors on the proposed guidance, arguing that the regulatory agencies "invite reckless participation in illegal conduct either as a primary fraud doer or an aider and abettor of another's fraud." Their concern was that banks could market new products designed mainly "for questionable accounting, regulatory, or tax objectives" without additional scrutiny or an independent outside assessment. He explained in the article that products with the "red flag" characteristics of fraudulent deals "are presumptively bad. For the agencies to say something weaker than that is an encouragement of misbehavior."

A. E. Dick Howard was quoted on 1/26 in both the Norfolk Virginian-Pilot and the Newport News Daily Press about a Hampton Roads transportation plan that would allow individual cities and counties to opt out of regional taxes. He took issue with those who voiced doubts whether the state can constitutionally force local governments to collect taxes against their will. "The General Assembly has the power to create local governments and decide what their powers will be," he said in the Virginian-Pilot. "It can determine whether local governments can act severally or regionally and whether they should levy taxes." Howard was also quoted in a 2/11 Roanoke Times article about a group opposed to construction of an intermodal rail freight yard in Montgomery County. The group wants the county supervisors to pass an ordinance that would strip corporations of eminent-domain powers, arguing that allowing a railroad to force people to sell their land violates the state constitution. Howard noted that the state can delegate authority as long as it maintains some control or oversight. He said it "would be a legitimate question of whether the state has abdicated its power" by allowing the railroad to use eminent domain.

John Jeffries was quoted in a 1/4 Durham, NC Herald-Sun article about the appointment of federal judge David Levi as the new dean of Duke Law School. "David Levi is a brilliant leader, gifted in intellect, in judgment and in ecumenical appreciation of merit," he said. "He will make a splendid dean."

In a 1/9 McClatchy News Service article about a study finding that 73% of illegal immigrants who had served time in prison were later arrested for another crime, David Martin expressed his surprise that the re-arrest numbers were "so high."

Robert O'Neil was quoted in the 1/19 Inside Higher Ed and the 2/2 Chronicle of Higher Education about Association of Governing Boards of Universities and Colleges proposals to improve standards for fiscal integrity and trustee performance. O'Neil, who helped draft the proposals, noted in Insider Higher Ed that they pushed the boundaries of current practices. Momentum for self-regulation by universities had slowed, he explained in the Chronicle, thus opening the door to increased government involvement.

Christopher Sprigman was quoted in a Jan/Feb Foreign Policy article about what happens to a person's e-mails after death. Estate planners are increasingly advising clients to include online passwords in wills, because otherwise Internet service providers routinely deny family members access to e-mail and other digital property. Sprigman noted that disputes about access are starting to land in the courts, and that "there will be a flood of these cases cropping up." A 1/23 InformationWeek article quoted Sprigman's blog posting about a U.S. 9th Circuit Court of Appeals case rejecting a challenge to the federal law that automatically extends copyright protection for out-of-print and orphaned works. The court's opinion "is simply indefensible," he wrote. "I had the strong impression at oral argument that the panel had not understood (or perhaps even read) the briefs we or the government had submitted, and was in any event not particularly interested in the real issues in the case."

On the 1/17 NPR Talk of the Nation, Robert Turner discussed reports that government intelligence agencies gather private financial information about Americans and foreigners with suspected links to terrorism. "I very much believe in privacy rights," he said. "But when we are talking about trying to prevent the next 9/11, which might dwarf the first one because it might involve WMDs, anthrax, smallpox, all sorts of things, we have to give the government the tools to protect us." Turner's Senate testimony on war powers was quoted in several newspapers and other sources. The 1/31 Voice of America News, for example, included these remarks: "In the conduct of war and the conduct of foreign affairs, the president, in fact, is the decider. Decisions involving the conduct of war, including where to move troops, whether to reinforce troops, whether to move troops from one hill to another, are vested exclusively in the president, and when Congress tries to control this power, either directly by statute or by conditions to appropriations, it becomes a law breaker and it violates the Constitution."

The 1/27 Dayton Daily News printed excerpts from a 1996 article by George Yin proposing that the Earned Income Tax Credit be removed from the tax system. "From modest beginnings, it now has become one of our largest assistance programs for low-income Americans, and by far the fastest growing," he wrote. "A transfer program of this magnitude shouldn't be hidden in our tax code. EITC benefits may be perceived as an income tax refund, a product of the tax preparer's ingenuity, or simply a windfall, and not a reward for work effort."

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