Discourse.net

I wrote previously of Occupy Wall Street’s plan to buy and forgive distressed consumer debt. A commentator on that post noted that it created a tax issue, and a colleague agreed it was a risk. A fuller treatment of the problem, and some instant revisionist thinking about the ‘Jubilee’ program in general is over at the excellent Naked Capitalism blog, Occupy Wall Street’s Debt Jubilee: A Gimmick with Tax Risk.

Like most of the things they run, well worth a read.

I’ve been reading draft student papers. One extremely common locution goes like this: “If a person does [something] then their liability will be [whatever].” That “their” is there because students don’t want to say “his” or “her” nor use the clunky “his or her”. English doesn’t currently offer a neuter word; “their” is a plural when the grammar requires a singular, but to my students’ ear that is less of an issue than picking a single gender to refer to both.

Why exactly they don’t pluralize the whole thing (“If people do [whatever] then their liability will be [whatever]“) I don’t know.

This language shift suggests that at some time in the future the non-prescriptivist definition of “their” will shift to include a role a neuter singular possessive. But I don’t believe we are there yet on “their” so I’m marking “their” up whenever I find it misused.

Then again, I may be behind the times: Dictionary.com already offers “their” a secondary singular meaning:

2. (used after an indefinite singular antecedent in place of the definite masculine form his or the definite feminine form her): Someone left their book on the table. Did everyone bring their lunch?

the voting records show that Thad Cochran is to the left of all but three Republicans in the Senate.

– Stuart Benjamin, Moderate Senate Republicans Fall Off Their Own Cliff.

And he has impressive charts showing just how scarce anything looking like a moderate Republican will be in the next Senate.

#osljprivacy is the hashtag for today’s conference on “The Second Wave of Global Privacy Protection” at Ohio State’s Moritz College of Law.

Tomorrow I’ll be making my first-ever trip to Ohio; Friday I’ll be speaking at the Ohio Law Journal‘s symposium on “The Second Wave of Global Privacy Protection.”

The list of speakers is here.

My thesis is more on the order of the lack-of-privacy in the next wave….

I wasn’t going to write about the Petraeus Affair, but wow this is getting weird.

• “Wealthy socialite”¹ Jill Kelly asks the FBI to investigate anonymous threatening emails she’s getting.
• The FBI agent she first contacts had sent her shirtless photos of himself; news articles use this to suggest he has a crush on her or something.
• The FBI starts a full-blown investigation, which isn’t the usual reaction to emailed threats. Maybe slightly weird, maybe not given that the emails made reference to the DCIA.
• The emails turn out to come from Petraeus’s angry mistress, Paula Broadwell, who is also his “biographer” (via the medium of a ghostwriter), and who believed Ms. Kelly of being, or trying to be, an alternate mistress. [Torts, anyone?]
• The FBI figures out during this investigation that Paula Broadwell was corresponding with Petraeus using gmail drafts and a shared file repository that they could both log into, a tactic people use when they are afraid of leaving an email trail. But the FBI foils that strategy by using geolocation and/or email metadata.
• Although the FBI says it found four classified documents on Ms. Broadwell’s computer, no one is being charged with leaking them — an extraordinary thing given this Administration’s near-hysterical war on leakers?
• Meanwhile, the FBI non-boyfriend, who isn’t part of the cybercrimes division decides he’s being shut out of the investigation because there’s some great coverup in progress to protect Obama:
  

  But the agent, who was not identified, continued to “nose around” about the case, and eventually his superiors “told him to stay the hell away from it, and he was not invited to briefings,” the official said. The Wall Street Journal first reported on Monday night that the agent had been barred from the case.

  Later, the agent became convinced — incorrectly, the official said — that the case had stalled. Because of his “worldview,” as the official put it, he suspected a politically motivated cover-up to protect President Obama. The agent alerted Eric Cantor, the House majority leader, who called the F.B.I. director, Robert S. Mueller III, on Oct. 31 to tell him of the agent’s concerns.

• Justice/FBI first informs Petraeus’s boss, Director of National Intelligence James Clapper, about their findings — on Election Day. Congress is not informed
• President Obama was informed for the fist time, at least officially, the next day.
• Petraeus resigned two days after the election. Congress first hears about it in the public media.
• Media are in shock. Partly due to a sense of having bought into the “cult of David Petraeus”, partly due to the sense that there’s something funny going on we don’t know yet.
• Senators and Congresspersons are upset because the FBI kept them in the dark. FBI spins back.
• Ms. Kelly — seemingly the victim here — lawyers up bigtime.
• The FBI follows up its earlier search of Broadwell’s computer by carting documents away from her home after a four-hour search — a search seemingly long-delayed.
• Top U.S. Commander in Afghanistan Is Linked to Petraeus Scandal:
  

  Mr. Panetta turned the matter over to the Pentagon’s inspector general to conduct an investigation into what a defense official said were 20,000 to 30,000 pages² of documents, many of them e-mails between General Allen and Ms. Kelley, who is married and has children.

Who knew that government workers had such active exciting lives? And it’s only Tuesday.

Update (still Tuesday!): And there’s a Florida angle:

Twin Florida socialites who are at the centre of the David Petraeus affair gained intimate access to America’s military and political elite through their high-rolling lifestyles even as they quietly racked up millions of dollars in debts and credit card bills.

Jill Kelley, whose complaint over threatening emails prompted the FBI inquiry that has ensnared two top generals, is mired in lawsuits from a string of banks totalling $4 million (£2.5 million), court filings obtained by The Daily Telegraph in Florida show.

Meanwhile Mrs Kelley’s identical twin Natalie Khawam – who obtained testimonies to her good character from both Gen Petraeus and Gen John Allen during her own separate legal battle – declared herself bankrupt earlier this year with liabilities of $3.6 million, filings show.

And, then, this:

The Daily Telegraph has learned. Miss Khawam once dated Charlie Crist, the state’s former governor, a Republican source said, while Pam Bondi, its Attorney General and a close ally of Mitt Romney, attended a function at Mrs Kelley’s home.³

And, allegedly, via Huffpost, Jill Kelley, Woman Who Sparked Petraeus Scandal, Ran Questionable Charity:

By the end of 2007, the charity had gone bankrupt, having conveniently spent exactly the same amount of money, $157,284, as it started with — not a dollar more, according to its 990 financial form. Of that, $43,317 was billed as “Meals and Entertainment,” $38,610 was assigned to “Travel,” another $25,013 was spent on legal fees, and $8,822 went to “Automotive Expenses.”

The Kelleys also listed smaller expenses that appear excessive for a charity operating from a private home, including $12,807 for office expenses and supplies, and $7,854 on utilities and telephones.

1. Update3: and Honorary Consul…to the Republic of South Korea…but somewhat unclear on the concept, it seems. [↩]
2. Update2: It’s plausible that this number comes from printing out photos or other encoded attachments, which can run to large numbers of pages for a single .gif or .jpg. Thus there may be many fewer emails than this big number suggests. Of course we can all hope for a movie… [↩]
3. Update 4 (Wed): Crist’s reaction: “Didn’t happen,” he said. “I may have met her.” [↩]

Last week Colorado and Montana passed citizen initiatives stating that corporations are not entitled to constitutional rights as people — a response to the Supreme Court’s Citizens United decision, but also to a longer history of vesting various rights in corporations.

It was thus something of a surprise to encounter today a reference to a new paper by Ronald J. Colombo, The Naked Private Square, which argues that,

Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

I have a lot of sympathy for the impulses that animate the corporations-are-not-a-person movement, but I’m a little uncomfortable with absolutist ideas about how to implement it. For example, simply saying that corporations do not have First or Fourth Amendment rights as an entity should not imply that the people working in them check their rights at the door either.

Similarly, the entity has legitimate needs for some rights-like legal guarantees if only to serve the legitimate interests of its owners and employees. Would due process still apply? I hope so. How about the right to counsel? Again, that seems like a necessity, doesn’t it?

I suspect that just removing all current protections would not work at all well; some sort of statutory code of intermediate protections would be necessary to replace the current framework. There’s a lot of work waiting to be done mapping out how wide swaths of law relating to speech, to search, and no doubt many other things, would and should work if we were to treat the corporation-as-entity as outside the protections of the bill of rights.

(Article spotted via Larry Solum.)