The Dangers of Secret Law

Last week, the Department of Justice released 18 new FISC opinions related to Section 702 as part of an EFF FOIA lawsuit. (Of course, they don't mention EFF or the lawsuit. They make it sound as if it was their idea.)

There's probably a lot in these opinions. In one Kafkaesque ruling, a defendant was denied access to the previous court rulings that were used by the court to decide against it:

...in 2014, the Foreign Intelligence Surveillance Court (FISC) rejected a service provider's request to obtain other FISC opinions that government attorneys had cited and relied on in court filings seeking to compel the provider's cooperation.

[...]

The provider's request came up amid legal briefing by both it and the DOJ concerning its challenge to a 702 order. After the DOJ cited two earlier FISC opinions that were not public at the time -- one from 2014 and another from 2008­ -- the provider asked the court for access to those rulings.

The provider argued that without being able to review the previous FISC rulings, it could not fully understand the court's earlier decisions, much less effectively respond to DOJ's argument. The provider also argued that because attorneys with Top Secret security clearances represented it, they could review the rulings without posing a risk to national security.

The court disagreed in several respects. It found that the court's rules and Section 702 prohibited the documents release. It also rejected the provider's claim that the Constitution's Due Process Clause entitled it to the documents.

This kind of government secrecy is toxic to democracy. National security is important, but we will not survive if we become a country of secret court orders based on secret interpretations of secret law.

Posted on June 21, 2017 at 6:12 AM • 31 Comments

Comments

RonKJune 21, 2017 6:37 AM

"we will not survive"

Sorry, Bruce, but I disagree, I think it's quite possible that a totalitarian nation rising from the ashes of American democracy could very well survive a long, long, time (as nation's lifetimes are measured).

Bob GortJune 21, 2017 6:48 AM

Secret law is not just toxic to democracy, it is a contradiction in terms -- it becomes a series of arbitrary rulings. It would be interesting to know the mental contortions these judges use to become part of such proceedings.

Dr. I. Needtob AtheJune 21, 2017 6:49 AM

The argument that "we won't survive" or that a practice will bring bad consequences is probably quite valid, but cynical. I prefer to argue that it's just plain evil.

jonesJune 21, 2017 8:01 AM

The Problem of Our Laws, Franz Kafka, 1931:

Our laws are not generally known; they are kept secret by the small group of nobles who rule us. We are convinced that these ancient laws are scrupulously administered; nevertheless, it is an extremely painful thing to be ruled by laws that one does not know. I am not thinking of possible discrepancies that may arise in the interpretation of the laws, or of the disadvantages involved when only a few and not the whole people are allowed to have a say in their interpretation. These disadvantages are perhaps of no great importance. For the laws are very ancient; their interpretation has been the work of centuries, and has itself doubtless acquired the status of law; and though there is still a possible freedom of interpretation left, it has now become very restricted. Moreover the nobles have obviously no cause to be influenced in their interpretation by personal interests inimical to us, for the laws were made to the advantage of the nobles from the very beginning, they themselves stand above the laws, and that seems to be why the laws were entrusted exclusively into their hands. Of course, there is wisdom in that--who doubts the wisdom of the anicent laws?--but also hardship for us; probably that is unavoidable.

The very existence of these laws, however, is at most a matter of presumption. There is a tradition that they exist and that they are a mystery confided to the nobility, but it is not and cannot be more than a mere tradition sanctioned by age, for the essence of a secret code is that it should remain a mystery. Some of us among the people have attentively scrutinized the doings of the nobility since the earliest times and possess records made by our forefathers--records which we have conscientiously continued--and claim to recognize amid the countless number of facts certain main tendencies which permit of this or that historical formulation; but when in accordance with these scrupulously tested and logically ordered conclusions we seek to orient ourselves somewhat towards the present or the future, everything becomes uncertain, and our work seems only an intellectual game, for perhaps these laws that we are trying to unravel do not exist at all. There is a small party who are actually of this opinion and who try to show us that, if any law exists, it can only be this: The Law is whatever the nobles do. This party see everywhere only the arbitrary acts of the nobility, and reject the popular tradition, which according to them possesses only certain trifling and incidental advantages that do not offset its heavy drawbacks, for it gives the people a false, deceptive and over-confident security in confronting coming events. This cannot be gainsaid, but the overwhelming majority of our people account for it by the fact that the tradition is far from complete and must be more fully enquired into, that the material available, prodigious as it looks, is still too meager, and that several centuries will have to pass before it becomes really adequate. This view, so comfortless as far as the present is converned, is lightened only by the belief that a time will eventually come when the tradition and our research into it will jointly reach their conclusion, and as it were gain a breathing space, when everything will have become clear, the law itself will belong to the people, and the nobility will vanish. This is not maintained in any spirit of hatred against the nobility; not at all, and by no one. We are more inclined to hate ourselves, because we have not yet shown ourselves worthy of being entrusted with the laws. And that is the real reason why the party which believes that there is no law has always remained so small--although its doctrine is in certain ways so attractive, for it unequivocally recognizes the nobility and its right to go on living.

Actually one can express the problem only in a sort of paradox: Any party which would repudiate, not only all belief in the laws, but in the nobility as well, would have the whole people behind it; yet no such party can come into existence, for nobody would dare to repudiate the nobility. We live on this razor edge. A writer once summed up the matter up in this way: The sole visible and indubiatable law that is imposed upon us is the nobility, and must we ourselves deprive ourselves of that one law?

K.S.June 21, 2017 8:56 AM

"we will not survive if we become a country of secret court orders"

At least, we will have trains running on time.

albertJune 21, 2017 9:54 AM

It is important to note that the FISA Court judges serve seven-year terms, and are appointed by the Chief Justice of the United States (that is, of the Supreme Court).

It follows that the decisions by FISA will mirror those of the Appointer. AFAICT, FISA judges are -not- non-partisan with regard to political parties.

FISA Court judges hear only government arguments. This is akin to Grand Jury proceedings, which is one of the worst systems in American jurisprudence and should be abolished.

Insiders -say- that the courts 99% surveillance request approval rate is the result of careful crafting of the requests by the LE/IC. This is highly unlikely, as no proof is given.

Fear of terrorism has increased the erosion of Democracy at an exponential rate.

If this is a goal of the Islamic jihadists, then they have been successful. The added benefit (for the State) is easier suppression of dissent here at home (some conspiracy theorists believe that was the original intention).

To establish trust in a government, one needs more openness, not more secrecy.

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ParabarbarianJune 21, 2017 10:35 AM

"At least, we will have trains running on time."

When Mussolini made it illegal for a train to be late, late trains were just not included in the official reports. This padded the statistics allowing the government to claim the trains were running on time. Socialism is always inefficient except at covering up its failures.

renkeJune 21, 2017 12:05 PM

@Parabarbarian

What's the connection between Mussolini's ruling on late trains and shortcomings of a socialist system? I think I miss your point.

AnonJune 21, 2017 12:47 PM

@K.S.: Good one, but I think most people will miss the reference to Mussolini. Too many of these references are working, it's eerie.

NickieJune 21, 2017 12:53 PM

The socialists would only report the ontime trains.

If the train owners (pure capitalists) ran things, they would say there is no such thing as a late train.

WinterJune 21, 2017 2:01 PM

"Socialism is always inefficient except at covering up its failures."

What exactly does Mussolini's laws have to do with socialism? For what I remember, socialists never cared about whether or not trains were on time. Only fascists did.

MartyJune 21, 2017 2:08 PM

@renke, there isn't one, after all, fascism *isn't* socialism, communism, or even on the political left, no matter how frequently people mistake it for such. Though, systems on both the left and right may be authoritarian in nature.

JG4June 21, 2017 4:36 PM


@Marty

The central planners always have to resort to authority, because they never can set prices with the perfection required to balance supply and demand. An economy can be considered as a distributed computing system, where the nodes collaborate to set prices. Some of that price setting is efficient and some of it is inefficient. The left generally would like to see government resources directed to nurturing people, while the right generally want to direct resources to defense. Neither are intrinsically wrong, the problem is that both become self-serving, because of the inability of the system to manage conflicts of interest. The experiments in Marxism show that the power to manage the economy generally is redirected to genocide, while experiments in fascism show that the power to manage the economy generally is directed to conquest.

Just Passin' ThruJune 21, 2017 5:16 PM

@Bruce:
I agree whole-heartedly

I am not a lawyer, but I do not see how the decision you mention can possibly pass 6th Amendment scrutiny, specifically with regard to the right of the assitance of counsel. The assistance of counsel is useless if prevented from knowing and arguing the law.

Also, another 6th Amendment aspect that should be attacked is the supposed impartiality of the court. If the FISA court blinds one side to the law, then makes a decision that basically says "you didn't persuasively argue against your opponent", well that's a problem. Stating it differently, if the FISA court allows the government to cite secret opinions in its arguments but refuses to disclose those citations to the opposition, that is not impartial. Again, IANAL, but nothing requires the court to accept the government's arguments citing previous opinions if they are not disclosed or available to the other side -- they could order the government not to use those citations unless the entire opinion is disclosed; that would be impartiality.

Clive RobinsonJune 21, 2017 5:44 PM

@ JG4, Marty,

The experiments in Marxism show that the power to manage the economy generally is redirected to genocide, while experiments in fascism show that the power to manage the economy generally is directed to conquest.

Where "conquest" generally means genocide or slavery of those who lived there prior to the invasion and occupation...

Thus either way gives you genocide, it's just a question as to if it's "your own people" or "other people".

But an economy can not "run it's self" as history has repeatedly shown thus you need to understand the strengths and weaknesses of both socialism and capitalism.

Importantly capitalism can not exist without a degree of socialism to build the roads and other infrastructure capitalism is critically dependent on.

Thus we need a mix of "socialism" with a "small s" and capitalism with a "small c". If either gets out of balance and overcomes the other then it will not just be the economy that suffers...

AnuraJune 21, 2017 6:09 PM

@Parabarbarian

Socialism is always inefficient except at covering up its failures.

And capitalism is efficient? We are producing products half-way across the world, and shipping them here, using more physical resources and labor simply because the process is optimized for minimally experienced labor, and we are doing this because the market is distorted so much that we can pay them significantly less for the same job.

Productivity is maximized when everyone is specialized; when that happens, capitalists can't make as much money because then they lose their power advantage as every job has a smaller and smaller pool of labor, and even previously low-paid labor can demand more as the supply of labor willing to do jobs that are perceived as undesirable or less expensive goes down. So they prefer a significantly less efficient economy, simply because they have more relative power that way.

Capitalism may lead to a more efficient business in some situations, but overall it leads to an inefficient economy. I'd wager that most business owners ultimately provide negative utility to the economy when you include the lost opportunity costs of their selfish and short-sighted decisions.

albertJune 21, 2017 6:46 PM

@Anura,

Ignore the folks who can't distinguish between 'socialism' and 'fascism'.

You talk about productive labor. That's not the problem. What drags the system down is -non-productive- 'labor'. We live in a fascist-pseudo-democratic-republic, with the fascist state being controlled by the banking system. The banksters contribute nothing to the so-called 'economy'. They are uncontrolled parasites that will eventually kill the host, that is, us. Their game is to acquire physical assets with fiat (worthless) currency generated by their pals in the government. That's it. It's all a big shell game, and everything you see, hear, and read is manufactured theater.

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mostly harmfulJune 21, 2017 7:14 PM

@Bob Gort


Secret law is not just toxic to democracy, it is a contradiction in terms -- it becomes a series of arbitrary rulings.


Thought experiment: Suppose, purely for the sake of argument, that there is some significant difference between

  1. a regime of secret law
  2. an absolute tyranny

Can one tell whether one is subject to the first or the second?

Impossible! All evidence for a distinction is secret!

And, since any supposed distinction between the two sorts of regime is imperceptible to its subjects--the subjects of a regime of secret law must behave as though they are indeed ruled by an absolute tyranny.

And this, in turn, means that a regime of secret law, for purposes of self-preservation, must follow the best practices for absolute tyranny.

So everyone under a regime of secret laws, regime and subjects alike, behaves as though the regime is in fact absolute tyranny.

AnuraJune 21, 2017 7:17 PM

@albert

The banks are a problem, but not the only problem. The real problem is that in capitalism earnings for those at the top don't represent anything of value. Essentially, all profits represent inefficiencies in the markets; in a perfectly efficient and perfectly competitive market, you shouldn't be able to profit. When it comes to the stock market, the inefficiency is information: we can't predict the future, so we don't know how much these companies will profit in the future.

Businesses keep everything confidential by default, even details relevant to their investors and customers, leading to worse decisions on both sides. Because of the sheer amount of money in the economy, this makes it very easy to profit off of meaningless things like short term fluctuations in the outlook of a company based on new information coming out. This is why banks look like such a villain, but really it's just capitalism.

The problem is that the businesses are structured for the sake of being controlled, not for the sake of serving the customers. If they were efficient, they would need no management because the employees would know how to do their jobs. Executives and managers are largely there to get in-between the employees and customers because if they weren't there, the employees would be left to their experience and their communication with the customer to figure out what they should be doing.

As for fiat currency; it's not worthless. What gives something value is demand, and dollars will always be in demand because people will always need to pay taxes (at least, according to modern monetary theory). I personally prefer nationalizing all of the land and renting property and auctioning off our natural resources on the free market, taxing that and paying the rest out equally to everyone as a citizen's dividend - then cash is effectively backed by our natural resources and infrastructure.

DroneJune 22, 2017 4:25 AM

The current Federal Government is well past any need to do things in "secret". Now it just openly breaks the Law and violates the Constitution at-will. If anyone tries to hold them accountable, they simply plead the Fifth and conveniently misplace/erase any evidence. In the end they just walk away scot-free with a big bonus (your money), free platinum health insurance coverage, and a big fat pension check - for life. This is how it is for the "Elites". While you a I work our butts off every day to pay for them.

JG4June 22, 2017 5:58 AM


@Clive

Nice point about capitalism and socialism. I may have said before that both systems have problems with arbitrary power. In the first case, wealth concentration produces large differentials in power, while in the second, the Marxist ideal requires a central power to decide resource allocation "according to their need" and resource production "accordinng to their ability."

@Anura

If I am not mistaken, it costs the customer about 10 cents a pound to haul commodities across the US by rail freight. The price for hauling conex shipping containers from Asia to the US is roughly the same per pound for four times the distance. There are many, many products for which the cost of production is much lower in Asia than the 10 cents per pound shipping differential.

I would favor a tariff system that attempts to compensate the environmental and labor law differentials between so-called first-world countries and third-world countries. A hundred years ago, the US was a lot like China. Workers were routinely maimed and killed in operations like mining and railroads. Pollution was rampant, even the food was intentionally polluted. Still is, but that is a discussion for another day. Companies could dump waste directly in the ground, lakes, streams, rivers or the sky. The good news is that the adaptive capacity of the US system was directed to fix some of the environmental damage.

Secret law and secret courts are more arbitrary powers in a system plagued by conflicts of interest compounded by arbitrary powers. The people who wield the powers have strong incentives to increase them, while system engineering to improve function is all but impossible. "Improve system function" could include figures of merit like maximizing overall wealth generation, rather than maximizing wealth concentration, improving education and healthcare. Sustainability also would be a useful function to optimize, and it isn't deep shelter for hundreds of politicians, while everyone else glows in the dark and cold outside. It isn't surprising that these adaptive systems self-optimize to maximize entropy production for the insiders, going well beyond the point of sustainability in the process.

There is a lot more to say on the topic of applying system concepts to governments and economies, but not as much time as there used to be.

AlexT June 22, 2017 10:55 AM

I muss say that I have been reading about those secret laws for at least 10 years, so by no means a new development.

I really wonder how it never went to SCOTUS so far? Does anyone have more background on this.

In any case I find the whole concept a complete non starter. It seems so obviously unconstitutional?!

Clive RobinsonJune 22, 2017 11:49 AM

@ JG4,

If I am not mistaken, it costs the customer about 10 cents a pound to haul commodities across the US by rail freight. The price for hauling conex shipping containers from Asia to the US is roughly the same per pound for four times the distance.

Untill the loonies tried to escape the asylum with Brexit, shipping containers around the world was actually cheaper than that. As a consequence it was a lot lot cheaper than "storage costs" with the likes of "Big Yellow Box" or who ever your local equivalent is.

I found this out through a friend who decided to go "walk about" for a year. He decided that renting out his flat "unfurnished" would be a better deal than furnished (when you include insurance and the other bits and pieces). The problem was what to do with the contents.

I'd jokingly suggested one day when down the pub for a breakfast, that he live in a "ships container" from port to port as it would be cheaper than flying, pluss he'd have all hos gear with him thus in effect "feel at home".

Anyway it was one of those joke comments that when made start an itch. We both looked into the costs, and whilst I was correct there was the problem of actually living in a container when it's in a stack on ship.

The next time we chatted he had likewise worked out the problem, but he had also looked at it from just the storage and insurance view as well. He had found he could send a container slowley around the world over a period of a year and with full insurance would be less than one third of what one of those "Rent Storage Space" companies would be.

He'll be back in a few months, the only problem being he appears to have got stuck in NZ with a young lady... I guess getting his stuff re-directed back there will not be to much of a pain...

AnuraJune 22, 2017 12:37 PM

@JG4

If I am not mistaken, it costs the customer about 10 cents a pound to haul commodities across the US by rail freight. The price for hauling conex shipping containers from Asia to the US is roughly the same per pound for four times the distance. There are many, many products for which the cost of production is much lower in Asia than the 10 cents per pound shipping differential.

That's the cost to ship them to the port; you still have to ship it around the US. The reason most products are cheaper to produce is because of wage inequality, not because we actually consume fewer scarce resources. The closer the factories are to the consumer, the fewer the resources that will be consumed in getting it to them; it's just about finding a balance between economies of scale and logistics.

TõnisJune 22, 2017 4:46 PM

1. Secret courts are a disgrace, a disgusting shame.

2. Pursuant to the vagueness doctrine, any law that cannot be understood by a person of average intelligence is void for vagueness. Otherwise, how could anyone be expected to follow the law?

3. Judges don't interpret the law, they apply the law. The law is written in English. It does not require interpretation (translation). Anyone with a grasp of English can read the law, check defined terms, check the dictionary for definitions of words not specifically defined in the law, and consult books on grammar when necessary to understand a law.

4. There is no such thing as "case law," only case history. Attorneys in black dresses do not have the authority to create law, only to apply the law (as stated in #3).

5. When the criminals acting in the name of their government start acting like enemies of the people by enacting disgusting, offensive laws, Americans have recourse -- as jurors. Next time "the court" attempts to subject one of your peers to a trial by government instead of a trial by jury, when it conspires with the prosecution and offends the sensibilities of average moral people, for example, to send one of your peers to prison for twenty years for the crime of wearing purple on a Wednesday, and you are a juror, vote not guilty. I stand ready to serve as a juror and to nullify all bad law. And yes, I, as a juror (not some attorney in a black dress) will decide whether it's a bad law and vote my conscience. There is nothing any judge can do to change my not guilty vote. Jurors have the raw power to acquit defendants regardless of what any judge opines.

http://fija.org/ (I'm not a member or in any way affiliated)

GregJune 23, 2017 12:35 PM

Secret courts and secret law are just the logical extension of permitting governments to engage in secret acts. All violate the foundation of government authority in the (informed) consent of the governed. Security researchers know that secrets (and privacy) generally are a human right necessary to free and fair competition for scarce resources. Personal security is essential to the definition of "person", so when a collective protects their actions with secured boundaries it becomes legally much like a person, and needs to be treated as an equal under all the laws--in the same sense that Magna Carta made the King beholden to the Common Law. Either one governs with just authority, or one is a independent (and possibly outlaw) person, but you cannot have both.

65535June 25, 2017 9:52 PM

I agree with Bruce S. the 702 ruling was a miscarriage of justice.

“…one Kafkaesque ruling, a defendant was denied access to the previous court rulings that were used by the court to decide against it: [See excerpt from above] …This kind of government secrecy is toxic to democracy…." -Bruce S.

I agree. The USA is not in a state of 'Martial Law' and the use of secret laws in today’s climate is not useful or helpful to security. This situation creates a “One-way mirror” where the government can see all civilian actions but the civilians cannot see the government’s actions. This is the opposite of how democracy should be handled.

@ RonK

“I think it's quite possible that a totalitarian nation rising from the ashes of American democracy could very well survive a long, long, time..”

That is an ugly possibility and a good reason to eliminate secret laws.

@ Bob Gort

“Secret law is not just toxic to democracy, it is a contradiction in terms..”

That is very true. It is a “Catch 22” situation that is a reason to abolish secret laws [as other commenters have indicated].

@ Albert

It is important to note that the FISA Court judges serve seven-year terms, and are appointed by the Chief Justice of the United States (that is, of the Supreme Court). …follows that the decisions by FISA will mirror those of the Appointer. AFAICT, FISA judges are -not- non-partisan with regard to political parties...FISA Court judges hear only government arguments. This is akin to Grand Jury proceedings, which is one of the worst systems in American jurisprudence and should be abolished… To establish trust in a government, one needs more openness, not more secrecy.”

That is a good summary.

@ Just Passin' Thru

“I do not see how the decision you mention can possibly pass 6th Amendment scrutiny, specifically with regard to the right of the assitance of counsel. The assistance of counsel is useless if prevented from knowing and arguing the law.”

That is an astute observation. Secret laws void parts of the US Constitution.

@ Clive Robinson

“Importantly capitalism can not exist without a degree of socialism to build the roads and other infrastructure capitalism is critically dependent on. Thus we need a mix of "socialism" with a "small s" and capitalism with a "small c". If either gets out of balance and overcomes the other then it will not just be the economy that suffers...”

That’s a reasonable balance. Extremism is always destructive.

@ Greg

“Secret courts and secret law are just the logical extension of permitting governments to engage in secret acts. All violate the foundation of government authority in the (informed) consent of the governed. Security researchers know that secrets (and privacy) generally are a human right necessary to free and fair competition for scarce resources.”

I agree on that and it is a good reason to abolish secret laws.

Wesley ParishJune 28, 2017 6:24 AM

FWVLIW, feedback is a "vital interest" of the living being; this can be illustrated by the quality of life suffered by the victims of Hansen's Disease frequently termed "leprosy", where the feedback of the nervous system is truncated and eventually terminated. My mum told me tales of what happened when that nervous system feedback is truncated - a man whose toes fell off because they became diseased and he could not feel the pain; a child who rolled into a fire while sleeping next to it, and suffered third-degree burns.

What has feedback to do with secret laws?

The habit of referring to case histories is a feedback cycle. Case histories that produced a satisfactory outcome are constantly referred to; case histories which did not, are generally ignored.

Secret law cuts away that feedback cycle: it is secret in all aspects, so it does not pass through the constant referral that all other law is subject to, and thus the constant correction that all other law is subject to.

It can be influenced by other law, but it cannot visibly affect other law.

On the other hand, the habit of not referring to it, overflows to the habit of cross-referencing all available case histories. Learned helplessness, it is termed, and institutionalization is another term, and there are others as well.

In one of the textbooks I read extensively during my initiation into the mysteries of neuropsychology was an experiment I found distasteful: a couple of kittens were placed in a couple of baskets connected by a balance rod on a central fulcrum. One had holes for its feet, so it could move around; the other didn't. One kitten grew up to be a normal vigorous cat; the other was a permanent invalid.

That's what the US executive branch has intended for the US legislative branch.

mostly harmfulJuly 18, 2017 11:48 PM

The Office of Legal Counsel and Secret Law, by Jameel Jaffer, July 18, 2017, https://www.justsecurity.org/43253/office-legal-counsel-secret-law/

Excerpt/summary:

On Tuesday morning [2017-07-18] in Washington DC, a federal district court will hear argument in a case that presents the question whether the OLC [Office of Legal Council] has an obligation to publish an index of its final written opinions, and to consider those opinions individually for possible release, even in the absence of any FOIA [Freedom of Information Act] request. (The Knight Institute represents the plaintiff.) The case, called Campaign for Accountability v. DOJ, doesn’t involve a conventional request for records. Instead, it involves an effort to enforce FOIA's "reading room" provisions, which impose an affirmative obligation on federal agencies to publish their final opinions, orders, policies, and interpretations. Forty years ago, in Sears v. NLRB1, the Supreme Court observed that these provisions reflect a "strong congressional aversion" to "secret law," and it held that they require agencies to publish, even in the absence of any request from a member of the public, "all opinions and interpretations that embody [the agencies'] effective law and policy."

1. IANALNAL, but I suspect Jaffer's article confuses the petitioner (first party) with the respondent (second party) in the 1975 SCOTUS case. Unless I'm mistaken, the correct citation is NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). [ http://caselaw.findlaw.com/us-supreme-court/421/132.html ]

† "I am neither a lawyer nor a librarian."

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