Dorf on Law

KSM (non)Politics

noreply@blogger.com (Michael C. Dorf) — Fri, 20 Nov 2009 06:21:00 +0000

By Mike Dorf

I don't have much to add to the substantive discussion--sensible and otherwise--of the Justice Department's decision to try Khalid Sheikh Mohammed in a civilian court. I do want to register what will undoubtedly be seen as faint praise for what I imagine must have been the integrity of that decision. Here goes:

1) The Obama Administration's conservative critics think that any backing off from a policy of military detention and military tribunals is weakness if not treason. Nuff said here.

2) Meanwhile, critics from the liberal side (a group that often but not always includes yours truly) will not be nearly as pleased as one might expect from this decision. KSM is probably the highest-ranking Al Q'aeda operative to have been apprehended since 9/11 (or ever). He was waterboarded 183 times. Thus, if there is any 9/11 suspect as to whom there are serious security and evidentiary issues in civilian court, it would seem to be KSM. And yet the govt plans to give KSM a civilian trial but NOT to provide civilian trials to all Gitmo and Gitmo-equivalent detainees. For liberal critics, this raises the question of who is more difficult to try in a civilian court than KSM. They suspect that the answer is no one, making the decision to use even new and improved military tribunals for anyone else problematic.

Compounding matters, the near-certainty that KSM will be sentenced to death will undermine any PR benefit that might have accrued among domestic death penalty opponents and Europeans who were most troubled by the military detention and trial regime. Add to that the delay in closing Gitmo and it seems that, as far as criticism from the left is concerned, the KSM civilian trial is at best a bad PR case that the Administration can only hope to manage.

Thus, no one is likely to be pleased by the current suite of detainee decisions by the Administration. Which brings me to my main point: The politics of this latest confluence of decisions and announcements is so bad for the Administration that one can only assume they were not made on the basis of politics but were instead the result of a judgment about what would be best on the merits. Faint praise perhaps, but praise nonetheless.

Future Generations of Europeans and Americans

noreply@blogger.com (Neil H. Buchanan) — Thu, 19 Nov 2009 12:15:00 +0000

-- Posted by Neil H. Buchanan

My latest FindLaw column (available here later today) revisits one of my favorite policy issues: public investments in infrastructure, education, and so on. I used my recent travels in Europe and the U.K. as an anecdotal complement to some publicly-available research that demonstrates the extremely precarious state of the public capital stock in the United States. My own academic work also has covered this topic, including this law review article from 2006 and this work-in-progress that I am developing for publication (I hope) next year.

It is one thing to experience the effects of the decaying U.S. infrastructure (as all Americans do on a daily basis), but it is quite another to see how much better it could be. I therefore describe in my column just how different an experience it is to travel in Europe, compared to traveling in the U.S. What I found especially interesting was that Bilbao, Spain's small airport was quite modern and was connected to the city via an efficient and simple bus system. To an American, noticing that the airports in Germany and Austria are modern and efficient is perhaps unsurprising, since we generally accept the stereotype of Germanic efficiency. But when Spain -- which is only one generation removed from a corrupt fascist regime, which has never been thought of as an economic powerhouse, and which currently has even higher unemployment than the U.S. -- is able to maintain a decent public sector even in one of its poorer regions . . . We have a long way to go.

The academic purpose of the trip, however, was to develop my work on intergenerational justice. In presenting my work to academic workshops in each of the countries that I visited, after describing the basic issues that I address, I asked my audiences to tell me whether the standard U.S. political move to justify all policy initiatives as being good for "our grandchildren" was common in other countries. Scholars and students from all over Europe and South America indicated that the "future generations" meme was simply not part of the political conversation in their countries. Even acknowledging the non-systematic nature of the evidence that I gathered, it was truly surprising that none of my listeners indicated that there was any political currency to appeals to intergenerational obligations in their countries.

(This was particularly interesting in the environmental context, because the commitment to policies that sacrifice current comfort for long-future payoffs is manifest throughout Europe. One scholar from Portugal (who had attended a university in Spain) told me that it was actually rather difficult to figure out why Iberian policies were so environmentally friendly, when the typical citizens of Portugal and Spain were quite skeptical of, for example, the usefulness of separating trash into recyclables and non-recyclables.)

By contrast, consider the op-ed by Bob Herbert from Tuesday's New York Times, which was my hook for the FindLaw column. Even though Herbert was really talking about policies that will have immediate benefits as well as benefits that will begin to show up long before even the Baby Boomers have died, he framed the entire column around the idea of what kind of world today's toddlers will inherit when they enter the work force twenty years from now. Similarly, Sen. Joe Lieberman's justification for opposing the health care bill relies on the idea that deficits (which, of course, would not go up under that bill) must be avoided in the name of future generations. This rhetorical move by both liberals and conservatives is, I now have reason to believe, uniquely American.

This means, of course, that we have an especially odd juxtaposition between rhetoric and policy in the U.S. and Europe. In the U.S., we talk incessantly about our obligations to the future; yet we consistently fail to enact policies that would clearly benefit us in the immediate-term, medium-term, and long-term future. In Europe, they apparently do not obsess about their children and grandchildren; but they enact policies that are much more oriented toward the future. Actions really do speak louder than words.

Who May Deem a Woman an Egg-White? A Karamazovian Inquisition in Chancery

noreply@blogger.com (Bob Hockett) — Wed, 18 Nov 2009 06:52:00 +0000

By Bob Hockett

Sherry’s thoughtful post last Monday, November 9th reminded me of a couple of equity-rooted considerations that have occasionally floated before my mind, in connection with the morality and legality of abortion, ever since first encountering the conscription argument in Judith Jarvis Thomson’s influential article on the subject. Perhaps these considerations will be of interest to DoL readers, and thereby contribute something of value to the conversation initiated by Sherry’s many wonderfully thoughtful essays, articles, and posts on this profoundly fraught subject.

Equity jurisprudence, our lawyer friends in particular will recall, is especially well known for the many colorful maxims and ‘doctrines,’ as well as such institutions as the trust, which it has contributed to the commonlaw tradition. Most of these contributions bear a distinct moral flavor, as manifest not only in their contents, but even in their very terms. And this for its part is no accident, as the Chancellors who long administered the courts of equity often had training in the moral theories of their day.

So the ‘fid’ in ‘fiduciary,’ for example, stems from the Latin ‘fide,’ or faith – ‘faith’ as in ‘faithfulness,’ ‘reliability,’ ‘trustworthiness.’ And this is the very faith that we have in mind when we employ the morally charged phrase ‘good faith’ whether in ordinary parlance or as a legal term of art. Like observations hold in turn of the ‘justice’ implicated by the equitable doctrine of ‘unjust enrichment,’ the ‘cleanliness’ referred to by ‘the clean hands doctrine,’ and so forth. One could adduce quite a few examples, as I shall be doing in a work I am currently drafting on the subject.

Now two equity doctrines that I find particularly attractive – and of which the law has made much use – seem to me nicely implicated by the debate occasioned by the conscription argument in discussions of the morality and legality of abortion. And what is most interesting, perhaps, is how the second one in a certain sense ‘check mates’ the first on at least one possible reading. It is this tension that I hope might occasion additional helpful discussion on this site and perhaps beyond.

First recall the character of the conscription argument, a wonderfully pregnant (sorry – pun foreseen but not quite intended) variation on which Sherry presents in her post: The argument’s guiding idea is that, even conceding that the human embryo or fetus bears moral interests – on any of what might be any number of ethically compelling grounds – this cannot of itself suffice to underwrite a claim to the effect that a woman is under obligation to make her body available to sustain and carry that 'interest-bearer' until sustained life is possible outside of the womb.

The reason is that there are literally thousands of perfectly innocent adult human beings who through no delict of their own have need of externally supplied life-sustaining functions ordinarily supplied internally by humans’ own organs. And yet very few argue that those faultlessly unfortunate persons have claims on the organs of the more fortunate. For to argue thus would be effectively to argue that the bodies of the healthy may legitimately be conscripted to aid the unhealthy. And few seem to wish to argue that.

(One legal philosopher who I think has argued this is Eric Rakowski at Berkeley. And I should confess that I myself have wondered whether there might not be a moral obligation to donate organs or the temporary use thereof even prior to death under some circumstances. But let us leave this to one side for present purposes.)

Why, then, the conscription argument concludes, should the case of the unborn be any different from that of the already born? Do we not have here further evidence of the claim that many political conservatives, who often support capital punishment and wars of choice while opposing social safety nets, are 'pro life only until you are born'? To hold that a woman must supply her body to the cause of life-support to a fetus or embryo, the conscription argument concludes, is effectively to treat her as what I'll call an 'egg-white,' affording gratuitous nourishment to the ‘yolk’ that is growing within her, until such time as a physically autonomous human life has formed.

Enter now the first envisaged intervention from equity doctrine. In a comment appended to Sherry’s Monday post, Sam Rickless queries whether the ready availability of effective birth control might not diminish the force of the conscription argument, at least in cases of voluntary sexual activity. One way of interpreting this query, I think, is as asking whether the equitable doctrine of ‘induced detrimental reliance’ might not have application in some cases, in such manner as might diminish the conscription argument ‘s force in those cases. (It would not, of course, touch other arguments for leaving the choice with the woman, which are of course many but not here under discussion.) The idea then would be that bringing the dependent life into existence through an act that could easily (and that caveat is of course crucial) have been engaged in nearly identically without bringing that dependent life into existence is somehow morally different: a contraception-based variation on the ‘you [avoidably] break it, you buy it’ idea.

Now what to make of this argument? Well, I think it bears an initial intuitive bite like all equitable arguments seem to me to do. But now comes the second equitable doctrine, which on one reading might tend to undermine the utterability of the argument that proceeds from the first equitable doctrine - or at least to shrink the class of those who could legitmately utter it. This doctrine engages at the very moment that somebody might open his – yes, his – mouth to enunciate an argument sounding in the first doctrine.

Which doctrine? I have in mind here the venerable ‘clean hands’ doctrine, briefly mentioned above. Pursuant to this line of thought, one who is no differently situated, putative-culpability-wise, than is she whom he asserts to be culpable, simply ‘will not be heard’ – that’s how the courts put it – to lay the relevant charge of culpability. It’s a bit like a variation on the ‘people who live in glass houses’ proverb, not to mention the ‘do as I say, not as I do’ taunt, and the venerable ‘why do you find fault with the speck in your neighbor’s eye when you’ve a beam in your own?’ challenge. You lack standing to level a charge, if you too are subject to that charge, unless you level it at yourself just as readily as to another.

So how does this doctrine find application in connection with the conscription argument? Well, note that the predicate to application of the induced detrimental reliance claim just countenanced is that reliance has indeed been induced. And if indeed it has, then it would seem there is at least as much reason to say that the male party to the transaction that issued in the reliance has done the inducing as that the female party has done. (Indeed there are many cases - rape conspicuous among them - where the male is solely responsible.) Yet nobody – certainly no male – seems ever to argue that fathers are obligated to give their bodies over to fetal or embryonic life support.

Now one reason that arguments of the latter sort are not encountered obviously would be that we don’t as yet seem to have means of actually enabling male bodies to afford the mentioned form of support. (If we did, rape-caused pregnencies might not occasion the dilemma they do for many abortion-opponents.) Perhaps one day we will have such means, and perhaps, if so, that will be the day that we find ourselves able more seriously to parse out how much in the way of present day argumentation about abortion is attributable to disgusting and altogether condemnable feelings or attitudes of male entitlement, and how much proceeds in good faith from more honorable springs.

But as things stand at present, and strictly personally speaking, I find it a bit difficult, on what I suppose might be described as 'vicarious' clean hands grounds, to imagine myself saying in clean conscience to a woman, ‘you must consult not only your own conscience, but also my opinion, in deciding how to react to your pregnancy.’ At least I find this difficult while knowing, as I do, that I could be equally or more responsible than a female partner for inducing the reliance of a life upon the body of that partner herself, while not being even so much as potentially hoist by the petard of my own moral assertion.

So while I find that I perceive all life - including all nonhuman life - as sacred, at all stages from start to finish, I find also that there are some propositions concerning the decisions of others that I fear to predicate, without more, on that commitment. In Karamazovian terms, I suppose that means I'd make a better Alyosha - recall that his only reply to his brother Ivan's posing a seemingly unanswerable moral dilemma was to kiss him on the cheek - than Inquisitor.

What then do I - yet again provisionally - conclude? Well, my only ‘conclusion’ thus far is, in addition to provisional, rather more practical than theoretical in character: I have made it a practice thus far to abstain from thinking myself qualified to ‘have an Inquisitor's say’ in the deliberations of those I know (and a fortiori, those I don’t know) about what to do in response to problematic pregnancy. I confess to not knowing what more to say. Am I merely ducking a question that I ought – and am equipped – to address? Truly, I do not know. I feel a bit like Alyosha Karamazov or 'The Idiot' - Prince Myshkin - on this.

Please note that none of what I have said here is to say that I’ve not readily acted in the capacity of a loving friend and ‘sounding board’ for those comparatively few dear friends who have blessed me by actually requesting my counsel on such profoundly sacred and personal matters. It’s only to say I’m reluctant to volunteer unsolicited ethical considerations in such cases – even to myself (who feels he ought to abstain even from soliciting them from himself). Knowing as I know that at present I never could actually be in that unimaginably poignant position in which only a woman can be, even while I could be just as responsible as anyone for inducing a pregnancy, I simply don’t know what or how to opine ethically here. My hands, in a certain sense, feel as though they could never be clean in the requisite sense, and so I'm reluctant to try to employ them.

I’ll close, then, with a tentative answer to one question the title to this post might invite: Can a woman justly - equitably - be expected, on moral or legal grounds, to serve as an egg-white? Tentative answer: Well, if so, then until men can be pregnant, it probably won’t be for men to be those who say it.

Anonymous Campaign Donations Revisited

noreply@blogger.com (Michael C. Dorf) — Tue, 17 Nov 2009 08:08:00 +0000

By Mike Dorf

In my latest FindLaw column, I examine a recent Ninth Circuit decision, Doe #1 v. Reed, that rejected a claimed First Amendment right of anonymity for people who signed a petition to have a domestic partnership law repealed. I argue that the Ninth Circuit essentially missed the true strength of the plaintiffs' claim, but that the court may have gotten it right after all. I nonetheless say that, as a policy matter, government ought generally to allow anonymous politicking. The wishy-washiness of my position--tentatively against the constitutional claim but in favor of the policy claim--reflects what I regard as the difficulty of the question.

To be clear, I don't regard the underlying merits as difficult at all. I think that laws protecting same-sex domestic partnership shouldn't be repealed; they should be extended so that we have marriage equality. Indeed, as I've said many times before (e.g., in 2004, here, and in 2008, here), I regard the denial of the right to same-sex marriage as a denial of equal protection. But of course the answer to the question whether there is a right to anonymous petitioning cannot be "yes" for petitions one favors and "no" for petitions one opposes.

So, why do I regard the anonymity issue as close? As I explain in the column, partly because the constitutional law in this area is equivocal: Government can demand disclosure of the identity of campaign contributors (except for small unpopular parties whose supporters run a serious risk of harm if they are thus "outed"), but government must allow anonymous pamphleteering. The column asks whether petition signing is more like pamphleteering or more like donating money to a campaign.

Here I want to add a note of normative skepticism about the campaign finance law in this area. The basic idea is that government requires disclosure of the identities of campaign contributors to prevent corruption. But at least in federal elections and state elections that utilize similar caps on contributions, this fear is often unrealistic.

In the 2008 election, an individual could contribute up to $2,300 per candidate per election (meaning $4,600 total if one gives to the same candidate in a primary and a general election), plus a maximum of $28,500 to a national party. Taking account of the possibility of supporting multiple candidates in different races and of the stand-alone caps, an individual could give up to $108,200 over two years to candidates and PACs. That's a sizeable chunk of change, and the public clearly has an interest in knowing who has given money at this level so it can monitor elected officials to see whether they are doing special favors for such big donors.

However, most people who give to political campaigns give smaller totals. Do I really have an interest in knowing which of my neighbors gave $500 to Barack Obama, Rudy Giuliani, Hillary Clinton, or Mike Huckabee--as I can find out in a few seconds via fundrace.huffingtonpost.com? There is really no likelihood whatsoever that the President, or even a corrupt House member, would do special favors for such relatively small donors. Indeed, it seems that in order to get the sort of favors that one expects from, say, the Governor of Illinois, one needs to give money at well beyond the levels permitted for federal elections--and cash in brown paper bags does not get reported to the FEC in any event. (Illinois does not cap campaign contributions for state elections, a policy that has been working wonders for the state, corruption-wise. But I digress.)

Meanwhile, the HuffPo map can definitely chill political contributions. Let's say you live in an overwhelmingly Democratic neighborhood but want to support a Republican candidate, or vice-versa. Even if you don't fear violence, intimidation or a boycott of your business from your neighbors, mere social awkwardness could lead you to think twice before writing the check. Sure, some hardy souls will want to state their dissenting opinions openly, but many will not.

To my mind, therefore, the only decent arguments for campaign finance disclosure even for small donors are administrative ones. The FEC lacks the staff to anonymize contribution info before putting it into the public domain, even as there is an interest in such anonymized information. E.g., how much money for Candidate X came from suburbs versus cities? How much came from gun owners? Etc. Throwing the raw donation data out into the public is a form of crowd-sourcing that allows people to run their own data analysis. But we shouldn't kid ourselves that it's costless: The possibility of chilling pocketbook political participation is real.

The potential political twist here is that conservatives tend to be more concerned than liberals about protecting campaign contributions as a form of political speech, but conservatives are also more skeptical of the ability of government bureaucracies like the FEC to perform their task competently and in a non-partisan manner. So conservative instincts cut both ways here. Meanwhile, liberals who don't overly fear that disclosure will chill campaign contributions are also more inclined to think that a government agency can act as an honest broker for information. So the stakes on each side are lower for liberals, but there is no clear answer for them either.

Bottom Line: I am somewhat uncomfortable with the disclosure of small donors' info, even as I am somewhat uncomfortable with the idea of withdrawing from the public domain the raw donation data needed to answer legitimate questions about political influence.

The Credit Card "Business"

noreply@blogger.com (Michael C. Dorf) — Mon, 16 Nov 2009 07:09:00 +0000

By Mike Dorf

As various commentators have noted, the traditional business model of credit card companies is peculiar. Here is how James Surowiecki described it in a May issue of the New Yorker:

Their best customers aren’t those who dutifully pay off their balance every month; instead, they’re the ones who charge a lot and pay only a little every month, carrying a sizable balance and racking up interest charges and late fees. These are the “revolvers,” and the credit-card business feeds on them. Credit-card companies don’t necessarily want revolvers to pay off their debts; if they did, there’d be no interest or fees to collect.
. . . The catch is that while revolvers are the companies’ best customers, they’re also more likely to default, which would make them the worst.

Accordingly, Suroewiecki and others have noted, with increasing default rates, the credit card companies have been re-thinking their business, trying to find ways to shed default risks and to make money from their regularly paying customers, or what I shall call "free riders."

Right now, I am a free rider. I pay my balance in full on time every month, and thus I get the benefit of the float on my purchases along with the convenience of not having to carry too much cash. For this I pay essentially nothing. I could pay literally nothing but I use a card with a small non-zero annual fee because it enables a small percentage of my charges to go to a favorite charity; however, I doubt that the annual fee covers the credit card company's administrative costs, even when one takes account of the fees charged to merchants.

So, how could the credit card companies make money from people like me, i.e., good credit risks? They could start charging merchants a lot more for credit card use, although the downside here would be reduced demand. At some point, merchants would have to charge higher prices for credit than for cash (as some already do, and not just as a way of defrauding the government of sales tax), and that would in turn lead to less credit card usage by customers.

Another approach would be for credit card companies to start operating more like conventional banks, by charging all customers interest on their loans. In this model, if I make a purchase on Nov 1 and pay the bill on Dec 1, I would pay a month's worth of interest on the purchase. The disadvantage here is that it too will reduce demand for credit cards, as consumers like myself--who use credit cards as a convenience rather than as a means of borrowing money--would switch to cash and debit cards. Raising fees for all credit card users is another option with the same tradeoffs, although consumers could be left without real alternatives if banks start charging or raising fees for cash withdrawals and debit card use.

Various news stories suggest that the credit card companies have been experimenting with each of the above tactics but if my personal experience is a guide, they are also trying something else: They are trying to turn free riders like me into revolvers. Thus I doubt that I am unusual in getting cash-advance "checks" from my credit card company roughly once a week. And recently, I experienced what looks to be a more aggressive effort. I received a notice in the mail that my credit card had been compromised by a third party, though no fraudulent charges had been made. As a precaution, the company sent me a new card. To activate it, I called the number on the card and when I keyed in my account number, instead of getting an automated menu, I was re-routed to a "customer satisfaction expert." Here's a rough transcript of our ensuing conversation, after the preliminaries identifying my account and myself.

CSE: How may I help you today?

ME: I'd like to activate my card.

CSE: I can do that for you. It will only take a few minutes. [Sounding somewhere between disappointed and annoyed:] I see here that you pay off your balance in full every month.

ME: Aha.

CSE: While we're waiting, I'd like to tell you about our exciting 0% balance transfer and checking account deposit. What do you think you'd like to use yours for?

ME: I'm not interested, thank you.

CSE: You're not interested in saving money? That's especially surprising in this economy.

ME: Sorry.

CSE: Okay, your card is activated. Can I help you with anything else?

ME: No thank you.

CSE: Thanks for calling [credit card company]. Have a great day.

I don't know whether I was inadvertently kicked over to the CSE in the first place, but it wouldn't surprise me if this were a deliberate program to flag free riders and attempt to turn them into revolvers. If so, this seems like a bad idea. We free riders are free riders precisely because we understand the hazards of profligate use of credit cards, teaser rates, and so forth. It's not that we oppose credit. Most of us have mortgages. Many have car loans, etc. It's just that we realize that the whole credit card business is built upon getting people in over their heads on high-interest loans. So I doubt very much that the sales pitch will work on other long-time free riders.

Now I certainly could be wrong about that. After all, I'm not an expert in the credit card business or even in finance more broadly. But still, it's not as though the people in this business have been doing a very good job lately--unless you define the business as "getting bailout money from the government." So if I am right that the plan to turn free riders into revolvers will largely fail, and if the credit card companies continue to worry that people who used to be reliable revolvers will, for the foreseeable future, continue to pose too high a risk of default, then we are likely to see the companies make greater use of the fees and interest strategies, even with the resulting decreased overall use of credit cards.

It's tempting to view such a movement as economically harmful in the short run: Credit card use generally leads to increased consumer spending, which is needed for a robust economic recovery. But in the long run, it's hard to argue that our economy should be dependent on people taking on high-interest debt beyond their means to pay.

The Master's Tools: Religion and Taxes

noreply@blogger.com (Neil H. Buchanan) — Fri, 13 Nov 2009 08:06:00 +0000

Posted by Neil H. Buchanan

In a post here earlier this week, Mike Dorf continued his discussion of his colleague Steve Shiffrin's new book, The Religious Left and Church-State Relations. At the risk of over-simplifying, Mike's ultimate point was that there is at least a serious danger -- if not an extremely high probability -- that attempts by Christian liberals to engage with the Religious Right on their own terms will do more harm than good. He concluded his post: "The master's tools will never dismantle the master's house." Here, I will engage with the substance of the claim that the religious left is the "right" group to fight the Religious Right (Shiffrin's argument having been, as I understand it, that the secular left should stand aside because they cannot effectively engage with the other side).

As a minister's son who has been an atheist since roughly age 17, I should say at the outset that these arguments are very familiar and extremely salient. The rise of the Religious Right coincided with -- but in no way caused -- my departure from the church, and their arguments were always quite puzzling to me. The thing that had made it difficult to leave the church, after all, was the message of love and caring for the least among us that constituted the beauty at the core of Christianity. While it was no longer tenable to remain a member of an organization whose core notion of faith I did not share, I at least liked the idea that there were people who held that faith and who learned through that faith the importance of being loving, generous, modest, caring, etc.

The messages of hatred and exclusion that emanated from the likes of Swaggart, Falwell, et al. were thus a shock. The disconnect was stark, but over the years I simply came to accept the idea that some people were using (what I continue to believe) was an inherently liberal message for reactionary purposes. It always, therefore, seemed somewhat hopeful when a religious figure would emerge to reaffirm the message of social justice. It never seemed to change anything, but the battle seemed worth fighting.

In 2002, a tax law professor made national news by arguing that Judeo-Christian ethics required a progressive tax code. Susan Pace Hamill, who serves on the faculty of the University of Alabama School of Law and who is a committed Christian, had spent her sabbatical at a seminary studying and writing about Christian social justice. She took aim in particular at Alabama's state tax system, which was (and -- spoiler alert! -- still is) one of the most regressive in the country.

Hamill's work gained the attention of Alabama's Republican governor, who aggressively campaigned to have the state's tax laws brought more closely into line with what he and Hamill agreed would be an approximation of Christian justice. Hamill also traveled the state, preaching in church after church her scripture-based view that all good Christians had no choice but to agree that Jesus would want Alabama to have a progressive tax system.

The result was a crushing defeat for the progressive forces. As I recall, the final vote statewide was something like 65-35 against. Even the poor had voted against the measure. The governor was also defeated for re-election. (My memory is somewhat faulty here, because I cannot recall whether he was defeated in the same election or the subsequent one.)

It was, of course, possible to draw from that defeat only tactical lessons. Maybe the measure was too ambitious and should have been passed in smaller doses. Maybe the change in rates should have been the focus, rather than also increasing overall revenue to cover a budget deficit. Maybe there was no way to defeat the national anti-tax Republicans who targeted the election. Still, explaining away a landslide is no easy task. When one considers that Alabama is one of the most religious states in the country, moreover, the state should have been fertile ground for an argument like Hamill's.

Even so, it is undeniably true that such a tax proposal never would have had a chance in Alabama if it had been pushed by a secular liberal on non-religious grounds. Shiffrin's argument thus at least gains some support from this incident, because a few (too few, alas) hearts and minds were won over by Hamill's scriptural arguments. (I should note that Shiffrin limits his argument to church/state relations, so it is probably more accurate to describe this as "Dorf's expansion of Shiffrin's argument.")

In addition, this might be a particularly bad example to use as a test of Mike's thesis regarding the master's tools. Using religious arguments in Alabama to push a point that secular leftists endorse runs very little risk of making the state even more prone to religiously-based political posturing, after all.

Nevertheless, the very reason I (and, I suspect, many readers of this blog) am aware of this otherwise-local story is precisely because it was a very prominent attempt to use religious arguments to make a left-friendly political point. It was not just the fervent churchgoers in Alabama who heard this message. The entire nation was told, in essence, that Christianity-based arguments are not only useful but correct. Mike's concern, which I obviously share, is that this ultimately bolsters the public's view that Christianity is the best -- if not the only -- way to view issues of public policy.

At the very least, it did not do much to make atheists more welcome in the public square.

[Meanwhile, I am off to Edinburgh, Scotland, tomorrow. "The Vatican of Presbyterians" awaits.]

A Polyvocal Legal Future for France and Europe?

noreply@blogger.com (Michael C. Dorf) — Thu, 12 Nov 2009 00:31:00 +0000

By Mike Dorf

In another Cornell Law School celebration of a recent faculty book, last week we examined Mitch Lasser's new book, Judicial Transformations: The Rights Revolution in the Courts of Europe. I was one of four panelists, along with French Justice Guy Canivet, Yale Law professor Alec Stone Sweet, and Syracuse Law professor Juscelino Colares. Here I want to say a few words about the book and about the larger question of legal pluralism that it raises.

Lasser begins by explaining the traditional understanding of constitutionalism in France, which is, to paint with a broad brush, Rousseauian rather than liberal. Believing in the existence of a general will best expressed through the legislature, relative to American constitutionalism, the French were oriented towards legislative supremacy. They had a form of constitutional review in the Conseil Constitutionnel but only prospectively and in the abstract. The Conseil did not, until very recently, entertain concrete cases of rights. Meanwhile, two other judicial/quasi-judicial bodies--the Cour de Cassation and the Conseil d'Etat--were responsible for concrete cases but the latter especially followed procedures that emphasized the primacy of the state rather than litigants.

That system has been under considerable pressure, as Lasser notes, from the European Court of Human Rights (ECHR), and over the last several decades, French courts--especially the Cour de Cassation under the leadership of Justice Canivet (now on the Conseil Constitutionnel)--have haltingly but clearly responded to the pressure by moving France firmly in the liberal direction. Thus today French jurists talk the language of fundamental rights in much the same way as the ECHR and constitutional courts the world over. Lasser's book does an elegant job of showing what a dramatic transformation that represents.

Lasser also pays some attention to another, seemingly quite odd, feature of the rights revolution in France and Europe: The lack of a clear hierarchy. Here I want to spin it out a bit more. To oversimplify:

1) At the European level, the ECHR competes for supremacy with the European Court of Justice (ECJ), the highest judicial organ of the EU. With substantially but not entirely overlapping geographic jurisdictions and no ability of parties to appeal the decisions of the ECJ to the ECHR or vice-versa, it is not clear who has the final say with respect to rights in Europe.

2) There is a similar institutional competition within France among the Cour de Cassation, the Conseil d'Etat, and the Conseil Constitutionnel.

3) The lines of authority between European courts and national constitutional courts are likewise unclear. The European bodies have clearly said that European norms trump national ones, and that national courts must accept EU and ECHR interpretations (as well as give them direct effect), but meanwhile, national constitutional courts have sometimes said that European norms, as creatures of treaty obligations, are subordinate to national constitutional norms.

Thus, in a country like France, there are arguably five different "final" authorities with respect to various fundamental rights, each with a legitimate claim to supremacy over the others in particular contexts. During his comments, Stone Sweet said of France in particular that this situation means that there is no legal order in France.

I disagreed and continue to disagree. It's true that there is no strictly hierarchical legal order, but there is a polyvocal legal order in France and Europe. Perhaps we are in a transitional period--much in the way that it took the U.S. Supreme Court some years to establish its authority over state courts with respect to federal law, a feat accomplished in 1816 in Martin v. Hunter's Lessee. If so, then eventually one of the European courts will ultimately prevail or national courts will treat the decisions of European courts as effective only subject to their own approval, with a showdown leading to one "Supremest" Court in France.

But that is not the only logical possibility. Instead, we could have competing interpretive power centers indefinitely. Yes, this would lead to some confusion about the state of the law when the various "supreme" courts disagree, but informal mechanisms would arise to deal with such disagreements. In the U.S., for example, circuit splits often persist for years and some legal questions never seem to be answered by any court. Meanwhile, polyvocalism could lead to a "race to the top" in the definition of fundamental rights, or at least to inter-court dialogue. Ultimately, if one takes the view--as I do--that courts typically define rights (and other legal constructs) largely in response to social forces, then the convergence of social pressures on multiple courts should keep their respective jurisprudences within shouting distance of one another. Legal pluralism, in this view, could last indefinitely.

A Tale of Two 'Marriages'

noreply@blogger.com (Bob Hockett) — Wed, 11 Nov 2009 09:00:00 +0000

By Bob Hockett

Martha Nussbaum gave an interesting talk at Cornell this past Friday on the subject of same-sex marriage, a subject which figures into her forthcoming book on 'the politics of disgust.' (This was the endowed Stevens Lecture, named for the same distinguished former Dean for whom Mike’s professorship is named.) The talk afforded a nice opportunity to raise a question that often has struck me, and that might be worth raising here too.

Begin with this observation: Much of the rancor that surrounds present-day argumentation and politicking over same-sex marriage looks as though it might be traceable to a tendency, when speaking informally about marriage, to run together two distinct categories. I’ll call these ‘civil’ marriage on the one hand, and ‘sacramental’ marriage on the other.

In ordinary parlance, I think we tend to have both categories vaguely and simultaneously in mind when we use the word ‘marriage.’ But in a pluralistic polity where church and state both are and must be kept formally distinct, the conflation gives rise to needless conundrums and avoidable ‘culture wars’ disputation – disputation that might be avoidable only by keeping the two senses of ‘marriage’ just as distinct.

Now, what are these two senses of the word? I think they are these:

So far as state functions are concerned, 'marriage' seems to have only a very thin meaning. It seems to mean, more or less, 'civil union.' That is presumably part of why we often employ the terms ‘civil union,’ ‘civil marriage,’ ‘civil wedding,’ and cognates almost interchangeably when speaking of marriage under the aspect of state functions. And most such talk about civil marriage, for its part, understandably treats the phenomenon in question as a matter of the benefits conferred upon society by the prevalence of committed relations and stable households, and of the state's accordingly having reason to facilitate or at any rate not hinder the formation of such relations and households. Against this quite minimal backdrop, it’s hard to see what objection anyone could have to consenting adults’ deciding their partners-in-union for themselves, without interference from others purporting to ‘defend’ marriage.

Within most if not all of our nation's many religious traditions, on the other hand, 'marriage' of course carries a thicker set of meanings – meanings that typically reach back into religious and ethnic history, and even today often attempt to reach well beyond here and now. The fact that marriage in fact is a full-blown sacrament within some traditions is illustrative of how fraught with transcendent importance, hence how 'rich' in cultural and even ‘metaphysical’ meaning, what I am calling sacramental marriage as distinguished from civil union tends to be.

Now the more I reflect on these differences, the more I find myself wondering why it is that the same word – ‘marriage’ – is used for the civil and the sacramental cases alike. Is it perhaps simply a holdover from earlier, less pluralist times, when church and state, though formally distinct, were pragmatically speaking a bit less so? Or does it perhaps reflect some ‘deep’ truth in the ‘communitarian’ case against liberal ‘compartmentalization’? (I hope not! But more of that momentarily.)

Then when I further reflect upon how running these apparently formally distinct categories together might also underlie much of the distasteful 'culture war' lather that always foams up around 'the debate over same sex marriage,' I find myself wondering as well whether it wouldn't be salutary simply to purge the word ‘marriage’ itself, as distinguished from ‘civil union,’ from state offices altogether.

Why not, in other words, treat marriage in its civil aspect as some economists and ‘advanced bus orgs’ profs do – as a sort of ‘business organization,’ vide ‘domestic partnership’ – and reserve the concept (and word) in its sacramental aspect to synagogue, church, mosque, or functionally equivalent sacramental office? In such case we would assign the proverbial 'justice of the peace' the task of conferring official recognition upon civil unions alone – when certain criteria that speak to matters of legitimate state concern are met, of course. And we would reserve the function of ‘marrying’ people to the synagogue, church, mosque or equivalent, of which there are more and more wondrous varieties each year, and which all have criteria of their own.

I should perhaps add that I am not here actually advocating these things, so much as wondering about and ‘Gedankenexperimenting’ with them. I am wondering whether such changes would be feasible, and whether they would be desirable if so.

One objection I can imagine would be that matters of political life on the one hand, and of culture on the other, are not as readily disentangled in our lives and self-conceptions as what I envisage here would require. A related objection might be that we – on some relevant understanding of who the 'we' here are – would not want to work such a separation even if we could, in that it would force a sort of multiple schizophrenia or 'compartmentalization' upon us that just wouldn't be good for our mental health or our persons. These would be ‘communitarian’-style objections, I suppose, and I suspect they would mainly come from the right (though of course they might come from the left or the center as well).

A third objection I can imagine might be thought communitarian-reminiscent, but would perhaps be more apt to come unambiguously from the center or left. It would be that if the change I am contemplating came in apparent response to attempted ‘Defense of Marriage Act’-type manouevering, its social meaning would be tainted with a whiff of recognition-denial effectively vindicating contempt. (Dr. Nussbaum brought a related point out nicely in response to my question after her lecture.) Just when a long-subordinated group is poised to gain some public recognition of the dignity of unions formed within it, the objection would run, this proposal would allow the taking of it away from them through a taking of it from all – a sort of cutting off of the nose to spite the face.

I am of course sympathetic to these possible objections, especially the third. But because so much of modern life, especially in a pluralist polity, involves so much 'compartmentalization' already, it isn't altogether clear to me that simply disaggregating currently muddled 'marriage' into state domestic partnership and ecclesial marriage components reserved to their respective spheres would appreciably increase the degree to which we already fall short of 'seamlessness' in our 'modern' lives. It also seems to me that we could easily enough take measures to make clear that the disaggregation is meant to afford long-overdue and now unavoidable recognition to church/state separation in the realm of domestic relations, rather than to afford state sanction to bigotry. But again these thoughts are tentative.

Perhaps I can make these points less abstractly by reference to a respectful email message I recently received from someone I do not know. He charged me with holding a ‘watered down’ conception of civil marriage, and went on to write:

Civil marriage is an institution derived from the complementarity of the sexes that exists when one man and one woman commit themselves, before the community, to each other and the possibility of children. Because the institution is rooted in the community and serves as the basis of the family, it is an essential component of the common good. The State has legitimate, indeed compelling, interests in ensuring a stable legal and societal framework for the creation of healthy families, providing a suitable environment for the development of children and in promoting social investment in the community.

Here are my tentative reactions:

On the one hand, the points are well taken, at least in relation to where American society seems largely (though as I’ll observe in a moment far from universally) to have stood in times not all that distant. It feels so familiar, and even comforting, to read these words; for they seem to close a breach that we generally experience as members of cultural or religious groups on the one hand, and citizens of a vast, polyphonic and secular polity on another.

But one riposte I am tempted to make is that as a political society the U.S. simply no longer has (assuming it ever had) that form of ‘unity’ upon which is predicated any ‘community’ that can reasonably be expected to share a thick, non-watered-down conception of civil marriage, and it is hard to see how we might make things otherwise without subordinating fellow citizens and ignoring our own constitutional values. The man/woman complementarity and possibility-of-children understandings, for example, might be thought by some to exclude marriage between people too old to bear children, while permitting committed polygamy of the Biblical variety. Yet U.S. law seems never to have been less than friendly to marriage between people with no intention of bearing children, while also being markedly hostile to Biblical-style polygamy. (As Sally Gordon, who spoke here recently in connection with Steve Shiffrin’s new book about which Mike has here written, has very well documented.)

I remain a bit less than certain, then, that civil marriage in the U.S. ever has been other than either watered down or expressive of the sacramental conceptions of some (principally mainline Protestant) religious traditions, at the frequent expense of other, quite venerable religious and philosophic traditions. And so it’s not clear to me that it wouldn’t be both politically preferable, and truer to our constitutional values, simply to recognize that as a civil category marriage is no legitimately thicker, values-wise, than domestic partnership, while all additional thickness that marriage bears is supplied by the married parties themselves and the ethical, religious, or cultural meanings they elect to invoke.

It might just be that a contemporary, more even-handed American society that’s true to its constitution would be more aptly characterized less as a ‘community’ than as a sort of confederation of communities (a Rawlsian ‘union of social unions’?), each of which is founded upon an ecclesial or other ethical subculture which speaks to those matters of heart, mind and spirit that are often – but not exclusively – the province of our religious traditions. In such case that which would unite our multiple communities would be a shared core of values of mutual respect, with which values many differing views of sacramental marriage, but only a fairly thin view of civil union, might be consistent. We could ritualize civil events in a manner reflective of the august dignity of our polity of equals, perhaps along lines suggested by Rousseau in his advocacy of a sort of ‘civil religion.’ But this would have to be a liturgical rather than doctrinal ‘religion.’

On that Rousseauvian note, let me close with an anecdote, from which the title of this post derives. The anecdote for its part derives in a sense from a sequence of historical events inspired in part by Rousseau, and narrated in the Dickens novel on whose title I’m riffing with the title of this post: the French Revolution, which serves as backdrop to Dickens’s Tale of Two Cities.

By a strange quirk of fate, I’ve been in attendance at a large number of weddings in France. And as many of our readers will know, French weddings since monarchy’s end typically come in two parts: First there is a civil ceremony, where a minister of state wearing a business suit and an impressive red sash unites the couple for purposes of the state. Here’s a clip from a favorite film that affords some indication of the setting for a civil ceremony:

Then there is an ecclesial ceremony, where a minister (or ministers) of synagogue, church, mosque or what-have-you perform(s) the appointed ecclesial rites.

Now as it happens, one of the French weddings I have attended was for ecclesial purposes (sort of) an ‘interfaith’ wedding between one of my two oldest and closest friends, who is American and secularly Jewish, and his fiancee, who is French and more or less secularly Catholic. (Do not let it be thought that I hold any attitude about their being secular. The fact is relevant only to what I shall presently relate of the ecclesial ceremony, and I am quite certain, in case it’s of interest, that my wonderful friends stand much greater chance of entry into any next world than I do.)

Now the ecclesial wedding ceremony for my friends, at which I read, was a somewhat awkward affair in the sort of embarrassed half-heartedness with which Rabbi, Priest, bride, groom, and most of their families recited the appointed texts. Not even the great antiquity of the impressive cathedral quite managed to dissipate the feeling of ‘dry ritual’ that pervaded the affair. I found myself almost wishing my friends had composed their own ritual, as many other friends of mine have done with great care and beauty.

My friends’ civil ceremony, on the other hand, seemed much more dignified than the ecclesial, if for no other reason than that there was no ‘just going through the motions’ involved. (And the sash was very impressive!) For these two close friends of mine, it was their deep personal commitment, and the French state’s constitutionalization of equal respect for persons irrespective of ecclesial affiliation or background, that mattered most. And the civil ceremony, though not associated with any thick conception of marriage as distinguished from civil union, was accordingly rich and liturgically meaningful in its own right – much more so in this case, I thought, than the ecclesial ceremony, which felt simply vestigial. Moreover, had my friends both been women, or both men, it would have been identically dignified – as would any ecclesial ceremony, I reckon, in a faith tradition that recognized same-sex unions.

Intriguingly, my other oldest best friend, who also is American and (Reform) Jewish but is practicing, also took part in an interfaith wedding – just this past summer, with his practicing Episcopalian fiancee. This wedding was officiated jointly by my friend's Israeli Rabbi and his fiancee's mother, who is an Episcopal priest.

The earnestness with which all parties in this case approached their appointed tasks, and the eagerly, even anxiously helpful efforts each officiant made to explain the meanings and histories and traditions of all liturgical elements contributed by each to this beautifully thought-out, ‘custom made’ yet tradition-redolent ceremony, were profoundly moving. Godliness seemed to be present at this beautiful wedding with a fullness I've rarely experienced. The civil ceremony, by contrast, was altogether bureaucratic.

And there, perhaps, you have in a nutshell the difference between paired church/state marriage ceremonies in pluralistic America on the one hand, and once monistic France on the other! Why not combine the best of both by according august but minimalist meaning to the civil unions available to all citizens, and recognizing privately adopted, synthesized, or even fresh-formulated meanings assigned by the parties themselves to more sacramental marriages?

Bone Marrow Transplants and Abortion

noreply@blogger.com (Sherry F. Colb) — Mon, 09 Nov 2009 20:30:00 +0000

Posted by Sherry Colb

In my column this week, located here, I discuss a case in which plaintiffs challenge the constitutionality of a federal criminal law that prohibits the provision of compensation to bone marrow donors. I consider the arguments for prohibiting markets in various zones of life and how the general arguments fare in the particular context of bone marrow donation.

In this post, I want to consider a very different question that transplantion cases always raise in my mind: what would it take for me to become "pro-life"? That is, under what circumstances would I be persuaded that the law would appropriately intervene forcibly in a woman's decision about whether or not to continue a pregnancy.

I would define "pro-life" for purposes of this reflection as agreeing with the proposition that at some stage of pregnancy (which might not be conception, even though the current pro-life movement in the United States has selected that stage), the right of the embryo or fetus to continue living trumps the right of the pregnant woman to stop being pregnant, that is, to remove the embryo or fetus from inside her body. For a nonviable fetus, of course, removal will result in death, but the right of abortion is -- in my view -- primarily a right to bodily integrity rather than a right to kill the fetus (and therefore would not extend to a fetus in an incubator).

My first reaction to the question (which I have, on occasion, encountered) is to say that so long as the embryo or fetus is not sentient, I do not believe that its right to continue living should trump the pregnant woman's right to stop being pregnant. We do not currently know precisely when a fetus begins to experience sensations, but at a point prior to that, I am convinced that a woman should have complete autonomy to decide how to proceed.

But what about after sentience? At this point, I share the belief of many that abortion becomes morally difficult. That is, an abortion in the first few weeks is qualitatively distinct from an abortion in the later stages of pregnancy. Once a fetus is sentient, remaining pregnant becomes less like creating a new person and more like providing life-support to one that already exists. In other words, to remain pregnant becomes like tissue donation, in which one's body is used to give life-saving assistance to another.

When the being inside a woman is sentient already, a legal requirement that she remain pregnant is, in my view, tolerable only if every person who needs blood or tissue donation has legally protected access to such materials too, just as the fetus does. Stated differently, a fetus should not have the right to use a woman for life support unless everyone (not only women and not only pregnant women) are "on deck" to provide biologically invasive life-support if needed as well.

Such a world would mean that we would not need to have a debate about compensating bone marrow donors (or donors of organs after death). Availability for such donation would be mandatory and uncompensated. Whenever anyone needed blood, bone marrow, or another renewable bodily tissue, for example, the next biologically compatible person on the list (with an exclusion for the currently pregnant) would be contacted, screened, and made to donate.

Would such a society be a desirable one in which to live? For many, the answer is obviously no. If a person is healthy and happy, he probably prefers not to be "on call" in this way for sick people. Indeed, it seems, many people oppose even the minimal "on call" feature of mandatory health insurance, in which the healthy must contribute to the pool of money available to care for those who are or do become sick. A mandatory tissue donation system smacks of totalitarian socialism, in which what is yours presumptively belongs to the collective, and the collective can confiscate it at will and through violence, if necessary.

In such a society, it would seem to me acceptable (to the extent that any of it is acceptable) to require women to carry pregnancies to term after a fetus becomes sentient, if the woman's life or health is not in danger (just as only tissue but not organ donation is part of the system I describe above). Such a system is, of course, utterly alien to our current law, which -- rather than compelling marrow donation -- impedes patients' access to willing donors who want to be compensated for their trouble. The only context in which prohibitions against abortion would be something other than a denial of equality, then, would be a context in which everyone -- not just fertile women who become pregnant -- is a vehicle through which the collective preserves existing lives, by force, if necessary.

Funding Abortions, Wars and Churches

noreply@blogger.com (Michael C. Dorf) — Mon, 09 Nov 2009 06:40:00 +0000

By Mike Dorf

Now that the House has approved the Stupak Amendment--which forbids health insurance plans that will receive federal funding under the reformed American health care system from covering abortions--it's worth reflecting on why, exactly, this sort of legislative provision is considered permissible even by an otherwise (mostly) pro-choice country. The core of the argument goes like this: The law permits abortion on grounds of personal choice, but many people regard abortion as immoral, and they should not be made to subsidize conduct they regard as immoral. That is, more or less, the principle on which rest the Supreme Court decisions allowing rather severe restrictions on government funding for abortion. And it is also the principle one typically hears in public debate.

To be sure, the principle is often invoked by people who would go much further. Most of the legislators who oppose government funding of abortion would also favor making abortion illegal were constitutional doctrine not (currently) an obstacle to that approach. Congressman Stupak himself, for example, is "pro-life" rather than "pro-choice-but-anti-subsidization." But let's put that point aside. It is possible to think that some activities ought to be a matter of choice but that others shouldn't have to subsidize them. The government cannot forbid bumper stickers proclaiming that "smoking is cool," but it can choose to subsidize anti-smoking rather than pro-smoking speech. And quite rightly so.

Is selective subsidization a compelling principle of politics more generally? Maybe not. Certainly there is no general rule that the government may not spend money on anything that a substantial number of people oppose. Quakers are required to pay taxes that support wars. Vegans are required to pay taxes that subsidize factory farming. And so on. Of course, in these cases, the majority thinks that the subsidy does not go to immoral activity, regarding wars as (at least sometimes) justified and animal agriculture as morally neutral to beneficial. In the case of abortion, what does the majority of the House think? As noted in the previous paragraph, I suspect that most of the House members who voted for the Stupak Amendment think abortion is immoral. I also suspect that at least some of the supporters think that, whatever the right choice of any particular woman deciding whether to have an abortion, people who are morally opposed to abortion shouldn't have to support it, but because of the impracticality of rebating tax funds to abortion opponents only, the government simply shouldn't subsidize abortion at all.

But if that is the middle ground here--between legal abortion with government funding and illegal abortion--then there is a substantial difficulty: We do not ordinarily regard everything that recipients of public funds do with those funds as implicating the public in their conduct. The Supreme Court's Establishment Clause jurisprudence is noteworthy in this regard. Although the government could not appropriate funds directly to subsidize various sectarian activities, in a variety of contexts, the Court has upheld programs that appropriate general funds which individuals can then choose to use for partly religious purposes. This principle is sound, and was unanimously adopted by liberals and conservatives alike in the Witters case in 1986--holding that there was no Establishment Clause violation when a blind student sought to use vocational services at a sectarian Bible College for ministerial training. Later cases exposed rifts over the extent and scope of the principle but its core is easy to defend: The student, not the government, directed funds to the Bible College.

Likewise with respect to health care, there would seem to be a substantial difference between, on one hand, direct government funding of stand-alone abortion clinics, and, on the other hand, government's failure to re-write health insurance policies of all persons who receive any government subsidy so as to remove abortion coverage from those policies. The Stupak Amendment takes aim at the latter sort of subsidy. It treats a private choice to have an abortion that is covered largely out of the woman's premiums to her insurer as implicating all taxpayers, no matter how small the government subsidy is relative to those premiums. That looks a lot like, to use a much-abused phrase, a government takeover of health care.

The Republican Party as Pakistan

noreply@blogger.com (Bob Hockett) — Sat, 07 Nov 2009 22:03:00 +0000

By Bob Hockett

This past Tuesday's off-year election results, followed by Wednesday's RNC decision no longer to endorse primary candidates, followed in turn by Thursday's and Friday’s bemusing, astroturfed "tea party" assaults on the US Capitol, call to mind a disturbing, if less amusing, precedent.

It is often observed that the seeds of the trouble with theocratic insurgents now faced by Pakistan were sewn years ago by elements in the Pakistani government itself. How? Via the fostering, training, organizing and financing of the Taliban and associated theocratic movements as tools in the Pakistani intelligence service's perceived rivalry with India and, somewhat less intensely, neighboring Shiite Iran.

Pursuant to an all too familiar "blowback" dynamic, the "monster" that Pakistan nurtured ultimately grew out of hand to the point not only of consuming Afghanistan, but now of threatening to consume Pakistan itself. Acid attacks upon women and girls who dare attend schools, mass killings of innocents in crowded market places, brazen attacks upon army and police posts within major metropolitan areas, the murder of beloved political leaders such as Benazir Bhutto, and de facto control by theocratic militant groups over entire Pakstani provinces have recently culminated in the government’s having to send tens of thousands of troops into the provinces to oust the extremists from power.

Now consider today's Republican party: Since the 1980s it has sought, by strategically whipping up fears of moral and cultural entropy falsely said to be fomented or orchestrated by “anti-religious” progressives, to capture the votes and the energies of evangelically minded Americans. It has then sought to direct these against progressive Democratic political figures (many of whom happen to be quite religiously committed, as our colleague Steve Shiffrin, on whose new book Mike has been posting this week, can attest).

Now all along, this less affluent, religiously conservative wing of the Republican party has rested in uneasy alliance with the more well to do, fiscally conservative and, as it happens, quite secular wing. (“One cannot serve both God and Mammon,” after all.) First Reagan, then – less convincingly – the first Bush, and finally the second Bush managed just barely to bridge the latent gulf between these groups, largely by talking the Main Street evangelical talk on the one hand, while walking the Wall Street fiscal walk on the other.

The deep fissures inherent in this combustible Republican coalition grew impossible any longer to paper over by the time of the 2008 election, however. This grew quite clear in the course of the primary season, then became almost “dramatic” in the tensions that surfaced in the McCain-Palin ticket. Often McCain was visibly uncomfortable in the face of those manifest fears and hatreds to which his running mate openly appealed. Nevertheless, McCain did his own part in contributing to the degeneration of American politics into a theatre of paranoia.

He did so, for instance, by commencing the now profligate misuse of the “s” word (“socialism”) in describing progressive taxation – a century-old mode of public finance that not only then candidate Obama, but all mainstream political figures since Teddy Roosevelt have supported. He did so, as well, by naming Ms. Palin – a woman with great “sex appeal” to the fearful and ignorant but with no discernible understanding of the principal policy questions facing the American polity – as his running mate. And he did so, of course, by making a strange sort of mascot of a skin-headed “plumber” who didn’t believe in taxes at all and, in the end, left the McCain campaign itself for being insufficiently ideologically pure.

The falling out between Mr. McCain and Ms. Palin within weeks of their liaison, and the repudiation of Mr. McCain by Mr. “Plumber,” it turned out, were harbingers of worse to come. For since the election one year ago, the gap between traditional Republicans and the party’s paranoid culture wars “base” has widened all the further.

It is now genuinely unclear whether the leadership of those who are dissatisfied with Democratic governance resides in the traditional “loyal opposition” that is the party out of power – presently, the GOP – or whether instead it resides in an increasingly disloyal, “Shay’s Rebellion”-reminiscent “base” that is no longer that of the Republican party, but of something much uglier. Bizarre television and talk-radio entertainers, often without formal party affiliation, now seriously look to have nearly as much claim to leadership of the anti-Democratic paranoid chorus as do any Republican party officials or politicians.

Against this backdrop, Tuesday’s off-year elections are particularly noteworthy. Some Republican party officials were heard to crow Wednesday about the “turn of the tide” represented by their party’s taking the Virginia and New Jersey governorships. But the operative “tide” actually looks to be sweeping in a rather different, more ominous direction than Republican resurgence. It is sweeping toward the Republican party’s Pakistanization.

In what sense is that true? Well, first note that the winners in Virginia and New Jersey won by campaigning as traditional, “moderate” Republicans. These Republicans actually spoke of “hope” and “audacity,” of “pragmatism” and “getting things done.” (No kidding.) And yet this is a kind of Republican whose days, if New York’s 23d Congressional District is the indication it seems to be, appear to be numbered.

For those who weren’t following, the 23d District for its part had not sent a non-Republican to the US House of Representatives since Ulysses S. Grant was US President – in 1872. Its seat was open this year because President Obama had named its Republican incumbent, John McHugh, to be his Secretary of the Army. The Republican party selected Dede Scozzafava to run to fill the seat in this week’s special election.

Ms. Scozzafava, however, notwithstanding endorsements by Newt Gingrich, Congressman Peter King, the NRA, and others, was not ideologically pure enough for the increasingly shrill base that the party has cultivated. In consequence, this base defected to support the purer candidate, Doug Hoffman of something called the “Conservative” party. Though Hoffman showed himself in debate to be quite noncognizant of the local issues that concerned actual residents of the 23d District, he did pass ideological muster with national conservative figures like Ms. Palin, who endorsed him.

The ensuing debate among national Republican figures including Mr. Gingrich and Ms. Palin culminated in Ms. Scozzafava’s withdrawing from the race and endorsing Bill Owens, the Democratic candidate, who won. By nationalizing what ought to have been a localized 23d District race, ironically, the far right representatives of the Republican party actually increased the Democratic majority in the US House of Representatives. And it looks as though we can expect more of this sort of thing next year. For, emboldened by their ouster of Scozzafava from the 23d District race, right-wingers this week have now vowed to do the same to all Republican moderates elsewhere. One imagines the Democrats’ mouths are now watering at the prospect, just as they did earlier this year when Rush Limbaugh began to emerge as apparent leader of the Republican Party.

There seems to be a lesson here for Republicans, a lesson much like that which Pakistan’s government is now learning. The tactical fostering of ugly, fearful, bigoted passions is very bad strategy. For these human tendencies often prove ultimately to be uncontainable and unchannelable. They tend, once let out of the bottle, to blow back and devour the very parties who uncork them. Were I a Republican, I’d look at New York’s 23d District as the party’s own Northwest Frontier Province. And I’d look at 2010 as a year to begin making amends with the true American tradition, which has always been much more pragmatic than ideocratic or theocratic.

The Religious Left, Part 2: The Master's Tools

noreply@blogger.com (Michael C. Dorf) — Fri, 06 Nov 2009 08:12:00 +0000

By Mike Dorf

In my post on Monday, I promised to come back to a practical question raised by Steve Shiffrin's book, The Religious Left and Church/State Relations. Shiffrin argues that the religious left is better positioned than the secular left to contend with the religious right over church-state separation issues. Although Shiffrin does not make the argument, one might extend the logic to other issues as well. If the problem with public reason is that it fails to capture all of the sources of value that inform most Americans' judgments about basic issues of political justice, then we might expect public reason to fail not only with respect to church-state issues but also with respect to other issues. Thus, one might think that the best way to meet the arguments of the religious right on abortion and gay rights (to name the two social issues of greatest concern to the religious right) would be to send the religious left, rather than the secular left, into the arena to battle it out on theological grounds.

But whatever the appropriate domain of Shiffrin's argument, I want to question its likely efficacy by drawing an analogy to arguments about original understanding in constitutional law. Various conservative Supreme Court Justices often say that their views on constitutional issues are a product of the original understanding. There are two sorts of responses to these claims. One, which I'll call the "secular left" approach, would be to give reasons why the original understanding should not be determinative of contemporary meaning. A second, which I'll call the "religious left" approach, would be to meet the originalist arguments on their own terms.

Nice examples of the religious left approach to original understanding can be found in Justice O'Connor's dissent in City of Boerne v. Flores, Justice Souter's dissent in Alden v. Maine, and Justice Stevens' dissent in DC v. Heller. Rather than simply decrying the majority's reliance on original understanding in each of these cases, the dissenting Justices attempt to do the majority one better by showing how the majority's originalism is bad originalism. The parallel to Shiffrin's argument that the religious left should engage the religious right by showing how its theology is bad theology is striking.

How effective has the religious left strategy been in constitutional interpretation? I think it has been a complete failure--if the goal was to persuade the conservative originalists that their arguments based in original understanding do not support their politically conservative conclusions. On nearly all the important questions that make it to the Supreme Court's docket, the original understanding is sufficiently unclear or manipulable that it is very hard to say that a decision one way or the other is "correct" as a matter of original understanding. And when the liberals do have a nearly slam-dunk argument--as they do with respect to the constitutionality of race-based affirmative action--the conservatives simply stop talking about original understanding. (The conservatives also say very little about original understanding with respect to most free speech questions, but there is a fairly broad liberal/conservative consensus on the value of free speech, so no one on the Court has an incentive to note this.)

Now, moving back to the domain of public argument, is there any reason to think that the sorts of sources that figure in theological debates are less manipulable than the sources that figure in debates over the original understanding of the Constitution? The religious left can invoke "Thou Shalt Not Kill" to oppose the death penalty, but the religious right can support it with "A Life for a Life." On matters of church-state separation, the religious left can invoke "render unto Caesar that which is Caesars's and unto God that which is God's." The religious right can counter that ancient Israel as portrayed in the Bible was a theocracy, that prior to the Protestant Reformation (and really for quite a long time thereafter), church leaders exercised political power and vice-versa. My point is not that there aren't better and worse arguments based on religious sources but that people in all walks of life suffer from confirmation bias: Believing in the morality or immorality of the death penalty, or the necessity or folly of church-state separation, people will find in their holy books and traditions confirmation for their pre-existing views.

Thus, it seems highly unlikely that the religious left's arguments rooted in theology or Biblical exegesis will actually persuade people on the religious right. But that may not be their point. Perhaps their point is to persuade the religious middle? I want to acknowledge that possibility but also to suggest that there is another possible effect: By crowding out secular arguments for progressive results, the public debate will shift to terms more favorable to the religious right. Yes, one can cite chapter and verse for progressive policies, but the relevant holy texts were written a very long time ago in societies that do not share our values. More often than not, the religious conservatives, like the originalists in constitutional interpretation, will win if the battle is fought on their terms.

Shiffrin, who is not an originalist with respect to constitutional interpretation, quotes Gordon Wood to undermine the constitutional authority of the Founders: "Seeing Washington and Jefferson as slaveholders, men who bought, sold, and flogged slaves, has to change our conception of them. They don't belong to us today; they belong to the 18th century, to that coarse and brutal world that is so remote from our own." What's true of the 18th century is all the more true of the ancient world: The Bible condones slavery (and nothing in the New Testament questions it); it prescribes payment to the father and marriage to the victim as the "penalty" for rape; it commands the death penalty for gay sex; it condones wars of conquest; etc. It is possible to construe one's way around such provisions or to take an evolutionary approach to morality, but the basic texts are considerably more amenable to conservative or reactionary views, which is hardly surprising: they come from a much more coarse and brutal world than our own (one hopes).

The master's tools will never dismantle the master's house.

Moving Targets

noreply@blogger.com (Neil H. Buchanan) — Thu, 05 Nov 2009 11:42:00 +0000

-- Posted by Neil H. Buchanan

In a particularly good example of the value of blogs and comment boards, my latest FindLaw column (available here later today) picks up on comments from two Dorf on Law readers who responded to my post on October 22. In that post, I had discussed how to protect people against abuses by credit card companies, banks, mortgage companies, etc. One reader raised the point that it is possible to use equitable doctrines of contract law (especially unconscionability) to rein in financial actors. Another reader suggested that creating a regulatory agency (the proposed Consumer Financial Protection Agency, which I endorsed) would be arguably better for business because it would reduce the (mythical) tsunami of lawsuits that is bringing down American businesses.

In today's FindLaw column, I analyze the choice between regulation-by-lawsuit and regulation-by-executive-agency. Both are forms of regulation, because both necessarily involve the government in deciding what types of arrangements will be enforced by law. After describing the equitable doctrines that are available under the law -- and how well those doctrines would seem to apply to financial market abuses (sub-prime loans being the modern equivalent of the Williams v. Walker-Thomas Furniture case that is the foundation of the modern unconscionability doctrine), I point out that those doctrines are deliberately underused by courts.

I then point out that even a beefed up regime of equitable relief in court would not be enough to protect consumers, because individual consumers will never be able to play the litigation game in the way that large corporations do. Conclusion: We need to improve financial market regulation, and courts (as important as they are) cannot do what is needed nearly as well -- nor as inexpensively -- as agencies. [Note: The use of the term "beefed up" in this paragraph is not anti-vegan.]

I briefly touch on the "relief from lawsuits" point in the column, but I will use that as a starting point here to discuss the phenomenon of the political "moving target." The DoL reader made the seemingly simple point that business spokespeople constantly complain about facing lawsuits (supposedly frivolous, often extortionary), which means that they should be excited about a system that would reduce lawsuits. Of course, businesses do not want to deal with a regulatory agency either. Understandably (but not defensibly), they want it all: no lawsuits, no restrictions on their profit-seeking actions.

It is not, therefore, necessarily a matter of having a moving target to be opposed to both alternatives. It is a moving target, however, when the arguments against one alternative invoke the availability of the other. "People don't need regulatory agencies, because the courts will protect them." "People don't need lawsuits, because there are regulatory agencies to protect them."

Another example of this phenomenon is the question of how to fight obesity. A few years ago, when a lawsuit was filed in New York by an obese 14-year-old against McDonald's, the reaction was swift and derisive. Beyond the standard tabloid-driven nonsense, however, one argument that I heard was that the problem of obesity was too pervasive to deal with through lawsuits. It should, instead, be dealt with by the FDA or some other agency. This, of course, ignores the incentive effects that make lawsuits effective for far more than the litigants; but we can set that aside for now. The bigger point was that the courts were the wrong place to regulate, and the agencies were the right place to regulate.

When bills were proposed to expand the FDA's powers to address obesity, it should not be a surprise that the argument changed. We then heard nothing but bad things about the inefficiencies of regulatory agencies. "If there is really a legal abuse, the courts can handle it." In addition, a third possibility arose. Taxation is more efficient than regulation, because it allows businesses to respond to incentives rather than bear the burden of command-and-control rules written by some bureaucrat who knows nothing about the business.

Now, we are in the midst of the debate over taxes on fatty foods, etc. Again, we learn that this is the wrong solution. Either it really is not a problem (a position that a few people cling to), or it is. If it is, however, then we seem to have exhausted the solutions: Lawsuits are out, because it is better to regulate via agencies. Agency regulation is out, because it is better to regulate via taxes. Taxes are out, because taxes are bad.

The remaining alternatives -- educating people to make better choices, changing food manufacturers' distorted incentives to make unhealthy food -- merely return us to a different kind of agency action. Every solution still involves government action, either through changes in food policy or outreach programs to improve people's choices. Moreover, opting for no solution at all does not make the problem go away. It merely turns it into a health care problem. No regulatory issues there!

There are many other examples of this type of deceptive reasoning. I am starting to work on a book that describes how the moving-target phenomenon works in debates over income and wealth inequality. The arguments are fascinating in their perversity.

Easterbrook, Posner, Buffett, Bogle, Behavioral Finance, the Obama Administration, and Scads of Finance and Business Law Profs -- All in One Case at SCOTUS Yesterday

noreply@blogger.com (Bob Hockett) — Wed, 04 Nov 2009 06:33:00 +0000

By Bob Hockett

The Supreme Court heard oral arguments Monday in a fascinating case that DoL readers might find particularly interesting in a time of financial turbulence. The case is Jones v. Harris Associates, LLP, No. 08-586, wherein plaintiff, a mutual fund investor, challenged fees charged by the fund's investment advisor under Section 36(b) of the 1940 Investment Company Act. The case is of interest not only for a number of doctrinal and economic reasons, but also for the two judges it pitted against one another below. For the case finds its way up to SCOTUS after a Seventh Circuit decision not to rehear the case en banc after first finding for the defendant. And that rehearing decision split 5-5 with Chief Judge Easterbrook writing for the winning side in the dispute, and Judge Posner writing for the losing side. (The eleventh judge recused.) Of additional, albeit related interest is the cast of amici who filed briefs with the Court, which constitutes a partial Who's Who of well regarded legal and financial theorists and practitioners, not to mention the SG's office.

Let me first say a brief word about the economic and what I'll call the "structural" significance of the case for the financial services industry, which will be of interest to our nonlawyer readers as well as to lawyers. Then I'll briefly indulge my lawyer's interest in a few of the doctrinal and other legal curios that the case draws out. Then I shall hazard a quick opinion of my own.

Many Americans nowadays invest sizeable portions of their savings in what are known as "investment companies" (ICs). ICs are pooled investment vehicles that enable investors efficiently to diversify investments in broad portfolios of stock- and bond-issuing firms. If you've got $100 spare dollars and Microsoft, Ford, and eight other firms all sell shares at $100 per, alone you will only be able to invest in one. Pool your savings with nine other similarly situated folk and you can each effectively diversify over ten companies, which can be made a good bit safer than putting all of your eggs in only one -- even very good -- basket would be. You might think of ICs as a sort of "upside" counterpart to insurance, inasmuch as they amount to forms of risk-pooling that minimize downside losses that individuals might experience in pursuit of "upside" opportunities.

ICs come in two particularly well-known flavors: so-called "closed end" and "open end" funds. The latter are better known to most Americans as "mutual funds." What distinguishes them -- and the sense in which they are "open" -- is the fact that investors can typically enter and exit at will. As many new shares as might be desired generally are made available to new investors, and these shares are then redeemable at current market value any time the investor wishes to withdraw her investment. The consequent ease of entry and exit renders open end funds attractive even to relatively unsophisticated, small fry investors as higher-yield substitutes for, or complements to, savings and checking accounts held at commercial banks. (Closed end funds, as the name suggests, do not offer this ease of entry and exit. They tend in consequence to cater to wealthier, more sophisticated investors willing to park large sums of money in their funds for the long haul.)

Open end investment companies -- or again, mutual funds, or what I shall now simply call "funds" -- rapidly grew and proliferated commencing in the late 1960s. Several factors accounted for this. One was the combination of a booming stock market, high inflation rates, and mandatorily low bank-offered interest rates of the era, which induced a search by savers for higher-yielding investment that were nonetheless easy to understand and use, and reasonably safe in the way that diversified portfolios often are. Another was the development of financial theory, which increasingly came to afford even non-rocket-scientist investment managers the capacity to diversify away much of the risk of investment while nevertheless realizing respectable returns. Yet another was ERISA and related changes to the tax code commencing in the early 1970s, all of which were meant to encourage more retirement investment on the part of baby-boomers now well ensconced in the work force. The end result was a virtual "explosion" of mutual fund investments, to the point that today it is estimated that over 50 million -- about half of -- American households, numbering to upwards of 90 million adult citizens, directly (in IRAs or related investment categories) or indirectly (through pension funds or similar vehicles) hold upwards of $10 trillion in assets under management in mutual funds.

So much for the broad economic backdrop. Now to the "structural." The Jones case is rooted in the way that mutual funds generally are organized and run. Typically what happens is this: A so-called "Investment Advisor" (IA, or "advisor") organizes a fund either as a trust or as a stripped-down corporation under a particular state's corporate code or business trust statute. The fund is then treated as a simple legal entity that is effectively nothing more than a pot of money -- the pooled funds of investors. The advisor also names a board to oversee this fund, and to decide what fees to pay those who manage the fund's investments. Who does that managing? Easy: in most cases, the advisor her-, him- or itself, or persons retained for the task. So the advisor acts much as the management of any business corporation, while the board acts much as do boards of such corporations. Investment advisors also, quite often, establish multiple distinct funds or "families" of funds, and name board members to each distinct fund or family. In addition to playing this role, many investment advisors engage in another activity more clearly indicated by the term for them -- they advise, in this case even for funds that they have not organized or named the boards for. In light of this dual role, funds with which IAs are affiliated often are categorized in the industry as "captive" and "independent." Captive funds are those organized by, and whose boards are named by, their investment advisors. Independent funds -- often pension funds sponsored by employers -- are those that are simply advised by their investment advisors.

Now to the specifically legal aspects of the Jones case. As the term "captive" suggests, the relation between IAs and their "captive" funds occasions some legal concern. The reason is fairly clear -- and indeed is richer even than the litigants in Jones appear to have emphasized. Advisors to captive funds name the boards of those funds, and it is these boards that in turn vote in favor of or against the fee arrangements that advisors make with the funds. The fact that the board members are in effect indebted to the advisors whose compensation they are to decide is of course thought to render them less than optimally vigilant. That much the litigants in Jones have noted. What has received less attention in Jones is that often the boards of funds are indebted to advisors for more than their positions with particular funds whose shareholders bring suit in particular cases: Often they are indebted to those advisors for naming them to *other* funds as well. Indeed it's quite common that one board member might sit on the boards of ten or more funds managed by the same advisor. The conflict of interest can be very stark in such cases.

The law of course reflects cognizance of this danger, and the forms that this reflection takes give rise to doctrinal puzzles that I believe ought to fascinate lawyers a bit more than they seem in general to do.

The first means by which the law addresses the conflict is via the fiduciary doctrine of the state in which any fund is organized. State law fiduciary doctrine typically divides into discrete duties of care, loyalty, and obedience, and the relations between mutual fund boards and investment advisors ought in theory to implicate some manner of "hybrid" between traditionally relaxed care review and traditionally more exacting loyalty review. (Perhaps something like the apparently middling new "duty of good faith" that some commentators attribute to the Delaware Supreme Court in its recent fiduciary duty jurisprudence.) The reason I say this is that fund directors are in one, formal sense simply making non-conflicted business judgments in deciding what to pay funds' investment advisors, while they are in another, more pragmatic sense at least "vicariously" conflicted in deciding how to pay those to whom they owe their very positions with the funds they direct.

The second means by which the law addresses the conflict is via Section 36(b) of the Investment Company Act of 1940 (ICA, or "the Act"), which is actually the section under which the Jones case has been litigated. Section 36(b), added to the Act in 1970 in response to perceived abuses in the fee arrangements between funds and advisors, is somewhat puzzlingly worded -- so much so that Justices Breyer and Kennedy yesterday wondered aloud about the provision's import, while Justice Scalia predictably labeled the statutory language "utterly meaningless." What the Section does is impose upon investment advisors "a fiduciary duty with respect to the receipt of compensation for services." It also directs courts to give "such consideration as [they] consider[s] due under the circumstances" to the fact that a fund's board has approved a challenged advisory fee.

One puzzle that Section 36(b) introduces, of course, is just what fiduciary duty the Congress had in mind, given the traditional divvying up of fiduciary duty into discrete duties. A second puzzle that it introduces is whether and how this fiduciary duty, what ever it is, should interact with the state fiduciary doctrine in which ever state a particular fund is organized. Does anyone hear the phrase "federal common law" Eriely echoing here? (In one sense, you shouldn't, since we're talking federal question under 36(b), and state law question under state trust and corporate law. But in the absence of a well developed federal common law of fiduciary duties under the ICA or associated Roosevelt-era finance-regulatory statutes, the fiduciary doctrine of the state where a fund is organized is sometimes apt to tempt.) Finally, a third puzzle raised by Section 36(b) -- and the only one, as it happens, that had actually been discussed prior to oral argument yesterday before SCOTUS -- is how, precisely, a court is to determine whether a particular investment advisor's fee arrangement with a fund falls afoul of the fiduciary standard "articulated" in Section 36(b). But though this third puzzle is the only one substantially argued over below, the way the Seventh Circuit went about addressing it has occasioned plenty of procedural interest in its own right!

Until the Seventh Circuit's decision last year, the practical answer, such as it is, to our third puzzle long had been that supplied by the Second Circuit in its 1982 decision, Gartenberg v. Merrill Lynch Asset Management (cert. denied, 1983). Under the Gartenberg standard, an Investment Advisor falls afoul of ICA Section 36(b) only by "charg[ing] a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's-length bargaining." The general rule under Gartenberg is that fees are to fall "within the range of what would have been negotiated at arm's length in the light of all of the surrounding circumstances."

Perhaps needless to say, few plaintiffs have tended to prevail under this standard, notwithstanding its broad conferral of discretion upon district courts in considering "surrounding circumstances." The principal reason is that federal courts, rather like state courts in garden variety corporate law fiduciary duty cases, have as a practical matter proved reluctant to impugn the independence of directors even of "captive" funds, at least provided that one or more such directors were not beholden to their funds' advisors for multiple additional directorships. I'm often forced to issue a crooked-smiled apology to my Financial Institutions students when we cover the leading cases here.

The plaintiffs in Jones, however, sought to prevail under Gartenberg by adducing a novel ground for discrediting directorial approval of investment advisory fees: They argued that Harris Associates, as investment advisor for the Oakmark group of funds in which plaintiffs invested, could clearly be seen to have acted in violation of the standard in virtue of having charged much higher fees to its "captive" funds than it did to its independent ones. That disparity, they argued, indicated that the directors of the "captive" Oakmark funds must indeed have been captive, and the fees accordingly not those that would have been negotiated in true arms-length negotiations between bona fide representatives of shareholders on the one hand and an investment advisor on the other hand.

Now, you might have thought that this argument would invite a more or less careful judicial inquiry, of an at least partly empirical character, into whether the disparity in fees charged Harris Associates' captive funds and its independent ones could be innocently explained. But that isn't quite what happened. Indeed oral argument yesterday afforded some indication that the SCOTUS and the litigants alike remain a bit puzzled as to how best to characterize what *did* happen.

Here is what happened. First, the district court in Jones v. Harris granted Harris's motion for summary judgment under the Gartenberg standard, on grounds of representations by Harris Associates that the services rendered its captive funds, which held many more dollars' worth of assets under management than did its independent funds, simply were more costly to render even on a pro rata basis. And while it is not clear on the basis of prior precedent under Gartenberg that this decision was incorrect, it also is not clear that it is correct. Perhaps seeing this, the Seventh Circuit, per Judge Easterbrook, took a surprising step on appeal: It not only affirmed the district court's decision on the grounds given by that court, but also while at it went out of its way expressly, and it seems unnecessarily, to disavow Gartenberg, in the act introducing a pronounced circuit split. (Two other Circuits additional to the Second follow Gartenberg.) And it is here that things grow particularly interesting, particularly against the backdrop of renewed public discussion about the allocative efficiency of capital markets and the reliable rationality of their participants.

Judge Easterbrook disavowed Gartenberg because, in his words, it relied "too little on markets." Where there is no evidence that an investment advisor "pulls the wool over the eyes" of a fund's shareholders, he argued, and where there are literally thousands of mutual funds among which investors can shop, investment advisory fees are presumptively fair and "judicial price-setting" will be out of place. Any advisory fee is effectively within the law, Easterbrook argued, so long as advisors "make full disclosure and play no tricks." For again, in a market where there are thousands of funds, including low fee index funds, among which investors can shop, there simply is no reason to suspect that competition is insufficient to keep fees down to their socially optimal level. Even less is there reason, Easterbrook opined, to think that courts could do better.

Plaintiffs' appeal for rehearing en banc brought yet another interesting wrinkle to the case. The full court split 5-5, with Judge Posner writing the dissent to what defaulted to being an effective denial of the appeal for rehearing. The clash between Posner and Easterbrook makes for fascinating reading. Posner first noted that Easterbrook's claims that the 7th and other Circuits had earlier found Gartenberg wanting were simply not supported by the prior decisions to which he cited in footnotes, in that those were not excessive fee cases. Posner next noted that an influential 2007 article by John Coates and Glenn Hubbard upon which the court relied actually came down in favor of the Gartenberg standard, even while recommending some "fine tuning." Then Posner observed, notably, that the panel had based its rejection of Gartenberg "mainly on an economic analysis that is ripe for reexamination..." Zounds! Why? Because of "growing indications that executive compensation in large publicly traded firms often is excessive because of the feeble incentives of boards of directors to police compensation." Here Posner cited Bebchuk and Fried's widely cited "Pay without Performance" article of 2004, along with, characteristically, a slew of others. He then went on to point out how abuses were particularly rampant in the financial services industry in particular, and in the mutual fund industry more particularly still, once again citing impressively.

Posner had particularly harsh words for the casual speculations that the panel offered putatively to account for the differential fees Harris Associates charged its captive and its independent funds. "The panel opinion throws out some suggestions on why this difference may be justified, but the suggestions are offered purely as speculation, rather than anything having an evidentiary or empirical basis." Posner also noted that the governance structure that characterizes advisors' relation to their captive funds is industry-wide, meaning that the panel's agreement with defendants that it was better to compare Harris's fees with those charged to other captive mutual funds rather than to independent funds was ill-considered. It would virtually guarantee that what might be exorbitant fees will come to constitute an industry floor, all while too hastily rejecting what might be a better baseline of comparison -- the fees charged independent funds, as proposed by plaintiffs -- on the basis of no more than "airy speculation." Finally, Posner noted that the panel's opinion created a circuit split, and that the panel had not acknowledged this or circulated its opinion to the full court in advance of publication, as the court requires when a circuit split is created by a panel decision.

The procedural oddities attending the Jones case below in the Seventh Circuit made for some fascinating moments of confusion in oral argument before the SCOTUS yesterday. Asked by Justice Sotomayer whether he wished to disavow Judge Easterbrook's ground for ruling in favor of the defendants, John Donovan, counsel for Harris Associates said "I do not defend that." Instead, he argued that the Justices should affirm the district court decision, ignoring the Seventh Circuit panel's decision. Nevertheless, Chief Justice Roberts and Justice Scalia appeared sympathetic to the Easterbrook line of thinking. Roberts observed that one could ascertain the management fees charged mutual fund investors, and pull out of funds whose fees are unattractive, within 30 seconds on Morningstar. Scalia questioned the competence of courts to second-guess boards of directors. Breyer and Sotomayer, by contrast, were openly skeptical about the reliability of the market to police mutual fund fees. Thomas, for his part, was silent as ever. So was Alito. Stevens posed only one question. Breyer was less vocal than usual, with laryngitis. Kennedy, as mentioned, puzzled over what Section 36(b) could mean by "fiduciary." Ginsburg, like Breyer and Sotomayer, appeared to be inclined to remand to the district court for explicit factual findings. There were also some indications that some Justices, as well as counsel for both parties to the litigation, were puzzled over whether Judge Easterbrook's proposed new standard really was incompatible with Gartenberg. Finally, all parties, it is reported, were uncharacteristically subdued throughout yesterday's proceedings, with defendant's counsel, Mr. Donovan, using only 25 of his alloted 30 minutes in argument.

Nearly as interesting as the doctrinal puzzles and procedural idiosyncrasies attending Jones is its array of amicas briefs. Submitting briefs on behalf of plaintiffs were an array of legal and "behavioral finance" luminaries including Ian Ayres, Robert Litan, and a large passel of law professors. Many of the arguments proffered by these parties highlighted the market failures apt to be found in the financial markets owing to behavioral-psychological dispositions figuring large in much empirical legal scholarship these days. (Indeed the briefs read almost as "primers" of the still burgeoning field.) Also submitting briefs for the plaintiffs were John Bogle, renowned financier and founder of the innovative Vanguard group of low fee index funds, and the Solicitor General's office under Solicitor General and recent Harvard Law School Dean Elena Kagan. Warren Buffet, though he did not file an amicus brief, also had spoken out on behalf of the plaintiffs in Jones. Arrayed against these parties in the amicus sweepstakes were a number of investment companies and industry groups, including the most influential in this context, the ICI.

What to make of all of this, and what to recommend? Well, I've got three quick thoughts and a recommendation.

First, as a matter of appellate procedure, one thing that SCOTUS might do is simply affirm the Seventh Circuit under some perhaps fine-tuned or further clarified version of the Gartenberg standard that has come to prevail in other Circuits over the past quater-century, noting that the disctrict court itself had done so and that the Seventh Circuit panel had unnecessarily muddied the waters in going out of its way unnecessarily to slap together a new standard, unteathered in either the language of or Congressional intent prompting Section 36(b), out of whole cloth. And in light of prior precedent under Gartenberg even in the Seventh Circuit itself, there would be no glaring doctrinal error in a decision to this effect. But I'm not going to recommend this, and I'll say why in a moment.

Second, as a "big picture" doctrinal matter, one might imagine SCOTUS acting in some way to clarify that status of federal "fiduciary" law under the ICA and other statutes from the same era, with an eye in particular to how, if at all, it should interact with state fiduciary duty doctrines applicable in the states in which firms subject to both federal and state fiduciary doctrine are organized. There appears to be a large Erie-reminiscent (though as noted above, not Erie-doctrinal) "federal common law" question lurking here that's at bottom of Justice Kennedy's puzzling yesterday, and that at some point might have to be resolved. And there is the related, and still hotly contested, larger backdrop question of the appropriate federal role in traditionally state-determined matters of corporate governance. There are quite a few ways one might imagine the Court embarking upon any such attempt at clarification, but I won't elaborate these here basically because I doubt that the Court is in any mood to address any such "big picture" questions in connection with this case, and am not sure that I'd be in such a mood either. So I won't recommend -- or predict -- this course either for Jones.

Finally third, as a matter both of "judicial minimalism" and of sensible policy prudence, one might imagine -- and I'm going to hope -- that the Court will go the route that Justices Breyer, Ginsburg, and Sotomayer seem to be leaning, and that is effectively entailed by Judge Posner's apt observations in his dissent below. In a word, defendants in Jones *might* very well be right that to compare fees charged captive funds to those charged independent ones is illicitly to compare "apples and oranges," and hence not to go correctly about the task of determining whether the first set of fees can plausibly be characterized as arms-length. But defendants might *also* be *incorrect* in suggesting this, and this is precisely the point. The district court erred, in my judgment, in not subjecting the dispute over appropriate bases of comparison in captive fund fee cases to at least moderately careful empirical scrutiny. And that is the case partly because such inquiry is not difficult to manage, and partly because there is very good reason to be skeptical about (a) captive boards' capacities to act independently even when acting in good faith, (b) captive funds' capacity, therefore, meaningfully to compete with one another on fees, and (c) small fry investors' capacities actually to shop carefully among captive funds. Against this combined low-cost-of-court-inquiry, high-likelihood-of-market-failure backdrop, surely the best course of action for SCOTUS to take is to remand to the district court under some version of the Gartenberg standard, which is capacious enough as it is to take due account of a competitive market if it is found empirically to be there.

The Federalism Objection to the Individual Mandate

noreply@blogger.com (Michael C. Dorf) — Tue, 03 Nov 2009 06:28:00 +0000

By Mike Dorf

Over on FindLaw, I have now posted my second column in my two-part series on objections to the individual mandate. In this one, I tackle the question of whether there is affirmative power in Congress. My conclusion: Yes, under either the commerce clause or the taxation power. I also say that members of Congress should satisfy themselves that this is the sort of thing that is properly within their purview.

I don't have anything to add here about the federalism point, but I do want to say one more thing about the libertarian objection, which I addressed in my prior column and two blog posts (here and here). There is a version of the libertarian objection that I do share: Namely, that the government should not be dictating healthy behavior. Suppose, for example, that Congress included as part of its health reform legislation a provision requiring all Americans to see a doctor and then to exercise according to a customized age/height/weight chart.

The requirement to see a doctor would come close, in my view, to violating the common law right--assumed to be a constitutional right in the Cruzan case--to refuse medical treatment. To be sure, a visit to a doctor is not quite the same thing as an operation, but the core idea of the right to refuse medical integrity is a kind of inviolability of the body. Medical exams are intrusive and so we might at least think that the government needs a good reason to require a competent adult to submit to one. In the litigation context, for example, Federal Rule of Civil Procedure 35 requires that parties seek a court order for a medical exam of another party; that flips the default under the Federal Rules of permitting discovery of relevant material unless a protective order is sought. Rule 35 does not create or recognize an inviolable right against a medical exam but it does, in my view, reflect the notion that such exams are prima facie intrusive.

Even if one thinks that it's okay for the government to order everyone to see the doctor, an order to exercise does appear to go to far. It looks a lot like conscription, which, if justified in wartime, is still extraordinary. Further, it is not clear how a mandatory exercise regime could possibly be enforced absent something like Orwellian surveillance.

All that said, it is still worth noting how much more intrusive these hypothetical examples are than the actual individual mandate. Indeed, we could well imagine something like the individual mandate coming with strong incentives--though not compulsion--to exercise. Suppose that the overall health insurance system allows insurers to "experience rate." Smokers would pay higher premiums, fit people would pay lower premiums, and so on. To be clear I'm NOT proposing this. What I am saying is that a truly private health insurance market would almost certainly go this way, and in an important sense that would be better for society: People would be forced to internalize the health care costs of their behavior. That's not to say that all manner of experience rating would be defensible: E.g., screening people out for genetic predispositions over which they have no control would strike most people as unfair. (It certainly strikes me that way.) And even with respect to costly behaviors like smoking, unhealthy diet, and couch-potato-ism, there is something cruel about increasing the health insurance premiums for people who engage in these behaviors. But perhaps that just goes to show that I'm not that much of a libertarian.

The Religious Left--Part 1--Universal Victimization

noreply@blogger.com (Michael C. Dorf) — Mon, 02 Nov 2009 06:49:00 +0000

By Mike Dorf

On Friday, Cornell Law School celebrated the publication of my colleague Steve Shiffrin's new book, The Religious Left and Church/State Relations. I've discussed much of the underlying work with Steve (whom I greatly admire) but I must confess at the outset that I haven't yet read the book (though I plan to do so), and so these comments are based on the panel. It featured commentary by Kent Greenawalt, Sally Gordon, and Bernadette Meyler.

Shiffrin argues that the religious left is better positioned to respond to the religious right than is the secular left. By the "religious left" he more or less means to refer to people who self-identify as religious and who support separation of church and state at least in part based on their religious convictions. Shiffrin's pragmatic case notes that the great majority of Americans have some religious convictions, and so arguments that banish such convictions from the public sphere--as the Rawlsian notion of "public reason" would--will ring hollow or at best incomplete. If the secular left wants separation of church and state, it would do better to take a back seat to the religious left, which wants the same thing but can argue for it in terms that have broader appeal.

In this post I want to make an observation. In a follow-up post later in the week, I'm going to register a doubt about the likely efficacy of the strategy. Here's the observation: We now seem to have reached a place in our public discourse on religious matters where nearly everyone feels victimized.

Recent books by prominent atheists such as Richard Dawkins, Christopher Hitchens and Sam Harris all, in one way or another, urge atheists to "come out." And with seemingly good reason: With polls showing that atheists are among the most despised, least trusted minorities, atheists might be borrowing a page from the gay rights movement and trying to show their religious fellow citizens that atheists are their friends, relatives and neighbors. Of course, this round of books is not at all effective for that purpose, because the books tend to treat religious belief as a form of irrational, often immoral, superstition. I don't know whether these authors intended to insult religious people, but it wasn't hard to predict that this would be the effect of their writings. It's therefore probably best to read the recent atheist books as round one. They aim to raise consciousness among atheists themselves, who can then feel the power of their numbers and later argue for acceptance and even changed policies.

Meanwhile, the religious right has for some time been promoting its own narrative of victimization. The supposed "war on Christmas" has now morphed into a "war on Christianity"--a term being used by some on the religious right to describe laws in the U.S., Canada and the U.K. that extend protection against hate crimes for LGBT persons and efforts to respect Muslim traditions. Googling "war on Christianity" produces over half a million hits. You can't make this stuff up.

So, if atheists and the religious right feel persecuted, surely the religious left feels secure, right? Nope. It was striking to me how, during the panel on Shiffrin's book, Professor Gordon (whose work I much admire and whom I like very much) repeatedly spoke for the religious left as though they are a persecuted minority. She reported to having felt lonely, isolated, and even scorned by her progressive friends in the academic world for taking religion seriously. Reading Shiffrin's book was for her empowering. She realized that she was part of a great silent plurality if not majority, that would be silent no longer. And she directed her anger not at the religious right but at the secular left, at one point wishing that the likes of Richard Dawkins would "shut up." I believe Gordon meant the point in jest; she doesn't literally want to censor the atheists; and I suspect that she would not exactly say she is victimized for her religious convictions. But still, I perceived real anger.

It is tempting to take from these competing narratives of persecution the lesson that America has become a nation of over-sensitive whiners, or worse, that our public life is so fractious that we cannot engage each other respectfully despite our diverse views about ultimate value and meaning in life. But I would resist both temptations. Certainly Shiffrin himself has repeatedly shown in my conversations with him that it is possible to understand the strength of views he does not hold. Greenawalt specifically noted how the book is scrupulously fair in its treatment of opposing views.

As for Americans more broadly, it strikes me that competitive victimization is simply an effective political rhetoric. In many contexts, differences about religious matters are simply not salient. Thus, for example, on Thursday night, I had the good fortune to attend Game 2 of the World Series, where strangers of all religious faiths, and no religious faith at all, came together to high-five one another and in unison chant "who's your daddy?" at Pedro Martinez, united by the true American faith: That with enough money, and a Presidential pardon for illegal campaign contributions, you can assemble the best baseball team on the continent. Go Yankees!

The Libertarian Objection Again

noreply@blogger.com (Michael C. Dorf) — Fri, 30 Oct 2009 05:09:00 +0000

By Mike Dorf

In response to my FindLaw column and accompanying blog entry last week on the libertarian objection to the proposed individual mandate in various pending health care bills, I received a number of emails and came across various commentaries on the web taking issue with my view. Here I want to respond to a couple of what I think are clearly misguided objections and then unpack one that, in my view, has more bite.

1) Some critics accused me of ignoring what they regard as the best objection to the individual mandate--that there is no power in Congress to require it. (E.g., here.) Yet I quite clearly say at the beginning of the column that there are two primary objections to the individual mandate, and the second one contends "that the federal government lacks the authority under the Constitution to impose the mandate or to penalize those who do not comply." I then say that I will object this second objection--an objection that constitutional lawyers would routinely call a "federalism objection"--in a followup column. So, stay tuned on that front.

2) Some other critics say that I haven't rebutted the libertarian argument because I take the existing level of government involvement in the economy as my baseline but that baseline is already way too high. Yet I did not claim to be responding to all libertarians who object to anything more than a Nozickian watchman state. I have quite clearly styled my interventions here as a response to the libertarian objections that have been most clearly directed at the individual mandate as such. And those objections--coming from the Cato Institute (the leading American libertarian thinktank) and leading Republican Senators--make the argument that the individual mandate is, in a key respect, unprecedented. In other words, their argument takes the existing level of government as the baseline, and I was responding to that. If libertarians object to the proposed individual mandate on the same grounds that they object to Medicare, Social Security, Medicaid, vaccination, jury duty, and other government activities--including most taxation--they should say so loudly and clearly, rather than muddy the issue by saying that the proposed individual mandate would be unprecedented.

3) But now onto what I find to be the most interesting libertarian objection, which has not been posed specifically as an objection to my defense of the individual mandate but is nonetheless salient. Some libertarians object that what makes the individual mandate different from prior government mandates is that it is a mandate to engage with a private firm. The obligations to serve jury duty, to pay taxes, to register for the draft, and to educate one's children involve bilateral relations between the citizen and the government. By contrast, the individual mandate would require people to buy health insurance from third parties--either for-profit or non-profit organizations. Thus, even some on the left, most notably TruthDig's Robert Scheer (speaking on KCRW's Left, Right & Center), have argued that this is unfair.

The core question I would pose for people like Scheer is why this is any worse than taxing people for other privately provided goods and services they don't use. The federal government uses my tax money to subsidize private animal agriculture, even though I'm not eating any of the resulting animal products. The libertarians have complained that the individual mandate is a tax on "existence," but that's just a formality. The U.S. Constitution expressly approves of head taxes (so long as apportioned according to population) and they were used in the nineteenth century. Moroever, as I explained in my column, the excise tax in the Baucus bill is triggered by income relative to the poverty line, and so this could just as easily be thought of as an income tax.

Scheer's real objection should be that the various proposals floating around in Congress operate as regressive taxes: the only people who will pay them are those who don't have employer-based or other health insurance and can't afford to purchase it privately. But that's an egalitarian objection to the stinginess of the proposed subsidies, not a libertarian objection to the mandate.

Scheer also said (during last week's LRC episode) that he would not object to the individual mandate if it were coupled with a robust public option--presumably because then people would not be told by the government to do business with a third party. That does not appear to be the view of other libertarians on this issue, many of whom would be no happier (and probably less happy) if there were also a public option. But if we take Scheer's view as the starting point, then I think we can connect it to a rather widely shared position: namely that it is wrong for the government to take from A to give to B. That impulse underlies the public opposition to the sort of taking for private redevelopment that the Supreme Court upheld in Kelo.

I would still argue that the libertarian objection to the individual mandate is misguided, but by seeing it as fundamentally about a perceived abuse of government power to serve private ends, we can at least render it coherent.

Der Whopper (Real Title: Stiglitz and the Banks)

noreply@blogger.com (Neil H. Buchanan) — Thu, 29 Oct 2009 09:57:00 +0000

Posted by Neil H. Buchanan

[Note: The first billboard that I saw when I arrived in Austria earlier this week was for Burger King (advertising Der Whopper), which was grimly funny from the standpoint of American cultural imperialism but simply grim for me as a vegan. I am tempted to write this post about being a vegan in a foreign land, but I'll save that for perhaps another day.]

This month's issue of The Progressive (contents apparently unavailable online to non-subscribers) includes an interview with Joseph Stliglitz, the Columbia economist who is perhaps best known for his fierce attacks on the economic orthodoxy known as the IMF-Washington Consensus. Stiglitz, who also won the quasi-Nobel prize for his brilliant work on the shortcomings of markets due to imperfect information, has spent the last few years arguing that the neoliberal prescriptions (deregulating financial markets, radically reducing social safety nets, etc.) that the US and its international arms impose on other countries are both immoral and ineffective.

Perhaps of more current interest, Stiglitz has been an unrelenting critic of the Obama economic team, in particular Larry Summers. Stiglitz recently said of the Obama team that they are "either in the pocket of the banks or they're incompetent." He explains further in the interview that "in the pocket of the banks" need not mean "on the take" but simply describes having adopted a mindset that sees the world the way bankers would like policymakers to see it. That certainly does seem an apt description of Geithner, et al.

Stiglitz makes two further points that I found especially interesting:

(1) "Wall Street banks have used the same tactic that Bush used in the war on terror -- fear -- and they've basically said that if you don't do what we tell you ... it will be the end of capitalism as we know it." The interesting thing about this provocative comparison is that the analogy works not just on the initial level -- two broad policy mistakes that were perpetrated by taking advantage of mass panic -- but it carries through to deeper levels as well. In both the terror situation and the financial crisis, there really is something horrible going on, and it thus makes sense to fear for our continued existence.

That is why, for example, I have defended the TARP and the Fed's actions, because they were (I continue to believe) absolutely necessary to stop the economy from going into freefall. Similarly, many people believe (though I do not, for reasons not pertinent here) that the Afghan war was "the good war" and that things like near-strip-searches at airports are acceptable. The question is not whether doing nothing at all is an option, because it was not in either case.

Stiglitz does not actually disagree that the financial bailouts were necessary. He does argue, however, that the problems were misdiagnosed. For example, the bailout of Citibank pretty much said to the world that Citi was in huge trouble. If, instead, we had forced Citi to restructure, that would not have sent any worse message to the markets or the public, Stiglitz points out. Still, our leaders chose the route that maximized the happiness of the bankers. Stiglitz, in fact, argues generally that the problem is that the government simply did not extract enough concessions from the banking system in exchange for the trillions that we gave them.

(2) Stiglitz endorses the notion of a two-tiered banking system, with a government component. That is, he argues that banks have incentives to prey on the poor, to serve them badly (if at all), and to charge exorbitant fees. He thus suggests that the government could simply set up a banking system to provide basic financial services to the poor (check cashing, etc.), while allowing private banks to deal with people who actually have some ability to protect themselves from predation. Do you think Chuck Grassley and Max Baucus would like that idea? For that matter, what would Chuck Schumer (guardian of New York's financial class, though a progressive on most other issues) spew upon hearing this?

I argued during the Presidential transition in January that Stiglitz would have been a great choice for Obama's chief economist. He keeps proving it.

Auf wiedersehen!

Hate crimes, classification, and motivation

noreply@blogger.com (Sherry F. Colb) — Wed, 28 Oct 2009 16:15:00 +0000

Posted by Sherry F. Colb

My column on FindLaw today focuses on conservative critiques of the hate crime bill that President Obama is scheduled to sign into law today. The law would extend federal hate crime status (subject to federal prosecution) to otherwise criminal acts that involve victims selected on the basis of sex, sexual orientation, and disability. Some critics have suggested that hate crime laws amount to "thought crime" laws because they differentially punish conduct on the basis of what's going on in the perpetrator's mind. My column explains why this critique is ill-founded and would, in any event, prove too much for the critics' own taste.

In this post, I want to raise a distinct question about hate crime laws, which is whether it makes sense to single out classification (e.g., selecting a victim because he is gay) rather than underlying purpose (e.g., harming a person belonging to a group you hate).

Consider an example. A robber might decide to choose a victim on the basis of disability. A victim who is blind, for example, will have a more difficult time identifying the perpetrator than a sighted victim would have. A victim who is in a wheelchair will have a more difficult time pursuing the perpetrator than a victim who is able to run. If a robber chooses the victim in this way, does the fact that he is selecting his victim on the basis of a disability make his crime worse than that of a different robber who does not make this choice? Isn't his choice more opportunistic than it is hateful? And should this matter?

To put these questions into context, consider the murderer who selects his victim because the victim is gay, and the murderer hates gay people. The murder here (of Matthew Shepard, for example) strikes many people as worse than a murder that is not motivated by hatred of gay people (e.g., the murder of an employer in retaliation for his firing of the perpetrator). The crime is truly a "hate" crime, driven by animus, and is not simply opportunistically targeted at a gay person.

In both sorts of cases, the perpetrator is choosing his victim because of the victim's membership in a particular class. What differs is the answer to the second-order question of why the perpetrator is selecting a victim on the basis of a prohibited category. Some reasons for selecting victims on the basis of race, sex, sexual orientation, etc., seem to many to be more reprehensible than other reasons for selecting victims on these bases.

I do not have a definitive answer to this question, but I am inclined to favor the classification approach to hate crimes (to the extent that having hate crimes is a good idea at all, which is a question for another day). Determining why a person chose a particular victim is a challenging enough endeavor, in part because it is difficult to know why people do what they do and in part because even the people in question may not know what ultimately drove them to act as they did. To require an inquiry into what exactly motivated the perpetrator to select the victim for the reason he did adds another layer of complexity and difficulty to the process.

If we want to have laws that specifically penalize hate crimes, the classification-based selection of victims is a useful (if not perfect) proxy for classification-based animus. Requiring greater precision (in the form of "X selected Y because of his gender identity on the basis of X's hatred of people with Y's gender identity) is unlikely to succeed and will commit resources to an inquiry that may ultimately be unanswerable.

Academic Freedom, Chicago Style

noreply@blogger.com (Michael C. Dorf) — Tue, 27 Oct 2009 06:53:00 +0000

By Mike Dorf

In a speech last week at a Columbia University conference on academic freedom, University of Chicago President Robert Zimmer made a number of sensible points about the value of academic freedom, including the observation that the general principles of academic freedom shared by modern universities will be implemented differently at different institutions depending on their respective histories and cultures. In particular, he noted that for his own university, the principles articulated in a 1967 report by constitutional law professor Harry Kalven are especially salient. Zimmer pointed to Kalven's statement "that the University, as an institution, should take no political positions and should remain neutral on such matters (except of necessity those in which it is a direct party), in order to ensure that [it has] a maximally open environment." Here I want to suggest that, as applied by the University of Chicago, this principle is problematic.

Zimmer gives the following example as his chief illustration of the neutrality principle in operation at the University of Chicago: "The Kalven report was the basis for the University of Chicago not agreeing with requests that we divest from companies doing business in South Africa or Sudan." Now this hardly follows as an inevitable consequence of the Kalven statement. One could have thought that a university's management of its investment portfolio makes it "a direct party" in disputes about the propriety of those investments

Indeed, once one chooses to see a university's decision whether to divest as inappropriately political, it is hard to see why the University was not taking a political stand by NOT divesting. The position that moral considerations should not affect investment decisions is, after all, a political position. This is not to say that divesting would have obviously been the right choice. In these debates, there is always a question of whether divestment will be counter-productive or harm the people it is supposed to help. But choosing not to divest for that sort of reason would at least acknowledge the political character of the decision. The Kalven/Zimmer/Chicago view attempts to have it both ways: In declining to draw a distinction between what the university is saying versus what it is doing for purposes of using the Kalven exception for direct action, it potentially treats all university actions that touch on politics as the taking of a political position; but then it purports to disclaim any political position by drawing what appears to be a false act/omission distinction.

The false act/omission distinction says that divesting would be a political act, but of course one could as easily reverse matters and say that holding stock in the companies doing business in South Africa or the Sudan (or wherever) is the act, whereas maintaining a portfolio free of the tainted stock is the omission.

To repeat, I'm not taking a position on divestment per se. My point is simply that a great deal of what universities do is "political" in the sense that people can make a political issue of it. Here's another example: Reputable universities do not hire or tenure biologists who espouse crackpot theories about intelligent design (although academic freedom presumably protects a tenured biologist who newly endorses intelligent design in his work). External pressure might nonetheless be brought to bear on a university--especially a state university--to hire an intelligent designist and the university's resistance might well then be characterized as "political" or, more likely, "politically correct."

If I were applying Kalven's principle, I would want to defend the university's resistance to the pressure in this hypothetical case by saying that the application of the biology department's academic standards either makes the decision not to hire the intelligent designist apolitical or that, if it is political, it is political in a matter that directly concerns the university, and thus falls within Kalven's exception. But Zimmer's narrow conception of the Kalven exception, and his correspondingly broad notion of "politics," may make this approach unavailable.

In the end, it's not even clear to me that the core of Kalven's principle--which is justified in the name of not wanting to chill expression--is a principle of academic freedom rather than simply a prudential principle of governance. Consider one last example. Suppose that a private university in a state that does not recognize either same-sex marriage or same-sex civil unions voluntarily extends various benefits to same-sex partners of university officers, employees and students on the same basis that it extends benefits to opposite-sex married couples. Does this policy have any less of a chilling effect on a philosophy or Divinity professor who opposes same-sex marriage and civil unions than would an official university pronouncement unconnected to a benefits policy? Doesn't the actual provision of benefits by the university make the point that the University supports marriage/partnership equality even more strongly than would a policy pronouncement alone?

To my mind, more important than Kalven's principle of neutrality is a principle that even when the university takes a strong position--whether by acting, speaking or both--dissenting faculty and students are free to take contrary positions.

Can Sex Offenders Be Barred From Church?

noreply@blogger.com (Michael C. Dorf) — Mon, 26 Oct 2009 05:17:00 +0000

By Mike Dorf

As widely reported, including in this Time magazine story, sex offenders who are barred by state law from going near children have begun to invoke their free exercises rights when such state laws are used to keep them from attending religious services in houses of worhsip that also supervise children. The Time article focuses on a North Carolina case, but the problem is broader. Unfortunately, the article does not go into the real legal issues in any depth. I'll take a shot at clarifying.

There is pretty clearly no federal free exercise problem here. Back in the day, the formal doctrine from SCOTUS said that whenever the govt substantially burdened somebody's ability to practice his or her religion, the law or policy doing the burdening had to be subject to strict scrutiny: The govt had to prove that the law or policy was narrowly tailored to serve a compelling state interest. Under Sherbert v. Verner, the strict scrutiny test applied not only to laws that specifically targeted religion as such but also to religion-neutral laws that happened to impose incidental (but nonetheless substantial) burdens on particular people.

In Employment Div. v. Smith, the Supreme Court changed its approach. Under Smith, a law of general applicability--i.e., a law that does not single out religion or any particular religion for special burdens--can be validly applied in circumstances in which it limits the ability of someone to practice his religion; free exercise, as interpreted by the SCOTUS, simply does not require religious exemptions. Technically, the Court distinguished rather than overruled the old cases, characterizing them as requiring exemptions only where there was already in place an administrative scheme for granting other sorts of exemptions or where the claimant's free exercise claim was coupled with some other constitutional claim, and thus posed a "hybrid" right. A small number of lower court cases take the hybrid category seriously, but I do not. It was pretty obviously made up in Smith so that the Court could pretend it wasn't overruling prior precedent. There's no principled basis for the hybrid category and the particular outcome it was used to justify, Wisconsin v. Yoder, involved a hybrid of free exercise and the unenumerated right of parents to direct the upbringing of their children. Yet Justice Scalia, the author of the Smith majority, does not even believe in that unenumerated right, so it is hard to see why he would think it adds anything--except as a way of disingenuously distinguishing rather than overruling Yoder. Thus, the best reading of Smith is that it does not require exemptions from laws that do not specifically target religion.

The North Carolina sex offender law, like those of other states, does not single out churches. It applies equally to bar registered sex offenders from other places children congregate, such as day-care centers, public parks, or schools that have adult education classes at the same times that they have programs for children. Thus, under Smith, there is no federal free exercise problem.

Congress tried to overrule the Smith decision in the Religious Freedom Restoration Act (RFRA), which would have reinstated the pre-Smith requirement that even religion-neutral laws must be subject to strict judicial scrutiny when they substantially burden religion. However, as applied to states and their subdivisions, RFRA was struck down as beyond the enumerated powers of Congress in City of Boerne v. Flores. A subsequent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), applies the RFRA rule to persons who are "residing in or confined to an institution," but registered sex offenders out on parole or probation do not meet that test, so they are stuck with Smith. (A few prisoners have tried to challenge proposed probation conditions during parole hearings, but under the statute's plain meaning they aren't entitled to the protections of RLUIPA once they're released. Indeed, the basis for Congressional power to enact RLUIPA is the receipt of federal funds by state prisons and jails; applying RLUIPA to a parolee/probationer's claim outside a jail or prison would render the Act unconstitutional, per Boerne.)

People like James Nichols (the protagonist in the Time Magazine story) can do much better under state law. Some state high courts interpret their state constitutions to require religious exemptions from generally applicable laws where those laws substantially burden free exercise and do not satisfy strict scrutiny. Other states achieve the same result via state RFRAs.

Nichols, however, appears to be out of luck on this front too, because North Carolina apparently follows the federal rule. I say "appears" and "apparently" because the issue is not entirely free from doubt. North Carolina has no RFRA of its own, and a 1967 North Carolina Supreme Court case, In Re Williams, had this to say about the state's constitutional protection for free exercise:

the term ‘rights of conscience’ as used in Article I, s 26, of the Constitution of North Carolina, must be construed in relation to the right to worship God according to the dictates of one's own conscience. Consequently, the freedom protected by this provision of the State Constitution is no more extensive than the freedom to exercise one's religion, which is protected by the First Amendment to the Constitution of the United States. Clearly, these constitutional provisions do not provide immunity for every act which one's conscience permits him to do, or even for every act which one's conscience classifies as required by ethics, nor do they shield the defendant from a command by the State that he do an act merely because he believes it morally or ethically wrong. It is the right to exercise one's religion, or lack of it, which is protected, not one's sense of ethics.

That language on its face adopts what state con law scholars call the "lockstep" approach, whereby the state's constitutional rights are identical to those protected by the federal Constitution. However, in distinguishing what is required by "ethics" from the exercise of religion, the North Carolina Supreme Court could have been implying that where something truly is a matter of religious exercise--as church attendance undoubtedly is--then it is at least presumptively protected, even against laws of general applicability. Indeed, at the time the Williams case was decided, the operative doctrine in the Supreme Court was given by Sherbert v. Verner, and the Willimans court cited and applied Sherbert's test. So, when in Williams, the North Carolina Supreme Court equated the state constitutional protection for free exercise with the federal First Amendment's Free Exercise Clause, it was equating the former with a substantially broader notion of free exercise--one which requires exemptions if strict scrutiny is not satisfied--than we now have under Smith. It was the Sherbert test, invoked by that name, that Congress sought to restore via RFRA. If Williams is read as adopting that test, then it was never abandoned in North Carolina.

However, at least one lower court in North Carolina has said (in an unpublished 2006 decision I found on Westlaw), that the core holding of Williams is the equation of the North Carolina right of conscience clause with the SCOTUS's First Amendment jurisprudence. This lockstep approach is, to use the language of an article of mine in the 2008 U Penn L Rev, "dynamic" rather than "static," so that when the SCOTUS substituted the stingy Smith test for the more generous Sherbert test, it thereby changed the meaning of the North Carolina right of conscience clause as well.

Finally, let's come to the merits. What about a case from a state that applies the Sherbert test, either as a matter of state con law or a state RFRA? Is there a compelling interest in keeping registered sex offenders away from children? Of course. But it's not at all clear that banning a registered sex offender from a house of worship is narrowly tailored to advance that goal. Certainly one can come up with alternatives: E.g., the registered sex offender must be accompanied by other adults, who assume responsibility for supervising him or her, whenever the offender comes to the house of worship. If and when a state with a Sherbert-style free exercise regime confronts one of these cases, the law will likely be most vulnerable at this second stage of the analysis.

Pay

noreply@blogger.com (Michael C. Dorf) — Fri, 23 Oct 2009 05:37:00 +0000

By Mike Dorf

Herewith, three barely considered thoughts on the news that the govt is slashing pay of some execs at firms that received bailout funds:

1) There is an element of inevitable unfairness here: Execs at firms that received but have since repaid bailout funds do not have their pay slashed even though the bailout may have been instrumental in their firms' continued existence. ("May" because some firms were basically told they were getting bailout funds whether they wanted them or not.) I say this is inevitable because the govt lacks leverage over firms that have returned funds: it is no longer a substantial creditor or equity holder.

2) Perhaps the unfairness was less inevitable for firms that continue to benefit from the bailout because they were counterparties to credit default swaps (and other deals) with bailed out firms. Some such counterparties were at risk of going under and it is hardly clear that the govt paying $100 billion to Firm B, which it then uses to honor its obligation of $100 billion to Firm A is materially different from the govt simply paying firm A the $100 billion. If B would have gone bust absent the govt funds, and if A would have been far enough back in line that it would have lost most or all of the money owed by B, then A has effectively gotten a bailout. It's true, of course, that the govt now lacks the leverage to get pay concessions from A, but that simply means that the govt should have placed greater restrictions on what B could do with the money in the first place. The best that can be said in this respect is that hindsight is 20/20, the economy was on the brink of catastrophe, and so the whole bailout was a rush job that therefore didn't include all the jots and tittles we'd like. The worst that could be said is . . . well, you know, look at Sec'y Geithner's phone log . . . .

3) By worldwide standards, Americans tend not to be egalitarian with respect to compensation. That is, we tend to think that the super-rich are entitled to stay that way, so long as they earned their money more or less according to the rules. Commitments to social welfare programs here have traditionally been less generous than in other developed countries and inequality as such is rarely an issue. Don't believe me? Ask President Edwards. Going forward, it will be interesting to see whether the outrage generated by large bonuses at bailed out firms extends beyond the idea that people shouldn't be lavishly rewarded with public funds for work that is not socially beneficial to support for higher and more progressive taxes in general.

Too Ignorant to Enter into a Contract

noreply@blogger.com (Neil H. Buchanan) — Thu, 22 Oct 2009 07:01:00 +0000

Posted by Neil H. Buchanan

In my new FindLaw column, available here, I continue my recent discussion of the inextricable role of government in making it possible for a country to benefit from a market economy. I focus on the proposed Consumer Financial Protection Agency (CFPA), the brainchild of Harvard Law Professor Elizabeth Warren that would rein in predatory lending and would be designed to allow regular people to engage in responsible borrowing.

My argument in that column is that those who oppose the CFPA on the ground that it inappropriately injects government into private transactions are simply incorrect. Private transactions, and especially loans, are only possible (or appealing) because they are enforceable by government. There is a regulatory system in place that shapes the market for consumer loans, and that system is currently very pro-lender. (I do not even mention the change in the bankruptcy law in 2003 that tilted the playing field even more decidedly in favor of lenders.)

In passing, I mention in the column that it is especially appalling to claim that we can expose the average American to the tender mercies of the consumer loan market when we as a society have failed so abysmally to educate so many of our citizens. If the social Darwinism of our time insists that people must read the contract and protect themselves, then that makes it all the more important that we make sure that they receive the education necessary to be able to understand a contract when one is offered.

This observation might lead us to propose an expansion of the doctrine that provides a defense in contract on the basis of mental deficiency (similar to the doctrine of "infancy," in which anyone under 18 cannot be held to a contract -- even though they can enforce a contract against others). We could essentially say to Congress: "Either give people a decent education, or give them the ability to protect themselves against their own ignorant errors in daily commerce." As initially appealing (or, perhaps, rhetorically delicious) as that idea might be, however, it ultimately misses several key points.

First, as I note in today's FindLaw column, even educated people do not read contracts. Because I am a Contract Law professor, I go out of my way to read as many contracts as I can, but I click through licensing agreements as fast as anyone. The presumption that we could have a system of contract with fewer or no equitable defenses if only everyone had a J.D. is fatuous. Contracts are often inherently complicated and often require more education than could reasonably be provided to the vast majority of citizens. (The consumer loan contract in Williams v. Walker-Thomas Furniture, the famous "unconscionability" case, is a great example of a contract that is impenetrable even after multiple readings by people with years of higher education.)

Second, the classical ideal of face-to-face, issue-by-issue negotiations that underlies contract law is simply inapt for the modern economy. Acting as if we can simply give people better educations and then send them out on their own in a world of basic contract law ignores the change that mass consumerism wrought on the notion of contracting. Contracting is now too expensive to be done the old fashioned way. When the assembly line replaced individual craftsmanship, non-negotiated contracts replaced old-fashioned customized contracts. The law has never really caught up to that change, notwithstanding Llewellyn's best efforts. Pushing the education angle inadvertently pushes us back in the direction of this outmoded way of thinking about contracting.

Finally, third, the "either educate them or protect them from harsh contract outcomes" approach would almost certainly lead to a disastrous conclusion: that it is much cheaper to change the law of contracts (to treat adults as if they were infants or mentally defective) than it would be actually to educate them. In fact, it would not ultimately be cheaper, because the choice to give up on people's education would undermine future economic prosperity. However, in exactly the same way that going cheap on bridge repairs looks financially appealing until it is too late, the high cost of failing to educate people would not be obvious until it is much too late. (The non-economic benefits of education are arguably even more important.)

When I was clerking in Oklahoma (which at the time ranked 45th in the country in overall educational attainment, if I recall correctly), I discovered up close what a truly uneducated populace is like. Commerce simply did not work as smoothly as in other places that I have lived. One consequence of mass ignorance, moreover, is that education is not respected. As one prominent Oklahoman put it to me, with an exaggerated and sardonic twang: "We're just too dumb to educate ourselves." We must always resist any temptation to make it seem acceptable to keep people in ignorance.

Positive Versus Negative Impingements on Liberty

noreply@blogger.com (Michael C. Dorf) — Wed, 21 Oct 2009 02:20:00 +0000

By Mike Dorf

In my latest FindLaw column I consider the libertarian objection to the proposed individual mandate in most of the health care reform proposals now before Congress. Some libertarians say that it is both unprecedented and categorically worse for the government to require people to do something affirmative (such as buying health insurance) than it is for the government either to forbid some action or to require some other action as a condition of engaging in an activity (such as practicing medicine) that the govt could prohibit. I end up concluding that the objection is not sound.

Here I nonetheless want to try to unpack the intuition that there is something worse about affirmative impositions on liberty than prohibitions. Let's begin with a pair of examples that show how an affirmative imposition feels worse. Suppose the govt says that I must be at jury duty from 9 to 5 for a week. That is clearly a greater restriction than a negative imposition that forbids me from, say, going to the movies during that same time. In the first case, I can't do anything other than go to jury duty; I can't even go to the movies. By contrast, in the second case, I can do anything I want--other than go to the movies. So the affirmative imposition seems MUCH more of an imposition than the negative one. And we might think this is typical: Prohibitions take one option off the table (the prohibited conduct) but leave us free to do anything else, whereas affirmative obligations tell us exactly what to do. They leave no freedom of movement.

But the foregoing juxtaposition does not appear to be an inevitable feature of affirmative versus negative impositions. Consider an example suggested to me by Neil Buchanan: Suppose that a parolee is under a form of house arrest. The parole condition could state that the parolee must be in his house at all times--an affirmative obligation to be somewhere--or it could state that the parolee is forbidden from going anywhere outside his house at any time--a negative imposition. Yet obviously these conditions are identical. Indeed, we could frame a much more restrictive negative prohibition--e.g., don't leave your house--than a positive one--e.g., you must be in North America. The key is the scope of the restriction, whether positive or negative, not whether it is positive or negative.

Can every affirmative obligation be turned into an equivalent negative one and vice versa? I don't think so. For example, if I am told that I am forbidden from doing anything other than being at jury duty, that still doesn't get me actually serving on the jury without some sort of affirmative obligation--except in the trivial semantic sense of a prohibition on not serving on the jury. But even if we acknowledge that there are some such cases where an affirmative obligation cannot be turned into a negative one except by double negatives, it still does not follow--for reasons I explore in the column--that affirmative obligations are necessarily or even generally more restrictive than prohibitions.

Won't You Be My Neighbor?

noreply@blogger.com (Michael C. Dorf) — Tue, 20 Oct 2009 04:07:00 +0000

By Mike Dorf

Having arguably called for the abolition of football last week (and that was before the Saints crushed the Giants!), I shall now boldly venture into the rules of baseball, albeit for purposes of making a larger point about the law on the books versus the law in practice: During Saturday's ALCS game 2, umpire Jerry Layne called Yankee Melky Cabrera safe at second base when Angels shortsop Erick Aybar straddled but did not make contact with second base before throwing on to first for what Aybar thought would be a double play. Layne had enforced the rule as written but Aybar and Angels Manager Mike Scioscia said that he had thereby failed to honor the unwritten "neighborhood rule," which says that if a second baseman or shortstop steps in the neighborhood of the bag on a double play, the runner is out. This supposed neighborhood rule is meant to protect infielders against baserunners barreling or sliding spikes up into them.

The particular play is of only academic interest because it did not materially affect the outcome of the game (except perhaps in the unknowable butterfly-beats-its-wings sense): the Angels got out of the inning without allowing the Yankees to score. Further, there has been some debate among baseball fans and writers about whether Layne had respected the neighborhood rule earlier in the game. Fox announcer Tim McCarver first said he had, then later recanted after his staff reviewed earlier double plays, but some bloggers have said that those Fox staffers themselves got it wrong and that McCarver was right in the first place. Whatever.

Here I want to raise the more general question of when an unwritten rule should be permitted to trump a written one. Let's begin by drawing a distinction with a different situation: Often, in baseball and in other rule-governed activities, including law, the rule as written is silent or ambiguous on some point, and an unwritten rule supplements it. For example, there is an unwritten rule that allows managers and players to argue with umpires about most calls but not about balls or strikes. There are also supposedly some "magic words" that will get one thrown out of the game. These unwritten rules supplement but do not contradict the written rules governing ejections.

By contrast, according to the rulebook, the neighborhood play should result in the runner being called safe but (if used by the ump) it results in the runner being called out. (A related neighborhood rule sometimes permits a middle infielder to tag the dirt in the neighborhood of a runner attempting to steal second base and get an out call if the throw beats the runner.) This is quite closely analogous to the situation I used to face when I lived in Manhattan: The official local law forbade dogs off leash in Central Park at any time, but the Park police routinely did not enforce the rule in the morning before 9 A.M. Well-behaved dogs could romp freely in various areas of the park that were known to the local dog owners. Likewise, marijuana possession in the Netherlands is a misdemeanor, but the government has adopted a policy of non-enforcement.

Now the question: In circumstances such as the foregoing--in which the written rule could easily be replaced with a formalized version of the unwritten rule--what are the costs and benefits of leaving the written rule as is but enforcing a contrary unwritten one? The costs are pretty easy to identify: The ever-present possibility that the written rule will be enforced creates anxiety for those subject to it, while opening the way to abuse by officials in the form of arbitrary or discriminatory enforcement; and even if the unwritten rule is uniformly enforced, the very fact that the persons subject to it must come to understand that the law is not what is written down can undermine the core principle of legality and breed disrespect for law more broadly.

Are there compensating benefits? In some contexts, yes. Formalizing an unwritten rule could communicate to the public that the conduct it permits is laudable or at least harmless. The Dutch marijuana example is a case in point. Actually legalizing marijuana would send a signal that there is nothing harmful about it, whereas the policy of non-enforcement of the prohibition is (presumably) premised on the notion that enforcement itself would do more harm than good (as we see from the war on drugs here), even though marijuana use is unhealthy.

It's much harder to make the case that Major League Baseball or the NYC parks authorities are worried about condoning bad behavior, although it is still possible to make out a case for keeping the unwritten rule unwritten even here. In both instances, one might worry about slippage: If you think that no rule will be strictly enforced, then formalizing the unwritten rule will lead to a still looser rule in practice. So long as the rule says the middle infielders must make contact with the bag, the "neighborhood" will be defined narrowly; if the actual formal rule said "neighborhood," we might expect umpires to start calling even more players out. This justification is familiar to drivers. When the speed limit is 55 mph, drivers routinely drive at up to 65 mph without much fear of being ticketed. But actually raising the speed limit to 65 mph will lead to drivers going at 75 mph.

Whether the benefits of keeping the unwritten rule unwritten outweigh the costs identified above is difficult to judge in the abstract.