Dorf on Law

Pointless Factfinding in the Boies/Olson Same-Sex Marriage Case

noreply@blogger.com (Michael C. Dorf) — Mon, 06 Jul 2009 05:29:00 +0000

As I discussed earlier, I share the concern of LGBT lawyers who worry that the federal court litigation now being pursued by uber-lawyers David Boies and Ted Olson to overturn California's Prop 8 could backfire, and set back the cause of same-sex marriage by a decade. Now for an update on the litigation.

Last week, Federal District Judge Vaughn Walker (appointee of Pres Bush 41) issued a 3-part ruling. Part 1 is unobjectionable. Part 2 has implications beyond what Judge Walker seems to acknowledge. Part 3 is simply bizarre.

1) Judge Walker allowed the proponents of Prop 8 to intervene in the case to defend its constitutionality. That's fair. AG Jerry Brown would likely provide less than a vigorous defense, and neither the plaintiffs nor any other party objected to the sponsors' intervention.

2) Judge Walker also declined to rule on the plaintiffs' motion for a preliminary injunction. He decided instead to move expeditiously to a trial on the merits, in substantial part out of a desire to avoid the sort of legal confusion that might ensue were he to grant the preliminary injunction, only then to void it after a trial on the merits won by the defendants: What would happen to any couples married during the pendency of the preliminary injunction? This issue would replicate the problem CA already faces from the "grandfathered" same-sex marriages that were entered after the initial CA S Ct ruling finding a right to same-sex marriage but before the passage of Prop 8, eliminating that right.

So what's the problem? Just this: If Judge Walker is right, then the same logic would suggest that even if the plaintiffs win on the merits, they shouldn't get injunctive relief which could be dissolved on appeal at the 9th Circuit, the en banc 9th Circuit, or the Supreme Court. True, a victory on the merits would--as a technical legal matter--change the balance because it would mean that the plaintiffs are (as far as the technical doctrine is concerned and as is true in less fraught cases) more likely to prevail on appeal. But no one seriously thinks that the decision by one district court judge is a predictor, one way or the other, of what the higher courts will do. So, if avoiding confusion justifies denying preliminary relief, it would also justify the district court, if it should grant "final" injunctive relief, in staying its mandate pending final disposition on appeal.

3) Judge Walker directed the parties to marshall their evidence on a number of "factual" questions. These include:

(1) the history of discrimination gays and lesbians have faced; (2) whether the characteristics defining gays and lesbians as a class might in any way affect their ability to contribute to society; (3) whether sexual orientation can be changed, and if so, whether gays and lesbians should be encouraged to change it; and (4) the relative political power of gays and lesbians, including successes of both pro-gay and anti-gay legislation.

Those are all "facts" relevant to the determination whether sexual orientation is a suspect classification for equal protection purposes. In addition, Judge Walker said:

To determine whether the asserted state interests can survive plaintiffs’ constitutional challenge, the record may need to establish: (1) the longstanding definition of marriage in California; (2) whether the exclusion of same-sex couples from marriage leads to increased stability in opposite-sex marriage or alternatively whether permitting same-sex couples to marry destabilizes opposite-sex marriage; (3) whether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment; and (4) whether and how California has acted to promote these interests in other family law contexts.

I'll admit that if an extra-terrestrial just arrived on Earth and started reading the bar review materials on constitutional law, he, she or it could indeed come away with the impression that the foregoing eight questions--which do indeed involve questions that are at least in part factual--need to be resolved by the sifting and weighing of evidence. But any Earthling who actually understands how constitutional adjudication on these issues works will also understand that what Judge Walker proposes to do is likely to be worthless.

Take the level of scrutiny first. If it's true that the first four questions are factual in nature, then it is possible for sexual orientation to be a suspect classification in Utah but not in California (or vice-versa!). But equal protection doctrine simply does not work this way. Classifications are suspect nationwide or they are not.

The second set of questions is slightly more "factual." We could imagine that something peculiar to California's history could render a state interest sufficiently compelling to overcome strict scrutiny (if that is the standard) in that state, but not so in another state. At least that's a conceptual possibility. To take a different example, suppose there were some state prison system that had a long and continuing history of prison race riots. We might imagine that in such a state, racial segregation in prisons might satisfy strict scrutiny even though it wouldn't in another state. But in the same-sex marriage context, there is really no state-by-state variation of this sort, and nothing in the evidence likely to be offered in answering the second four questions will be peculiar to California.

To put the point differently, a district judge's findings of fact are reviewed by higher courts under a deferential standard: They are upheld only if they are "clearly erroneous." If Judge Walker is right that these issues are indeed issues of fact, then he could issue one set of findings and a different judge in a different case seeking a federal right to same-sex marriage--even a different case in federal court in California!--could issue a completely contrary set of findings, and neither judge could be reversed, because neither judge would be "clearly" wrong. And we know that would be nuts.

There is simply no way that the 9th Circuit or the Supreme Court, if inclined to disagree with Judge Walker on the bottom-line legal conclusion about whether Prop 8 is valid, would end up agreeing with him because obligated to defer to his findings of fact. In short, although the issues Judge Walker has defined as factual do indeed seem to call for evidence, there is no way for our system of litigation to treat them as ordinary litigation facts. They are what we constitutional lawyers call "legislative facts," a somewhat misleading term used to connote facts that are established for all cases by a single body. Here that body will be either the Supreme Court or, if it denies review, the 9th Circuit (for states within its territory). Judge Walker's factual findings will be irrelevant, except perhaps as post hoc justifications for judges and Justices up the review chain who happen to agree with his legal conclusions.

Posted by Mike Dorf

PAKISTAN: An "Impending Humanitarian Disaster"

noreply@blogger.com (Anil Kalhan) — Sat, 04 Jul 2009 14:32:00 +0000

(Cross-posted from SAJAforum)

That's what Audil Rashid and Mian Nazish Adnan sound the alarm about in the July 4, 2009 issue of the British medical journal The Lancet, following their recent visits to camps set up to house internally displaced persons (IDPs) fleeing the conflict zone in Pakistan's North-West Frontier Province. While Americans celebrate the Independence Day weekend with barbeques and fireworks, Rashid and Adnan paint a grim picture of the crisis in Pakistan:

From the very beginning it was evident that the government had underestimated the human cost of the military operation. As several camps were hastily set up to cater to the massive influx of IDPs, reports about the lack of even basic amenities in these camps began to emerge. Excessive heat (daytime temperatures soaring to 40°C and above), no electricity, food and water shortages, poor sanitation, and lack of proper health care are some of the immediate problems being faced by IDPs....

Lack of proper toilets and sanitation, unsafe drinking water, infrequent bathing, high air temperatures, inadequate disposal of solid waste, and the complete absence of a proper drainage system at the refugee camps are the main causes of worry for relief health workers. “This is the making of a disaster. These camps have been established on open tracts of land used for agricultural purposes. There are snakes, rats, and scorpions here. At night, when it is pitch dark because of no electricity, people sleep on the ground and are vulnerable to snakebites”, said M Idrees Mirza, a doctor who runs a private clinic in Rawalpindi city and is working voluntarily in the camps.

“Conditions in these camps make them perfect breeding areas for mosquitoes and many varieties of insects. In my opinion, there is a very high probability of an outbreak of any disease like mumps, measles, scabies, malaria, diarrhoea, polio, and leishmaniasis”, said another health worker working for a respected NGO who spoke to The Lancet on condition of anonymity. “We need medicines, doctors, and qualified health workers. And we need them urgently. Any delays might result in a human catastrophe of unimaginable proportions.”....

Eager to establish its writ over the Swat Valley, the government seems to have created a health crisis which it may not be able to overcome. [link; registration req'd]

Two letters in the same issue of The Lancet offer additional details. But as dire as the situation has become within the camps, K.M. Bile and Assad Hafeez note in one of those letters that the government camps house only 20 percent of the IDPs -- who may now total as many as 2.5 million individuals, almost half of them children:

Without counting the great costs to themselves, families in the local community are looking after more than 1·73 million people, in accordance with the local tradition of hospitality. Most displaced people have been accommodated within family homes; others are in schools, mosques, and other community buildings.... Although a proportion of host families are related to or friends of the displaced people, many have welcomed strangers. [link; registration req'd]

Continue reading at SAJAforum....

Posted by Anil Kalhan

Sabbatical in Ithaca (mostly)

noreply@blogger.com (Neil H. Buchanan) — Fri, 03 Jul 2009 07:01:00 +0000

One of the most important features of academic life is the research sabbatical. For any professor, being able to set aside teaching temporarily to focus exclusively on one's scholarship is an opportunity to be cherished. Doing so in a new locale (or locales), interacting with scholars at different universities, makes the sabbatical that much more valuable.

Of course, it is a special pleasure when one can combine these professional advantages with personal benefits. As such, I am especially fortunate to have the opportunity to spend most of the next 12 months in Ithaca, NY as a Visiting Scholar at Cornell Law School. Cornell's qualities as a scholarly community are well known to the readers of this blog. In addition, it just so happens that my closest friends (Mike Dorf and Sherry Colb) are on the faculty at Cornell Law. What luck that I would find myself here for a year! OK, maybe there was some planning that went into this . . .

The business-meets-pleasure aspect of the sabbatical will continue during the coming academic year, as I will spend a little over a month this Fall in residence at the Vienna University of Economics and Business, with side trips to deliver lectures in Italy, Spain, England, and Scotland (and maybe elsewhere). I will also escape from the worst of the Ithaca winter by spending a few weeks in Australia and East Asia at various conferences in January and February. (Speaking of extreme weather, I arrived in Ithaca three days ago, on June 30. While there were many good things about living in DC, I must say that being gone in July, August, and September will not feel like a sacrifice on my part.)

My two major research projects for the year include turning my work on intergenerational justice into a book, and continuing my work on federal budgeting. As the year goes along, and as my interactions with the faculty at Cornell and elsewhere deepen, I am sure that other research ideas will emerge. I will also continue to blog here regularly (probably sticking to the twice weekly schedule that has been my norm since the beginning of the year) and to write guest columns on FindLaw with some frequency.

Most importantly, however, I should simply take this opportunity to thank my home institution (GW Law School) for granting me this sabbatical and to thank my hosts at Cornell for welcoming me. And a special thanks to Mike and Sherry as well.

-- Posted by Neil H. Buchanan

The Right of Confrontation and Civility at the SCOTUS

noreply@blogger.com (Sherry F. Colb) — Thu, 02 Jul 2009 17:40:00 +0000

I have a column that appears today on FindLaw, discussing the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts. The Court held in Melendez-Diaz that prosecutors should not have been allowed to introduce scientific certificates into evidence to prove that a substance found on the defendant was cocaine, because the analyst who certified the finding did not testify and was thus unavailable to the defendant for cross-examination. My column discusses how the Sixth Amendment Confrontation Clause has come to give rise to such a ruling and why the Court’s relatively new approach to hearsay and the Sixth Amendment may not be long for this world.

One of the observations I make in my column is that the majority expresses great confidence in the result that it reaches, while the dissent (speaking for four Justices) expresses great disdain for the same. Though the column provides some quotations from the dissent, I will here give readers some more, from both sides of the fence:

Majority: “Respondent and the dissent advance a potpourri of analytic arguments in an effort to avoid this rather straightforward application of our holding in Crawford.”

Dissent: “Now, without guidance from any established body of law, the States can only guess what future rules this Court will distill from the sparse constitutional text.”; “It is difficult to confine at this point the damage the Court’s holding will do in other contexts.”

The tone is remarkably similar in the majority and in the dissent: it is one that combines befuddlement with contempt. To translate, it is as though each side of the dispute finds it remarkable that a group of intelligent and well-educated people who read the same prior cases that it did could reach such an idiotic result. In keeping with a theme that Neil Buchanan raised a few weeks ago on the question of civility among academic colleagues, I want to suggest here that Melendez-Diaz reflects a breakdown in civility among the Justices.

Although Justice Scalia has written a great many opinions that are perfectly civil, over the years he has also written opinions (whether for the Court, in concurrence or dissent or in his occasional dissents from denials of certiorari) that express disrespect for one or more of his fellow Justices. Anecdotal evidence suggests that this behavior extends beyond written opinions. According to published accounts, Scalia clerks have heard the Justice say on more than one occasion, “What's a smart guy like me doing in a place like this?” The comment, even if somewhat tongue-in-cheek (as one has to hope it was) bespeaks impatience with having to work with people who do not see the truth with the perspicuity that he does.

I have often credited Justice Scalia in my classroom with having almost single-handedly prevented the very conservative revolution he was installed to foment. By insulting Justices Kennedy and O’Connor (among others) he likely pushed them to moderate their views rather than join him on some issues where they would have otherwise been inclined to agree with him.

For a long time, other Justices have managed to rise above the behavior and let Justice Scalia remain the outlier. In Melendez-Diaz, however, we see evidence that this may no longer be true. There are places in Justice Kennedy’s dissenting opinion, for example, in which the style is unmistakably Scalian, even though he is disagreeing with Justice Scalia.

In one place, Justice Kennedy writes that it may not be possible for an analyst (who signed a certificate that is later offered in evidence) to come to court in time to be cross-examined by the defendant. “He or she may be ill,” Justice Kennedy explains, “may be out of the country… Or may at that very moment be waiting outside some other courtroom for another defendant to exercise the right the Court invents today.”

Such writing is unquestionably fun to read. Of all of the Justices’ opinions, I enjoy Justice Scalia’s the most. They are stylistically tight, interesting, witty, and often devastating in their facility with language and argumentation. For the Justices who must work with him, however, it is probably a good deal less fun to see one’s work disparaged and one’s good faith questioned. To use a phrase coined by Stanford Professor Bob Sutton, Justice Scalia may thus have successfully engaged in “homosocial reproduction” – bullying others until they themselves became bullies. If so, the overall snappiness of the Court's prose may pick up, even as the Justices enjoy their jobs less.

Posted by Sherry F. Colb

Ricci and Steam

noreply@blogger.com (Michael C. Dorf) — Wed, 01 Jul 2009 19:08:00 +0000

In my latest FindLaw column, I address 3 main questions posed by the Supreme Court's decision in Ricci v. DeStefano: 1) Why did the Court order judgment for the plaintiffs, rather than remanding for further proceedings in light of the new legal standard? 2) Will this Court ultimately find that Title VII's disparate impact rules are unconstitutional, as suggested by Justice Scalia in his concurrence? 3) What impact will the case have on the Sotomayor confirmation hearings?

In the course of considering that last question, I call attention to the curious concurrence of Justice Alito, in which he contends that the New Haven fire dep't may not have been worried about being sued in a disparate impact case at all, but simply caving to the pressure of racial politics. I note that his characterization of the Reverend Boise Kimber resembles the character of Reverend Reginald Bacon in Tom Wolfe's Bonfire of the Vanities. Bacon famously says:

"You're investing in steam control. And you're getting value for money....People own the boilers, but that don't do 'em a bit of good unless they know how to control the steam. If you can't control the steam, then it's powder valley for you and your whole gang. If you ever see a steam boiler go out of control, then you see a lot of people running for their lives."

Justice Alito suggests that the New Haven fire dep't caved to Kimber's threats, fearing that he might otherwise release the steam. Alito, quoting the Appendix to the cert petition, says of Kimber: "he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince." That's strong stuff, no doubt, but does it make the point that Justice Alito assumes?

If the fire dep't did bow to pressure from Reverend Kimber, it was pressure that was itself due to the disparate impact of the firefighter promotion test results. Kimber was not exerting pressure based on some unrelated concern. He did not, for example, threaten a riot unless government jobs were given to political cronies. Rather, Kimber wanted to see some African-American firefighters promoted to lieutenant and captain, and was concerned that the combination of the "rule of three" and the test results would block that. This was exactly the same concern stated--albeit less flamboyantly--by other critics of the test.

Justice Alito appears to be saying that Kimber's concern--and thus the concern of the city officials who voided the test results--was not that the test was unfair, but that he wanted African Americans promoted regardless of the fairness of the test. But if that's the objection, then Kimber is irrelevant; Justice Kennedy made exactly the same point in the majority opinion by saying that a statistical disparate impact alone does not make out a Title VII case. The city either did or did not present sufficient evidence to show that the disparate impact could violate Title VII.

There is one way around that conclusion that might nonetheless make Kimber relevant, I suppose. Imagine that the city officials, upon learning of the test results, consulted counsel and reasonably concluded both: a) that there was a substantial possibility that the city would be held liable if sued for disparate impact; and b) that nonetheless the test results should be used. Then Reverend Kimber makes noise and the city officials decide that to appease him, they should void the test. Even though they would have an objectively reasonable basis for voiding the test (fear of liability), that reason would not be the real reason, which would be fear of Kimber, which in turn would transfer Kimber's impermissibly race-based motive to the city. This is presumably what Justice Alito means in suggesting that fear of disparate impact liability was pretextual.

But of course conservatives typically dislike this sort of subjective motive inquiry when conventional civil rights plaintiffs bring suit. Do Justices Alito, Scalia, and Thomas really think that city officials should have to have their depositions taken simply because a rabble-rouser made statements that might have been the basis for a city decision that was (by hypothesis here) otherwise objectively grounded? The opinion they joined (in another 5-4 decision with just this lineup) in Iqbal v. Ashcroft (discussed by me here, here and here) strongly suggests otherwise.

Posted by Mike Dorf

Legislating At Scale When the Climate's Wrong

noreply@blogger.com (Jamison Colburn) — Wed, 01 Jul 2009 04:05:00 +0000

Lately I’ve become convinced that scaling up to attack truly massive environmental problems like climate disruption is a kind of trap. To engage such problems in institutions that are big enough (like our Congress), the necessities of making those institutions actually operate inflate your costs and complications to arresting proportions. When you consider just how unimportant "median" voters are today—and how scarce politicians who represent them are in our gerrymandered Congress—the possibilities for "public reason" seem to shrink. Beyond that political calculation, you’ll have an even harder time deciding whether going to all the trouble is worth it given the limitations inherent in law as a social institution, etc. This is perhaps just another way of restating some old political wisdom, but I think it has sobering implications for American citizens who think about confronting vast environmental problems.

Waxman-Markey (WM) is my case in point. (In a comment to my post last week, Mike suggested this is true of many big problems in Congress lately. I’m inclined to agree but have no expertise on the issues he mentioned.) There has been a lot of talk about the path WM took out of the House. It was a less-than "deliberative" process, to be sure. Rumor has it that few members of Congress even saw the text of the bill (all 1,300 pages of it!) before they voted because a huge managers’ amendment (300+ pages worth) reordered the whole thing the evening before. This embarrasses the standard model of "representation," surely—not to mention deliberation in any traditional sense.

Senators will at least have time to read WM and they do represent whole states. But does that even matter? Will any single Senator know enough about the enormous array of issues this beast raises to reach an informed judgment on it as a whole? Are enough states big and diverse enough to smooth out the incentives senators are facing? I’m thinking "no" on each of these, to be completely frank.

WM can be boiled down, of course. In a sense, it is an effort to avoid the unavoidable. To make carbon-based fuel less prevalent, you have to make it a lot more expensive—exactly what politicians don’t want to do, especially in recessionary times. Putting aside all the talk about "clean" energy futures and bending the curve on GHGs, until society puts the true cost of fossil fuel into its pricing, too many of our markets will be malfunctioning.

It may be reason enough to support WM just to keep up some momentum on the problem of global climate disruption. This is probably the White House’s thinking—that and the possibility that this bill can be ratcheted along down the line. But if that is the reason for pushing this bill, keep in mind that our partners around the globe are taking real measurements of this "commitment" — and will have them in mind in Copenhagen in December.

The reporting I’ve seen puts the Senate's "maybes" around 40-45 (w/ ~35 certainly "for" and ~22 certainly "against"). A half-dozen of the confirmed "fence-sitters" are up for re-election in 2010. So it's worth keeping an eye on senators Dorgan, Gregg, Lincoln, McCain, Murkowski, and Specter.

But it's also worth recalling that the Senate is the home of tactics like the "hold." Saxby Chambliss (R-GA) reportedly has a hold on Cass Sunstein’s nomination to lead OIRA, for example, because he thinks Sunstein will use that office to push for animal rights. Now, to be sure, immediate, obviously existential threats generally rule out bogus tactics like Chambliss's no matter the scale. Most environmental problems lack such structure, though, and my sense is that virtually every legislature has better external checks than our Congress. So the only thing I’m left wondering at this point is where is the "Harry and Louise" PR campaign against fossil fuel when you need one?

Posted by Jamie Colburn

Where Do Media Reputations Come From?

noreply@blogger.com (Neil H. Buchanan) — Tue, 30 Jun 2009 17:00:00 +0000

Earlier this month, NBC and its affiliates marked the one-year anniversary of the untimely death of their former colleague Tim Russert, the long-time host of "Meet the Press." It seemed a bit odd even to mention such an anniversary, but I suppose that one of the perks of being in the media is that you can celebrate your friends whenever you like. When Keith Olbermann devoted an entire segment of his show to another round of over-the-top eulogies for Russert, however, this was too much. It reminded me of an extremely harsh -- but completely accurate -- take-down of Russert by Lewis Lapham in Harper's (available here) that was mostly devoted to describing the almost comic public displays of grief over Russert's passing last summer by the national media and political establishments.

The problem is not in grieving the death of a fellow human being, of course, but in the completely baseless claims made by Russert's eulogists that he was a steely media conscience who forced the powerful to admit their wrongs and who called them on their many lies. This was nonsense. Russert's show was fluff dressed up as serious discussion, and no one ever feared Russert's ability to get them to break down and confess, since he possessed no such ability (or, if he did, he refused to take it out for a walk). As one of Russert's eulogists actually admitted (as if this were a good thing), politicians thought of "Meet the Press" as "a place to be loved." Another excellent, honest review of Russert's work (also in Harper's) is available here. Al Franken's The Truth, With Jokes also exposed Russert's uselessness as an interviewer.

The complete disconnect between Russert's performance on his show and his reputation as Edward R. Murrow reincarnate might have been exacerbated by reactions to his death and the natural tendency to speak well of the dead, but his reputation in life was similarly, oddly wrong. It was simply one of those things that people would repeat as a known truth. Galbraith's conventional wisdom was never more conventional.

A current example of this phenomenon is the frequently repeated claim that Newt Gingrich is a font of ideas. Even supposed liberals will say that, love him or hate him, one must admit that Gingrich is an idea man. Recently, for example, the Times's Gail Collins wrote: "The two biggest names [currently being mentioned as possible Republican presidential candidates] are Newt Gingrich and Sarah Palin, one of whom has too many ideas while the other has no ideas whatsoever." Again, where did this bit of conventional wisdom come from?

When it comes to "ideas," of course, one must be especially careful (and not just in light of Gary Hart's empty "new ideas" campaign in '84), because even people with genuinely innovative ideas will admit that there are no new ideas under the sun and that their own ideas are simply built on those of others. For Gingrich, though, it is not a matter of new versus old ideas. What exactly are the ideas that he is so widely credited with holding? The Contract on America was a hash of standard Republican talking points that every politician already knew by heart. Even if we give Gingrich credit for having the idea of putting those old ideas together into a Contract that the party could sell in an election, however, what has he done since 1994 that makes him anything but a one-hit wonder?

As one commentator put it, Gingrich's current persona is based on what we might call "partisan Tourette's," causing him to say anything that comes to his mind to criticize Democrats (even when Democrats are saying things that Ronald Reagan once said -- or for that matter, things that Gingrich himself has said at other times). That is an attack dog, not an idea man. Is Gingrich's reputation based on his holding a Ph.D. in history? Surely not. Plenty of people in Congress have had advanced degrees in areas other than law, but only Gingrich is said to be this great idea machine.

Some narratives do make sense, of course. It is easy to see why Joe Biden has a reputation for shooting off his mouth, such that everything he says (even the wholly unexceptional) is now run through the "There goes Joe again!" story line. Back in the 70's, Gerald Ford's reputation as a clumsy oaf was completely inaccurate, but a couple of incidents (tripping on some stairs, hitting a few errant golf shots) at least were the traceable basis of a conventional wisdom that Chevy Chase rode to fame.

The Russert and Gingrich situations are different, howver, because there does not seem to be any basis for their reputations. Even outside politics, such story lines often take hold. Despite a regular supply of behavior that proves the contrary, for example, one can hear any sports reporter on any day talk about what a great "team player" LeBron James is. His press agent definitely deserves a performance bonus.

My complaint is not that I find Russert, Gingrich, and James less pleasing than others do. Differences of opinion are inevitable. It is when we are told that "one must admit that ..." something is true -- that Russert was a tough interviewer, Gingrich is an idea volcano, and James cares only about winning -- when it is either clearly not true, or at least highly contestable, that I protest.

-- Posted by Neil H. Buchanan

SCOTUS, Corporations and Unions

noreply@blogger.com (Michael C. Dorf) — Mon, 29 Jun 2009 14:44:00 +0000

The Supreme Court decided all but one of the cases on its docket before adjourning for the Term. The case held over for reargument is Citizens United v. FEC. That case involves the application of campaign finance rules to a movie that was highly critical of Hillary Clinton. I discussed this Term's oral argument here. In its order setting the case for reargument, the Court has added the following question presented: "For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?"

McConnell v. FEC was more or less gutted two Terms ago by the Court's subsequent decision in Wisconsin Right to Life v. FEC, holding that the key provision upheld on its face in McConnell was invalid as applied. The more interesting issue here is whether the Court will overrule Austin, which upheld campaign limits on expenditures from general corporate treasury funds. If the Court does so, then pairing that ruling with the line of cases that comes out of Abood v. Detroit Bd. of Educ., we will have the following truly remarkable rules:

1) (Anti-Austin): The Constitution forbids Congress from restricting the use of general corporate treasury funds for political activity;

but

2) (Abood): The Constitution itself forbids unions from using dues of non-union members of the bargaining unit for political activity.

In other words, the Constitution will then be read as protecting corporate speech but restricting labor union speech. In neither instance will there be a role for Congress or state legislatures. I suppose it will be possible to create a neutral-sounding set of rules that requires business interests to have unfettered influence over politics but forbids unions from doing the same. But it will be awfully hard to take those rules seriously. Who says the Constitution does not enact Herbert Spencer's Social Statics?

Posted by Mike Dorf

Ricci First Take (updated with working link)

noreply@blogger.com (Michael C. Dorf) — Mon, 29 Jun 2009 14:15:00 +0000

The Court ruled 5-4 that the New Haven Fire Dep't violated Title VII by throwing out the test. The Court created a safe haven against Title VII disparate impact claims to avoid the damned-if-you-do-damned-if-you-don't problem. I'll post at length on the case later in the week to accompany the FindLaw column I'll now set about writing.

The opinion is available here .

Posted by Mike Dorf

Lagging Indicators

noreply@blogger.com (Michael C. Dorf) — Sun, 28 Jun 2009 13:55:00 +0000

Employment, we know, is a lagging indicator, so that even if economic recovery begins in earnest later this year, labor force participation (itself a more meaningful number than unemployment) will likely remain low for considerably longer. Support for gay rights by politicians, it turns out, is also a lagging indicator, as noted in this NY Times story on how politicians appear behind the culture with respect to acceptance of homosexuality. (Interestingly, for many years after progressives routinely used the terms gay and lesbian, the Times itself continued to insist on the clinical "homosexuals." Are newspapers also a lagging indicator? But I digress.)

Although this is not the point of the Times article, I would suggest that it holds a broader lesson about the value of courts. A conventional critique of judicial recognition for rights that are the subject of political contestation points to the greater popular legitimacy of elected bodies to resolve such matters. The standard response notes that, where the very issue is protection of minorities and non-conformists, majoritarian processes are inadequate. But if, as I suspect, the Times story is only an exemplar of a larger phenomenon, there is another response available.

The larger phenomenon is this: Politics will, in general, be a lagging indicator of popular opinion about civil rights. Why? Because civil rights struggles, while they are struggles, are invariably divisive, and politicians facing the possibility of tough elections prefer to straddle such issues. (The effective political gerrymandering of the House of Representatives into a great many safe seats for Republicans and Democrats alike cuts in the other direction, but the reps in the swing districts still hold the balance of power, and they are the most likely to want to straddle.) This in turn will mean that legislators will avoid new rights legislation until popular support is very clear, at which point the legislation will be less valuable than it would have been some years earlier, when discrimination would have been more widespread.

Judges are not entirely immune from this phenomenon. They too are not going to protect rights that are on the fringe of public opinion. However, the culture of reasoned argument and, for federal and some state judges, the insulation from politics afforded by lifetime or long-term appointments, enable them to worry less about offending potential supporters. Over the long run, courts do not act in a strongly counter-majoritarian way. But recalling what Keynes said about the long run, if courts recognize rights that the political actors take another decade or so to accept (e.g., Brown v. Board in 1954; Civil Rights Act authorizing Justice Dept to enforce Brown in 1964), that's significant. Thus, in practice, courts, by sometimes being out ahead of politics, may end up being a better indicator of which rights the society is prepared to recognized than elected legislatures.

Posted by Mike Dorf

Waxman-Markey: The Incredibly, Mind-Numbingly Complex Calculations of “Is it Worth the Trouble?” At Such Scales and Under Such Uncertainty

noreply@blogger.com (Jamison Colburn) — Fri, 26 Jun 2009 19:50:00 +0000

Breaking News: The notorious Waxman-Markey bill, H.R. 2998, just passed the House. A good rundown of this monster is here at thinkcarbon.

Now it is on to the Senate to see if this too-weak-to-succeed beast of a federal law will make to it the President’s pen. Here are some thoughts as we all consider the multitude of relevant factors and sources of uncertainty bearing on “environmental legislation” of this kind: federal legislation that aims to attack truly massive problems whose time horizons stretch literally decades and centuries into the future.

First, it is certainly worth noting that anything of this kind made its way through the House’s gauntlet of eight (8!) committees with primary jurisdiction. My hat is off to the management team that pulled this through the House of Representatives at all.

Second, the true test lies ahead, unfortunately. The Senate has yet to pass its own version. A Senate version will then move into a conference of some kind for reconciliation with H.R. 2998 (assuming the House leadership holds the line and the floor vote goes as this discharge vote went today).

What climate disruption has really meant as a public problem is diversity: diversity of effects, diversity of perceptions, diversity of economic positioning should major changes in our fossil fuel economy be made, etc. That the House could assemble anything which makes a meaningful claim to systematic treatment of global climate disruption, and could do so largely in response to growing international pressures, is not to be taken lightly. Senators from states that stand to lose from a behemoth like HR 2998 are trying to block it however they can. Think: traditional fossil fuel states; states with lots of voters on fixed incomes who cannot easily adjust their “consumption curves;” states that elect those of the tinfoil hats.

So what is the threshold at which it is time to call a weak first step not worth taking? The options seem stark: (1) wait for another Katrina or other such obliquely-related mega-tragedy to wake the masses back up into thinking about climate disruption with a little urgency or (2) go ahead with this version in the hopes that incremental ratcheting will get it where it needs to be in a few years without having to go back to the drawing board where disruption risks are highest.

This choice seems to summarize a core dilemma of conservation in the 21st century. Action at the scales needed to attack massive problems has daunting coordination costs and risks born of irresolvable normative disagreement, dispersed and/or missing information, and the intangibles that stem from deceit or the possibilities of deceit as more and more trust is needed to make something work.

This week’s deal for “offsets” to farming is a good example. The bill now includes whopper subsidies to Ag for any kind of C-footprint reductions at all, even if they come from superior practices like no-till farming, even if they come from adopting such practices years ago. And that's before we strike up another eye-glazing tour of the arithmetic and modeling exploring ethanol as a greenhouse gas reduction technology. Tom Vilsack has taken casuistry to a high art form on that for months now.

Indeed, the bill takes the calculation and administration of Ag offsets away from environmental enforcers and gives it to Ag’s patron bureaucracy, USDA, presumably because only USDA has the expertise needed to keep Agribusiness, Inc., adequately subsidized. Ironically enough, of course, Ag stands to lose the most from ineffective action on climate disruption (perhaps second only to the skiing industry), as this perceptive column by Steven Perlstein pointed out this morning.

But this is just one rehearsal of the whole public dialogue on climate disruption and what has now become known simply as “Waxman-Markey.” Truth is I can hardly tell, myself, whether this step is worth taking. I guess I’m waiting to see if the legislative process can actually yield a better answer to that question from its “many minds” than I can come up with on my own.

All people seem to talk about on this dilemma any more is what it will “cost” — like we have any idea what these costs are relative to a “business-as-usual” future. BAU futures, I hate to belabor, are going to be really and truly costly. As HR 2454 was wending its way through the House committees, the “per household” price tag it was given made a bit of a splash. The CBO estimated that the bill would cost an average household $175 a year; the EPA put it at under $110 a year. What does this really mean, though?

How manipulable people are when such cost figures appear. Might that have been different had we started educating people about cost-benefit analysis sooner? The real protection against self-dealing, myopic politicians is, after all, a populace that doesn’t stand for myopia or self-dealing—and knows it when they see it. "Are you better off than you were four years ago?" was a pretty effective slogan some years ago. The way the future is shaping up, maybe that slogan ought to be refurbished and used to jolt people to think about a future without snowpack in the West (i.e., drinking water for 70 million people), plankton in the ocean (i.e., a food chain that yields protein for a third of the planet), or 70% of our current species on Earth.

Posted by Jamie Colburn

Can California Create Its Own Money?

noreply@blogger.com (Neil H. Buchanan) — Fri, 26 Jun 2009 07:01:00 +0000

An article in yesterday's New York Times, "California May Be Forced to Issue I.O.U.'s," reports that the government of the state of California might -- for only the second time since the Great Depression -- give its creditors "registered warrants" in lieu of actual payment in cash, check, or electronic transfer. What is a registered warrant, you ask? It's either money or not money, a contract or not a contract, and meaningful or meaningless. Allow me to be a bit more specific.

The basic idea is that these warrants are a way for California to "pay" their bills when due by promising to pay their bills later. Why issue an I.O.U. to someone who is already presumably holding a valid legal claim against you? Good question, one that goes to the very core of the "money from thin air" question that I have discussed in a series of posts this Spring and Summer (here, here, here, and here). But first, a bit more about the registered warrants and the reasons that the state might issue them.

According to the state Controller's Office: "A registered warrant is a 'promise to pay,' with interest, that is issued by the State when there is not enough cash to meet all of the State’s payment obligations. If there is sufficient cash available, registered warrants, or IOUs, will be paid by the State Treasurer on October 1, 2009." (There are actually two types of warrants, but I'll use the word warrant here to refer only to these registered warrants.) California's plan is thus to issue the warrants as a way of saying, "Your money's coming, really!" Thus, rather than simply failing to pay up on the date that payments are due, at least the state will acknowledge its obligations and tell its creditors that it won't be too much longer before the money arrives.

Of course, everyone knows that the money might not arrive on October 1, for exactly the reason that the money isn't there right now: political gridlock. The state government operates under rules that make tax increases nearly impossible to pass, and the state's budget deficit is so large that the spending cuts necessary to close the gap are too large to be politically palatable. (That states operate under budget rules that perversely require tax increases or budget cuts in response to a recession -- a sure recipe for a downward spiral -- is the subject for a different discussion.) The recipients of the warrants can thus reasonably worry that the warrants due in October will be paid with another round of warrants.

Ultimately, of course, this cannot continue. Even if the state were to succeed in permanently stiffing the holders of billions of dollars of the state's current obligations, no one will be willing to do business with the state in the future, once it becomes clear that the Golden State has become a deadbeat. The process of getting out of this crisis will surely be messy, but it is simply not possible for the fifth-largest economy in the world to operate for long without a government that pays its bills.

As important and interesting as the underlying fiscal crisis and political stalemate in California are, however, I want to focus instead on the warrants themselves as an exercise in thinking about the nature of money. The state Controller goes on to say: "Registered warrants, or IOUs, are legal negotiable instruments that are paid with interest." Sounds good so far. If they are legally negotiable, how can a person use them? The Controller's new frequently asked questions page includes the following intriguing information:

6. Will my financial institution honor a registered warrant?

Recipients of registered warrants should contact their financial institution to determine whether they will honor the registered warrant before the redemption date.

7. What happens if my financial institution will not accept the registered warrant?

You may decide to open an account at another financial institution that will accept registered warrants, or you will have to hold the warrant until it matures on October 1, 2009.

17. Will the State pay for any overdraft or late payment that occurs because I was issued a registered warrant and unable to redeem it for a period of time?

No.

In other words, if there are banks that are willing to accept warrants as deposits, you can turn the warrants into cash. If not, too bad for you.

If you can find such a bank, however, you might not bother to deposit your warrant at all. After all, if you are holding something that can be turned into cash, you might not bother depositing it in a bank (since the warrant is already paying interest) or turning it into cash (if you have no current need for cash -- and you think the bank's offer to honor warrants will continue). You might thus hold the warrant, and if you later decide to buy something that is worth the amount of the warrant, you might simply exchange the warrant for the thing you want. The other party will accept the warrant as payment if she believes that the warrant will in turn be accepted by someone else!

California might, therefore, be creating money from thin air. In fact, you or I could conceivably create money out of thin air in the same way. Anyone who can create something (even something without intrinsic value) that other people will be willing to use in transactions has in a meaningful way created money. Similarly, if people do not accept California's warrants as cash equivalents, that means that California's attempt to create money has failed. It will have to get "real money" from somewhere else.

Which brings us to the ultimate question: What is real about real money? We accept greenbacks because we know other people will accept them. If others stopped doing so, dollar bills would not be money anymore. Similarly, many people think of gold as real money, but the only difference lies in whether more people will accept gold in payment than dollars. The dollar-denominated value of gold fluctuates in an open market, suggesting that gold is also an uncertain store of value.

The California warrants thus help to clarify the essential point about money. Anything can be money if people accept it as such. The key for a monetary authority is to make sure that people never stop treating a country's money as money. Even with the remarkable changes in the U.S. and global economies over the past year or so, the possibility of people no longer viewing U.S. money as money is simply not credible. Any monetary system can collapse as a result of gross mismanagement, but we are fortunate to have a system that continues to be run more than well enough to prevent this from being a serious threat.

[Aside: My colleague Sarah Lawsky, who brought the Times article to my attention and asked me to clarify the "Is this money?" question, raised a further point. Does California's issuance of warrants violate Art. 1 Sec. 10 of the U.S. Constitution: "No State shall . . . coin Money"? I suspect that the answer is pretty clearly no, but given that the name on this blog belongs to a constitutional law scholar, I'll leave it to him to answer that question either on the comments board or in a separate post.]

-- Posted by Neil H. Buchanan

Privacy in the Age of Technology

noreply@blogger.com (Sherry F. Colb) — Thu, 25 Jun 2009 11:00:00 +0000

My FindLaw column for this week (available here) discusses a recent decision from the New York Court of Appeals (New York's highest court), holding that police must have a warrant, supported by probable cause, before attaching a GPS device to a suspect's car and thereby remotely monitoring the suspect's travels. The state court's ruling rests entirely on New York State constitutional law -- its analogue to the Fourth Amendment right against unreasonable searches and seizures. In my column, I discuss the implications of avoiding the federal constitutional question while simultaneously distinguishing the facts of People v. Weaver (involving a GPS device) from the facts of the most factually similar federal precedent, United States v. Knotts (involving a primitive "beeper" tracking device).

In this post, I want to focus on a different question. If -- as the dissenters in Weaver argue -- the GPS device is really no different from police watching us from the street, does this similarity legitimate unregulated use of GPS devices or does it instead raise questions about unregulated public visual surveillance?

The first question the reader might have is this: Why does it even matter whether the police use of a GPS to track us is like police watching us on the public streets? It matters because when police do something to us that any private person can and will also do to us routinely, then the police have not invaded our privacy in a meaningful way and therefore do not need a warrant or probable cause to act. Police need not turn away from what everyone else can see.

To give an example, if I yell an incriminating secret to my friend on a subway train, I have no "reasonable expectation of privacy" in the yelled statement. Anyone on the train can easily hear what I said (and indeed, many may be unable to avoid hearing what I said, even if they would prefer to read the newspaper and tune me out). Therefore, a police officer may also listen to what I am saying without having first to develop reasonable suspicion of me or otherwise lay the groundwork for performing a search. To put it differently, if I "knowingly expose" personal information by yelling it out in public, I forfeit any interest that I had in concealing that information from the police, just as I plainly forfeit my interest in keeping it secret from the private people who happen to be riding the train.

The U.S. Supreme Court has said that a police officer may follow people along the public streets (by foot or in a vehicle) without compromising anyone's reasonable expectation of privacy. A pursuit is thus not a search or seizure subject to the Fourth Amendment's requirements. This is because, according to the Court, your comings and goings in public are in no sense "private": anyone who happens to be on the street can see you going from place 1 (e.g., a psychiatrist's office) to place 2 (e.g., a strip club) and then to place 3 (e.g., an abortion clinic). You do not have privacy in public because you voluntarily and knowingly convey the information about where you are simply by appearing in public.

If this is true, and if we assume that a GPS device benignly increases the efficiency of the public vantage point that police would otherwise have, then it follows that attaching a GPS device to your car does not compromise your Fourth Amendment right against unreasonable search and seizure and need not be justified with suspicion or a warrant.

I would, however, challenge the notion that it is acceptable -- for police or for private citizens -- to follow you around and "observe" where you go in your daily travels. It is one thing if an officer or a neighbor happens to see you on the street (and thereby learn that you visit an "adult" book store, for example). It is quite another for an officer (or neighbor) to walk or drive behind you at a distance over long periods of time and make these same observations. In such a case, you are the target of surveillance. Such targeted following will likely feel quite different, if you were to learn of it, from the occasional "fancy meeting you here!" situation. It feels less like an accidental exposure, in other words, than like a deliberate invasion of privacy.

When a private individual follows you around, for instance, we might call such an activity "stalking," and you might be able to get a restraining order against the private individual to prevent him from continuing his personal tracking. It is therefore unclear why, when a police officer does it, he or she should be exempt from the norms that render such behavior legally questionable among private actors. And this is true even without the increased efficiency and power of a global positioning device tracking your every move.

The U.S. Supreme Court has long made a dubious assumption about exposure -- that if you take a risk that exposure might occur, you have thereby "knowingly" exposed yourself to the public. In California v. Greenwood, for example, the Supreme Court held that police may rummage through the garbage you leave outside for collection, without a warrant, without probable cause, and without any sort of reasonable suspicion of finding incriminating materials there. The reason the Court gave for characterizing garbage rummaging as something other than a "search" was that young children or animals or "snoops" might tear open your garbage after you leave it out, and you therefore assume the risk that the contents of an otherwise opaque container will become visually available for all to see (even when no human or animal actually tears it open).

One flaw here is clear when we note that putting out the garbage in no way "invites" such intrusions, some of which are either unusual or downright illegal (as I discuss in greater detail in an article in the Stanford Law Review (v. 55, p. 119), entitled What is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy).

It is not normal, everyday conduct to follow people around and observe where they go throughout the day. When you leave the house, you do -- of course -- risk that at any given time, you will be seen by someone you know (and find yourself embarrassed to have been "discovered" in a particular place). But this risk does not entitle anyone to follow you (rather than coincidentally to run into you sometimes), and it accordingly should not entitle the police to do so -- with or without the aid of a GPS -- if the police can demonstrate no reason for invading your privacy. The fact that going out in public risks exposure is morally no different from the fact that leaving the door of your house open risks theft -- in neither case have you legitimated the unlawful acts that might follow.

Posted by Sherry F. Colb

Dynamic Originalism?

noreply@blogger.com (Michael C. Dorf) — Wed, 24 Jun 2009 05:48:00 +0000

On the surface, Monday's decision in Northwest Austin Municip. Util. Dist. No. 1 v. Holder did not decide much: Holding that § 5 of the Voting Rights Act permits a utility district that does not register its own voters to "bail out" of section § 5 (if it qualifies for bailout), the Court declined to reach the question whether § 5 remains constitutional these many years since its enactment. Yet, as some commentators have already noted (e.g., Tom Goldstein here), it's hard to read the majority opinion of CJ Roberts as anything other than a warning to Congress that, if it doesn't change § 5, the Court will strike it down.

Here I want to ask how one might go about reconciling the very strong suggestion of the majority that a statute could be constitutionally valid in 1966 (as the Supreme Court said of the VRA § 5 in South Carolina v. Katzenbach), but be unconstitutional in 2009, without any substantial change in the text of either the statute or the Constitution. To put the point precisely, must CJ Roberts rely on either dynamic statutory interpretation or living Constitutionalism to support the result at which his opinion strongly hints in Northwest Austin Municip Util. Dist.?

We can set aside dynamic statutory interpretation immediately here, because there is no contention that the meaning of § 5 itself had changed. On the contrary, the very problem to which the Court points is that § 5 has not changed, even though the ostensible justification for it has changed. So how can Justices who call themselves originalists sign onto an opinion that suggests that a statute can be valid in 1966 but invalid in 2009? (Justice Thomas, who is the most originalist of the current Justices, did not join the CJ's opinion in Northwest Austin Municip Util. Dist., but his separate opinion poses the issue even more starkly, because he would have held § 5 invalid, even as he made quite clear that he thought it was valid in 1966.)

To answer my question, an originalist needs an account of what sorts of changes are and are not relevant to constitutional interpretation. In a case like Northwest Austin Municip. Util. Dist., the originalist would likely say something like this: The core meaning of the 10th Amendment doesn't change; it disallows federal statutes that cut deeply into traditional state control over elections, absent a showing that the statute falls within some enumerated power; where the asserted source of power is enforcement of the Fifteenth Amendment, validity in turn will depend "on the proven existence of intentional discrimination so extensive that elimination of it through case-by-case enforcement would be impossible;" this was proven in 1966 but there is no comparable record today.

In short, an originalist will allow that changed facts can warrant changed applications of constitutional language. Here's another example. In County of Riverside v. McLaughlin, the Supreme Court found the Fourth Amendment satisfied by a procedure that allowed an arrestee to go before a magistrate for a probable cause hearing within 2 days (or longer if the relevant period included a weekend or a holiday) of arrest. Justice Scalia dissented on originalist grounds. He said that the Fourth Amendment incorporated the common law rule, and that the common law in turn required the arresting officer to bring the arrestee before a magistrate "as soon as he reasonably can." Justice Scalia thought that at the most, that meant within 24 hours. Although he did not say so, it is clear that the data he used to arrive at that number related to modern technology: A delay of 48 hours to transport a prisoner by horse-drawn carriage from a remote location to a courthouse might have been reasonable in 1800 but would not be reasonable in 1991 (when McLaughlin was decided) because of technological advances in transportation and communication.

In the originalist account of both Justice Thomas's separate opinion in Northwest Austin Municip. Util. Dist. and Justice Scalia's dissent in McLaughlin, one would say that constant interpretation allows for changed results where factual circumstances change. So far so good, but then we get to the hard question: What if popular values have changed? Why can't that warrant a changed constitutional reading? Suppose that just about everybody thought that there was no denial of equal protection to forbid same-sex marriage in 1868 but that today people understand this to be unequal. If the meaning of a "reasonable" seizure under the Fourth Amendment depends on the technology available at the time the seizure occurs, why doesn't the meaning of "equal protection," or "cruel," or, for that matter, "reasonable," depend on the values commonly held at the time the issue arises?

Indeed, the question is especially difficult because in a case like Northwest Austin Municip. Util. Dist., the "fact" that is relevant to the need for § 5 of the Voting Rights Act is itself totally dependent on the values people hold: Where people are sufficiently racist (surely a value) to try to discriminate with respect to voting, Justice Thomas and the Court would allow the pre-clearance mechanism; such racism was widespread in the covered jurisdictions in 1966; it's not proven today. But if the value of racism counts as a fact relevant to how the meaning of the 10th and 15th Amendment change over time, why can't the value of acceptance of homosexuality count as a fact relevant to how the meaning of the 14th Amendment changes over time?

I do not raise these questions because I think they are unanswerable. I have little doubt that a committed originalist could argue that Justices Scalia and Thomas really are being originalist in their respective opinions in McLaughlin and Northwest Austin Municip Util. Dist., but that a decision like Roper v. Simmons, which finds that the juvenile death penalty has become cruel and unusual as a result of "the evolving standards of decency that mark the progress of a maturing society," is incompatible with originalism. What I would note here is that the various steps of the argument--including the fact/value distinction and its specification to make Northwest Austin Municip Util. Dist. a changed-fact case rather than a changed-value case--are all contestable and in no way commanded by anything we can clearly attribute to the text of the Constitution.

Posted by Mike Dorf

Focusing on the Real Economic Problem

noreply@blogger.com (Neil H. Buchanan) — Tue, 23 Jun 2009 07:01:00 +0000

Last Thursday, in "Money Out of Thin Air" and in a related column on FindLaw, I tried to debunk some of the recent hand-wringing about how the Federal Reserve (the Fed) has supposedly put us on a path toward hyper-inflation. The complaint that we are now creating money out of thin air is ridiculous, simply because that is how money is always created. If, on the other hand, the concern is that the Fed is creating too much money, then the problem with that argument is that the chain of causes and effects that is supposed to connect the Fed's current actions with inflation simply does not hold up to empirical testing (either in terms of how much money the Fed is actually creating or how such money creation would lead inexorably to increasing rates of inflation).

In this past Sunday's NYT Business section, the economist (and former Fed vice chair) Alan Blinder offered his assessment of the situation, and his conclusions were essentially the same as mine. (He does not directly challenge the idea that money creation is inevitably inflationary, but this is clearly because he was conceding the obvious point that extremely fast money creation must be inflationary: "Under such conditions, Fed expansions of bank reserves lead to expansions of credit and the money supply and, if there is too much of that, to higher inflation." emphasis added) He also points out that the Fed actually adds and subtracts bank reserves (its current policy action) quite regularly, for example during and after Christmas each year.

My agreement with Blinder is hardly surprising, because I have always found him to be among the best of the mainstream centrist liberal economists. Moreover, in this case the only thing that would lead him (or anyone) to a different conclusion would be a deep commitment to denying reality, which Blinder has never been willing to do. Even though his comments were quite consistent with mine, however, he raises a couple of additional points that are worth emphasizing here to complete the picture.

The point that is probably most surprising to those who do not practice the dark art of macroeconomics is that the target rate of inflation is not zero. Is this merely because the Fed is being too weak-kneed? Absolutely not. As Blinder suggests, if the Fed tries to hit any particular inflation rate target, it's aim will inevitably be a bit off. If they miss on the low side of a zero target, we have falling prices, that is, deflation. And it turns out that even mild deflation is a very nasty thing, because once prices start to fall, people stop spending money to wait for it to rise in value even further. This sets up a downward spiral that is very difficult to reverse. Therefore, most monetary economists agree that a low-single-digit target inflation rate (such as 2%) is the best policy.

Can't the spiral happen in the upward direction as well? That is, once we have 2% inflation, is it not possible that people will spend before their dollars lose value, setting in motion a dangerous ascent to much higher rates of inflation? It turns out that this is not a serious risk in the United States, because the Fed does not miss on the high side by much (or, as Blinder puts it, the Fed "might miss and produce, say, inflation of 3 percent or 4 percent at the end of the crisis — but not 8 or 10 percent.") In addition, experience over the last thirty years or so has shown that the Fed can quite readily reduce inflation from rates like 5 and 6 percent to rates like 1 and 2 percent.

The long and short of it is that inflation in the 1-4% range is healthy, and rates above that can be tamed and reversed relatively quickly. There are many things to worry about right now, but inflation is simply and clearly not one of them. Remember, the unemployment rate is setting 25-year records around the country, and it is getting worse. We need the Fed and the Congress to do what is necessary to expand economic activity, which means that they must stop listening to those who would choke the economy before it has even begun to turn around.

-- Posted by Neil H. Buchanan

Quitting the Belizean Grove

noreply@blogger.com (Michael C. Dorf) — Mon, 22 Jun 2009 03:39:00 +0000

At the end of last week, Judge Sotomayor quit the Belizean Grove, an organization of professional women that served to provide networking and mentoring opportunities of the sort that old boys' networks have long provided for men. (Mission statement here.) The judge had initially defended her membership in BG on the ground that it wasn't for women exclusively; no man had ever applied. (News story here.) The organization's stated goals seem inconsistent with this characterization, but not entirely so. By way of comparison, most student identity groups at law schools (e.g., Black Law Students Association, Asian Pacific American Law Students Association, etc.) are open to members who are not part of the identity group, even though they draw few such people, given their missions. Still, the notion that BG just happened to be all-female was a tough sell, and so it wasn't surprising to see Judge Sotomayor move off of that argument and simply resign. In her letter announcing that she had resigned, the judge said she still believes that BG doesn't discriminate but that she didn't want it to become a distraction.

One can't blame the judge for trying here, but there is something illogical about the act of resignation. Presumably, the people who were concerned about Sotomayor's membership in BG were not especially worried that she would favor BG or its other members in cases that come before the Court. Rather, their concern was that membership in BG showed a kind of character flaw, specifically, that Judge Sotomayor thinks it's okay to exclude men from organizations that promote their members' careers. If these worriers are right, then the judge's resignation from BG shouldn't mollify them.

Suppose that in 2009 a Supreme Court nominee were a member of the Klan. (Yes, I know all about Hugo Black but I want to use a hypothetical example.) Suppose further that, following criticism, the nominee said "I still don't think the KKK is a racist organization but to prevent it from becoming a distraction, I hereby resign." Why would that appease critics? We would still be justified in thinking that the nominee is a racist and opposing him or her on that basis.

Now, to be clear, I don't at all think that BG is like the Klan or even problematic. Given how skewed in favor of men the business/social world is, an entity like BG is very different from the Jacyees or the Rotary at the time the Supreme Court held that these organizations could be made to open up to women. But the difference is broadly similar to the difference between affirmative action for disadvantaged groups and discrimination against disadvantaged groups. Judge Sotomayor and I see that distinction as obvious and important, but her critics do not. Thus, for them, membership in BG is troubling for what it confirms about her views, and post-nomination resignation doesn't suggest that her views have changed.

An honest discussion of BG would ultimately reduce to a discussion of Judge Sotomayor's views about affirmative action. But since her critics already plan to use the Ricci (New Haven firefighter) case on that point, the BG "issue" presents an opportunity to treat an ideological disagreement as an ethical lapse. If recent history is our guide, this won't work. Justice Alito was questioned extensively on whether he had been a member of Concerned Alumni of Princeton, an organization that opposed the admission of women and the practice of affirmative action for minorities. But the charge didn't stick, partly because there was no record of Alito ever having been a member and partly because it was clear that the Senators who had doubts about Alito were simply using the CAP issue as a way to personalize ideological disagreement.

Finally, let me be clear that I think ideological disagreement IS a legitimate basis for a Senator opposing a Supreme Court nominee. But the way the game is played, it's easier to vote against a nominee if the disagreement can be recast as an ethical or character issue.

Posted by Mike Dorf

Judge Sotomayor Trying to Keep a Low Profile

noreply@blogger.com (Michael C. Dorf) — Fri, 19 Jun 2009 05:04:00 +0000

On Wednesday, the U.S. Court of Appeals for the 2d Circuit issued an order denying rehearing en banc in United States v. Fell. Fell was convicted and sentenced to death for murder. He actually killed three people (including his own mother) but two of the murders occurred in Vermont, and were thus purely state law matters. The third murder involved the transportation of his victim across state lines (from Vermont to New York), which made Fell eligible for federal prosecution and the federal death penalty. A 3-judge panel affirmed his conviction last year. Absent intervention by the Supreme Court, Wednesday's ruling likely clears the way for Fell's execution--the first for a federal death penalty in the 2d Circuit in decades.

Judge Calabresi wrote a dissent from the denial of en banc reconsideration, in which he argued (among other things) that federalism issues arising out of the fact that Vermont---where the trial occurred---has no state death penalty, warranted en banc review. A footnote indicates that Judge Straub agreed with Judge Calabresi, but couldn't formally join his dissent because he took senior status after the argument. In response, Judge Raggi wrote a concurrence in the denial of review. Her concurrence was joined by Chief Judge Jacobs and Judges Cabranes, Parker, Wesley, and Livingston. A footnote indicates that Judge Walker, who was a member of the 3-judge panel but is senior, agrees. Judges Pooler and Sack each wrote separate short dissents. Judge Hall was recused.

Now let's do some counting. All active (i.e., non-senior) judges of the 2d Circuit participate in the decision whether to take a case en banc. Along with their votes in Fell, they are:

Jacobs: Concur
Calabresi: Dissent
Cabranes: Concur
Pooler: Dissent
Sack: Dissent
Sotomayor: ?
Katzmann: ?
Parker:Concur
Raggi: Concur
Wesley: Concur
Hall: Recused
Livingston: Concur

Note that only two (non-recused) judges did not go on record and one of them was Judge Sotomayor. What are we to make of that? We can't be sure how either Judge Sack or Sotomayor voted because the vote without them is 6-3. Even if they both voted for en banc review, the vote would have come out against it. However Judge Sotomayor voted, she may not have agreed with any of the separate opinions, and as there is no opinion for the court as a whole in a case denying en banc review, she did not feel the need to write her own separate opinion. I think this is probably a good explanation for Judge Katzmann's silence, but I want to raise another possibility for Judge Sotomayor.

For now, we can expect any heat directed at Judge Sotmayor's Supreme Court nomination to come from the right. Thus, if she had voted to deny review, she could have burnished her tough-on-crime credentials by saying so publicly, and the easiest way to do that would have been simply to join Judge Raggi's concurrence. But she didn't, which leads me to suspect that she voted to hear the case en banc. However, not wanting to give the right more ammunition, she then didn't join any of the written dissents.

This is, of course, all speculation, but the reticence displayed here by Judge Sotomayor shows, I think, the difficult position in which sitting judges are placed when nominated to the Supreme Court. During the period between nomination and confirmation, their decisions will be very closely scrutinized, and that fact could undermine the nominee's independence during that time.

The problem is substantially more widespread for federal district court judges. Although life tenure and salary protection are supposed to insulate such judges from political pressure, a fair number of federal appeals court judges are drawn from the district courts. E.g., Judge Sotomayor was a district court judge before being elevated to the 2d Circuit. The hope of a "promotion" from district to appeals court judge can lead a district judge to decide cases with an eye on how her decisions will play politically at her next confirmation hearing.

With that perspective in mind, it may show good judicial character that Judge Sotomayor did not record a vote in Fell. If she were simply interested in pandering to get confirmed, she could have easily voted to deny review and to join the Raggi concurrence. That she didn't suggests to me that she continues to vote her conscience, even at the potential cost of giving her opponents some basis for saying that she doesn't support the death penalty sufficiently.

Posted by Mike Dorf

Money Out of Thin Air

noreply@blogger.com (Neil H. Buchanan) — Thu, 18 Jun 2009 07:01:00 +0000

In a guest column on FindLaw appearing later today, I take on the questions of whether the Fed is printing money "out of thin air" and, if so, whether that is bad. (Answers: (1) Yes, because that is how money is always created. (2) No.) In that column, I pick up on an argument that I mentioned in passing in a Dorf on Law post back in April: Doesn't the Fed cause inflation when it increases the money supply? In my FindLaw column, I set aside the intervening steps of the argument and simply point out that reality has been very unkind to the argument that inflation and money creation are directly related. In this post, I'll discuss those intervening steps to show that the Fed's current policy is both sensible and reversible.

Most people who took an undergraduate economics course will probably remember the equation MV=PQ. Like most of what we learn in college, however, the meaning of that equation has probably been lost in the mists of time. Known as the Quantity Equation, this is a mathematical identity that says that the number of dollars (M, or Money Supply) multiplied by the average number of times that each dollar is spent (V, or Velocity) equals the average price of a good produced in a given year (P, or price level) times the quantity of goods produced in a year (Q, real gross domestic product). There are a couple of variations on this equation, and some textbooks use a different letter for Q; but this is the most common form of the quantity equation.

Two steps of college-level math turn the equation into a linear approximation: money growth + velocity growth = inflation (price growth) + GDP growth. Moving from the Quantity Equation to a version of the Quantity Theory requires assuming that velocity growth and GDP growth are either fixed or predictably changing, which then means that money growth and inflation are directly related. Given the strong intuition that rampant and uncontrolled money growth must certainly be inflationary (see Germany in the 20's, many South American countries in the 70's and 80's, etc.), it is easy to convince students that the theory can be used as an actual predictive tool for U.S. monetary policy. It cannot.

As it turns out, in this country velocity growth is anything but fixed or predictable, and the predictions that money growth is inevitably inflationary (or that increases in money growth must increase inflation) simply do not hold up to empirical testing. Sometimes the relationship holds up, but other times it doesn't. In the current situation, we have the Fed creating large amounts of money (but see below), and real GDP has been falling (the definition of recession), which would result in inflation if velocity weren't falling. But velocity growth is falling. Hence inflation has stayed in check. If the economy starts to grow, real GDP growth will soak up some of the upward pressure on prices, and the Fed can pull back on money growth.

Actually, there is an additional empirical difficulty with the "more money causes inflation" story. As Paul Krugman pointed out in his column on Monday of this week, there is a difference between the type of money that the Fed can control and the type of money that shows up in the equation above. The Fed controls the "monetary base," which is the sum of currency and the (mostly electronic) money that banks have on reserve. We usually imagine that there is a nice linear relationship between the monetary base and the quantity of money that is ultimately available for spending; but again, that relationship is much more tenuous than many people thought. (Krugman points out that, in the Great Depression, the monetary base doubled while prices fell 19%.) If the banks don't lend out the money that they have in reserve (which they currently are not), the monetary base does not ever become the kind of money that shows up in the MV=PQ equation, and any inflationary pressure from increasing the money supply cannot even get started because there really is not a big increase in the money supply.

Until President Obama took office, the quantity theory had faded in importance even among those who called themselves monetarists. Although Alan Greenspan completely missed the importance of financial regulation, he clearly understood that the mechanical inflation story is no guide for policy. Ben Bernanke, who we might recall was appointed Fed chair by George W. Bush, also understands this.

Of course, it is possible that inflation could return. One way for that to happen is for the variables that I described above all to turn in the wrong direction at once. Given that much of the "money" the Fed has created sits in bank reserves, and given that the Fed has nearly direct control over those reserves, it is well situated to pull the plug on any incipient inflation in a very timely way simply by shrinking the monetary base as much as necessary. I am not predicting that the Fed will respond perfectly, but this is not a situation where you have to wait months or years for the effect to be felt.

In short, the intuitive story driving the fears about the Fed creating "money out of thin air" and thus ensuring a future of ruinous hyperinflation breaks down completely in the face of both evidence and theory. I am usually not a "don't worry, be happy" kind of guy, but this is really a case where the Fed is doing the right thing and can reverse course as the situation evolves.

-- Posted by Neil H. Buchanan

The Veto, the Oath, and the Take Care Clause

noreply@blogger.com (Michael C. Dorf) — Wed, 17 Jun 2009 04:01:00 +0000

In my latest FindLaw column, I pile on the Obama Justice Department for its wretched brief in Smelt v. United States, a challenge to the Defense of Marriage Act (DOMA). In the column I question the Administration's claim that in taking the oath of office, the President commits himself to mount a vigorous defense of all duly enacted laws. I argue further that even if there is a duty to defend DOMA, there is freedom to decide how to defend it.

Here I want to further explore the scope of the President's duty to defend acts of Congress against constitutional challenge. Suppose that Congress passes a bill that the President believes is unconstitutional. The President can--and we might well say he must--veto the bill. But suppose that Congress overrides the veto, or that the bill was signed by one of the President's predecessors, or even that the President himself signed a piece of omnibus legislation believing that one of its provisions was constitutionally invalid. (President Clinton did that with a military spending measure that contained a provision requiring the discharge of HIV-positive service members; he claimed that the pay raise also contained in the overall bill was essential to national security.) What are the President's options for non-defense and/or non-enforcement of the law once it is enacted?

Before answering that question, we might distinguish two circumstances:
(1) The President (on the advice of OLC or the White House Counsel) believes that the courts would likely strike down the law in question;
(2) The President either thinks that the courts will uphold the law or he is not confident about what the courts will do, but his own best constitutional judgment is that the law in question is unconstitutional.

In (1), a decision not to enforce or not to defend the law can be understood as purely pragmatic. The President decides that it would be a waste of executive and judicial resources to attempt to enforce a law that will ultimately be held unconstitutional. In (2), the non-enforcement/non-defense decision is based on a more robust view about constitutional interpretation outside the courts, and (2) therefore presents a more interesting case.

Over the last decade and a half, some (generally liberal) scholars have argued for greater latitude for the President (and Congress) to interpret the Constitution in ways that differ from what the courts would likely say. This view--typically called "departmentalism" and traceable at least to Thomas Jefferson--stresses the co-equal nature of the branches of the federal government. However, events during the Bush Administration may scramble ideological allegiances on the question of departmentalism, because Bush's most aggressive assertions of Presidential power--in signing statements and the torture memos--relied on a tendentious understanding of the "unitary Executive" theory. A Presidential power of non-enforcement/non-defense of laws that Congress thought constitutional and that the courts would likely uphold, gives the President enormous power.

To be sure, defenders of an independent power of constitutional interpretation in the executive can say that an unconstitutional law is not among "the Laws" that the President is obligated to execute faithfully; and indeed, executing such a law would itself contravene the President's oath to "preserve, protect and defend the Constitution."

Is that right? The term "the Laws" is used repeatedly in the Constitution to refer to statutes (and possibly common law), sometimes in contradistinction to the Constitution, as in Article III, Section 2 (authorizing federal question jurisdiction for cases "arising under this Constitution, the Laws of the United States, and Treaties") and the Supremacy Clause of Article VI ("This Constitution, and the Laws of the United States . . . and all Treaties . . . shall be the supreme Law of the Land"). It is thus most natural to read the President as obliged to faithfully execute statutes adopted by Congress. On this reading, the President would not violate his own oath to preserve, protect and defend the Constitution by executing (i.e., enforcing or defending) a statute that he thinks is unconstitutional because the Constitution does not regard him as having any independent duty of constitutional interpretation. If a President thinks a law is unconstitutional, in this view, he should either not sign it when it's a bill or work for its repeal, but he has no power simply not to enforce or defend it.

To be clear, the view I've just described is not the prevailing view, and even if we were to move in this direction, we still might want to say that the President is permitted or obliged not to enforce or defend laws that he has good reason to think the courts would strike down. We also might want to distinguish enforcement from defense. Defending a law against a constitutional challenge in court is a way for the President to acknowledge the judiciary's ultimate role in constitutional interpretation; by contrast, non-defense of a law, like non-enforcement of the law, means that the President has the last word (unless someone else is permitted to intervene to defend the law, as sometimes happens). And of course, we would want to distinguish the claimed power of the President not to enforce or defend laws he deems invalid from the more controversial claimed power of the President to enforce laws that the courts have declared unconstitutional (a position championed in some circumstances by AG Meese during the Reagan Administration).

My main point here is simply to note that the constitutional text could plausibly be read to give the President no power to make independent judgments about constitutionality or could be read to give him great power in such matters. How much power of independent authority to engage in constitutional interpretation one thinks the president should have will depend partly on how much relative faith one has in the constitutional interpretations likely to emerge from the President, Congress, and the courts.

Finally, I should add that there is no reason to think that President Obama actually believes DOMA is unconstitutional. He is simply on record as favoring its repeal on policy grounds.

Posted by Mike Dorf

Flies, Honey, and Academic Discourse

noreply@blogger.com (Neil H. Buchanan) — Tue, 16 Jun 2009 11:08:00 +0000

Having recently attended the annual conference of the Law & Society Association, I have been thinking about the different ways that scholars are treated when presenting work to their academic colleagues. Many academic fields outside of law have developed cultures in which scholarly presentations are virtually acts of sado-masochism, with the audience gleefully savaging the authors and disparaging their work as unworthy or even embarrassing. One example of this approach was when a visiting scholar asked a host, in preparation for his presentation to the host's colleagues, whether the local custom was to sit or stand while speaking. The host replied: "If I were delivering this paper, I'd hide under the desk."

This culture of destructive criticism was very much the norm in most economics venues when I was still attending conferences in that field. I have been told that such an approach is common in other social science fields as well, although I have not verified that directly. Legal academia in the U.S. is notably different. With some exceptions at a few schools and in a few fields of specialization, the norm when a U.S. legal scholar presents a paper at a conference or at a faculty workshop is for everyone (audience and author alike) to go out of their way to heap praise on each other. "I really liked this paper, and I am sure that it will advance the field." "Your question is a great one. Let me see if I can try to do it justice." The norms of politeness often become almost comically pro forma, with surprisingly large amounts of time being spent offering praise that simply cannot be taken seriously (at least in degree).

Having seen both extremes, it is tempting to take a page from "Pygmalion" and say that the two are equivalent. If one group of people treats everyone like a princess or prince, then no one is special; and if another group of people treats everyone like dirt, then no one is uniquely insulted. If one is in an academic field or venue in which all scholars will be treated poorly, then one is on notice and should make the best of it. In fact, the insulting atmosphere is arguably more efficient, because no one wastes time on empty compliments.

Beyond the most basic (and, to my mind, convincing) reply that it matters how we treat our fellow human beings, the equivalence argument is false for another reason. When an author is on the defensive, she is much less likely to view constructive criticism as constructive. Once, for example, the economist Robert Frank was presenting a talk based on his then-new book The Winner-Take-All Society to an audience of economists. As it happened, the economists in that room liked Frank's arguments a great deal, and they wanted to talk about how to extend the arguments in productive ways. Frank, however, was accustomed to treating every question as hostile, and he simply would not let down his defenses enough to engage with the questions. He, quite sensibly, assumed that his audience was trying to attack his argument. This was a shame, because the questions that he saw himself as fending off were not traps. The entire event was a missed opportunity.

When I first moved into legal academia, I attended a conference where an author was making an argument about economic theory. During the Q&A, I began a comment by saying that she had made an "error" in describing the theory but that her larger point was interesting and was not compromised by the error. This led to an unfortunate exchange in which the author defensively asserted that there was no error and simply would not engage with the substance of the comments, even after I tried to take back the offending word.

The latter incident is an example of what happens when the norms of one field are imported into another. The remainder of the comments during that presentation, however, were offered in the positive tones that I now know to be common among legal academics. The result was that everyone else's comments -- including those that made quite substantive and ultimately critical points -- were productive in ways that mine were not.

The larger point is that a hostile atmosphere is not merely a matter of a different, rougher style. It changes the substance of the exchange, because less is accomplished when people are defending turf than when people are extending their thinking. Legal academics will surely continue to tease themselves about the extreme nature of their comity, but their approach is not merely more humane. It better serves the goals of academic discourse.

-- Posted by Neil H. Buchanan

How Do You Say "Bush v. Gore" in Farsi?

noreply@blogger.com (Michael C. Dorf) — Sun, 14 Jun 2009 13:40:00 +0000

The farce/tragedy unfolding in Iran raises a broader question: Why do non-democratic regimes bother with sham elections? In Iran, this is arguably a double sham: First, Ahmadinejad may well have stolen this election, i.e., the vote totals showing him winning in a landslide may be wholly fictitious. Second, no matter who won, real power in Iran still resides with the religious establishment, which decided who could run for president and still makes the major decisions.

Iran is nonetheless an interesting case in part because SOMETHING was at stake in elections that could have been fairly conducted and tabulated. But what about obvious cases, such as elections in the old Soviet Union, in which only one candidate appeared on the ballot, and in which the number of people reported to have voted was obviously just made up?

North Korea recently held parliamentary elections in which--surprise surprise--Kim Jong Il won the support of 100% of the voters based on 100% turnout in his district. Not having ever been to North Korea, I can't speak to how many people actually living there believe these numbers, although friends who have been to North Korea have told me that the regime's control over information is so complete that it is quite possible that its brainwashing is effective on a substantial proportion of the population. Given the penalties for free expression of views that question the government, it's impossible to know how effectively claims of democratic legitimacy play within North Korea. But certainly the claims are utterly useless if intended as external propaganda.

In the end, I'm tempted to read insincere and transparently false claims of democratic legitimacy as positive signs. If hypocrisy is the homage that vice pays to virtue, then the felt need of authoritarians and totalitarians over the last century or so to make false claims of democratic legitimacy at least reveals a modern supposition that popular support is necessary to legitimate state power. In earlier ages, autocrats either acted on the ground that might makes right or claimed the mandate of Heaven. Today, even in a theocracy such as Iran, Divine right is seen as inadequate, leading the country's rulers to cloak themselves in the mantle of popular sovereignty as well.

Whether pretensions to democracy ultimately lead to real democracy is an open question--and one directly related to a parallel phenomenon over the last 60 years or so: Some of the world's most abusive regimes have eagerly signed onto multilateral treaties that recognize human rights that these regimes then routinely violate. If autocrats feel free to engage in human rights rhetoric while violating human rights, there is every reason to think they also feel free to engage in democratic rhetoric without in any way democratizing.

Nonetheless, I remain cautiously optimistic about the long term. I hold no illusions that Kim Jong Il or even Kim Jong-un will willingly democratize. Rather, the hope is that the insincere use of democratic and human-rights-respecting rhetoric by autocrats raises expectations in the people, who eventually demand the real thing from their leaders. That's what we're seeing in the streets of Tehran today, and even if this pro-reform movement is squashed, eventually one will succeed. Or so, at least, one can hope.

Posted by Mike Dorf

Literal Due Process

noreply@blogger.com (Michael C. Dorf) — Fri, 12 Jun 2009 16:45:00 +0000

In my post on Tuesday, I pointed to reasons why the parade of horribles set forth in the dissent of C.J. Roberts in the Caperton case is unlikely to come to pass. But at least the Chief Justice was engaged with the likely impact of the decision. He thought that the harm from a possible flood of new meritless Caperton claims seeking recusal would outweigh the benefits of a few additional recusals. Justice Scalia wrote an additional brief dissent in which he agreed with that prediction but seemed more concerned with the legitimacy of the majority's action. Here's the core of his analysis on the legitimacy point:

Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable.

The contrast between "Divinely inspired text" and the Due Process Clause strongly harkens back to the dissents of Justice Hugo Black and others from the cases--especially Griswold v. Connecticut--decrying the "natural law due process philosophy" that, in Black's view, underwrote the Court's efforts to give substantive content to the Due Process Clause.

Yet it's worth noting the very different context. Justice Black was a strong critic of substantive due process (except for incorporation of the Bill of Rights), and Justice Scalia and others have often relied on the same sort of skepticism as Black expressed as the grounds for their dissents from cases finding substantive rights like abortion or same-sex intimacy protected by the Due Process Clause. However, Caperton was not a substantive due process case. It was a procedural due process case--or what a non-lawyer might think of as a literal due process case: The complaint was that the extraordinary financial backing given by one party to the campaign of a judge in the case deprived the other party of a neutral adjudicator. It's hard to state an objection that more clearly sounds in due process, conventionally understood.

Thus, whatever one thinks of the likely consequneces of Caperton, the notion that it is somehow an activist departure from the text of the Constitution is simply wrong.

Posted by Mike Dorf

Bad State Governments, continued

noreply@blogger.com (Neil H. Buchanan) — Thu, 11 Jun 2009 19:01:00 +0000

In late 2006, when I was still living in New York City, I posted on this blog "New York -- Worst State Government Ever?" in which I argued that New York State's government was in a meaningful sense not a democracy, because it is run by "three men in a room" -- the governor, the House leader, and the Senate leader -- only one of whom had any real chance of being dislodged from his office by an election. Moreover, unlike the federal government and most other state governments, the government in New York vests nearly complete power over the legislative process in the leaders of the two houses, making it virtually impossible for any other legislator to influence political decisions.

As I prepare to move to New York state for my sabbatical year, I now find that New York has figured out a way to make matters worse. The Republicans' long-time stranglehold on the state Senate was finally broken in 2008, changing the party of one of the three men in the room. That did not really make the system any better, and in some ways it is a lot worse, because the newly-empowered senate Democrats have shown absolutely no ability to participate constructively in the legislative process (understandably, one supposes, given that they have never had any opportunity to develop abilities along these lines). The New York Times columnist Gail Collins (about whom I offered only faint praise in a post this past Spring) has written some excellent pieces about the pathetic performance of the state legislature, and senate Democrats in particular. (Sorry for the lack of links, but I'm on deadline!)

Now, however, we face an entirely new type of craziness, as two Democrats in the state senate have recently defected, giving control of the senate back to the Republicans. Or has it? Apparently, the Democrats have locked the doors to the senate chamber and will not say where they are hidden. Collins has an excellent column in today's Times describing the mess and pointing out that some of the characters involved are truly loathsome (one being under indictment for slashing his girlfriend's face with a piece of broken glass). It's funny until it isn't.

As Collins points out, the claim that New York has the worst state government, while facially plausible, is hardly undisputed. Tales of similar craziness abound in state capitols across the country, notably Illinois, New Jersey, Louisiana, Texas, and Connecticut. Which raises an interesting question: Should the chronically dysfunctional nature of state governance in this country cause us to move power away from the states, or should we instead push more power onto the states in the hope that greater responsibility will force them to reform themselves?

Virtually everyone agrees, at least in the abstract, with Brandeis's description of the states as "laboratories of democracy." (For an interesting argument against the standard view that Brandeis's argument was meant to support federal diversity, see here.) Whether liberal or conservative, federalist or Federalist, it is possible to find situations in which one would worry about taking power away from the states even as one would support federali. When the abstract arguments meets the lunacy of Albany, Trenton, and Austin, however, should we not admit that -- as bad as the federal government might be compared to what it should be -- state governments are a lost cause?

It is possible that state governments are as bad as they are precisely because they have become less and less relevant in the post-New Deal era. There is very little reason to aspire to high state legislative office as a career goal, and those who do so usually seem to have an eye on national office. If the state legislatures had more important things to do, they might attract people to serve who are not clowns and criminals.

This argument is a larger version of a phenomenon that I noticed a few years ago (before control of Congress switched from the Republicans back to the Democrats), when the staff of the Joint Economic Committee was issuing a stream of simply embarrassing political hack work dressed up as policy commentary. At the same time, however, the staff of the Joint Committee on Taxation was producing professional, nonpartisan work that everyone took very seriously. When I asked some colleagues why this was so, the most convincing answer that I received was that the JCT actually has important things to do and must do it quickly, giving no one the luxury of turning the committee into an arm of a political party. The JEC, by contrast, essentially has nothing important to do.

Even if it were true that state legislatures could rise to the occasion if challenged, there is still a transition period to worry about. That transition period is also known as the immediate future. From my perspective, too much damage is being done by state governments as it is, and it is thus appropriate to respond pragmatically to reality by assigning responsibilities to those bodies most likely to act responsibly. Yes, this has a self-reinforcing nature to it; but if we really want to save the states from becoming less and less relevant, the first step should not be giving them more to do even as they fail in their current endeavors. The first step is to clean up state governments.

-- Posted by Neil H. Buchanan

Timing Is (Sometimes) Everything

noreply@blogger.com (Sherry F. Colb) — Wed, 10 Jun 2009 19:30:00 +0000

Today on FindLaw, I have a column discussing the Supreme Court case of Kansas v. Ventris. In this case, the Court held that even when the police obtain a defendant's self-incriminating statement by violating the Sixth Amendment Massiah right to counsel, the statement is nonetheless admissible for the limited purpose of impeaching the defendant's credibility at trial. The column explains what the Massiah right to counsel is and how the Court reaches its conclusion that violations need not necessarily result in suppression. One feature of the decision revolves around the judgment that Massiah violations occur during the suspect's interrogation rather than during the trial, when the resulting evidence is offered. Timing questions like this are not unique to Massiah violations but permeate the law more generally.

In the criminal area, for example, some crimes happen more or less all at once (a gunman shoots a victim, and the victim dies immediately), while others take place over a span of time. Some crimes involve an action whose harmful consequences do not come to fruition until later. One example is the person who sets up an explosive device in a building and schedules its detonation for four hours later, when the building will be full of people.

Though such a person is already guilty of a crime (including, perhaps, attempted murder) at the moment she sets up her device, she becomes guilty of murder only at the point at which the device explodes and one or more people die as a result. Some scholars have questioned whether it is appropriate to punish (or even to classify) criminals and crimes differently, depending on the results, given that an actor's state of mind and actions are the same, regardless of when and whether others suffer death or injury. Yet because the purpose of prohibiting the behavior is to shield victims from injury and death, we do tend to treat the crime as distinctly bad if injury and death follow.

In the torts context, such time-splits are common as well. In products liability, for example, a company that manufactures and releases a defective product has begun the process that will render it liable when consumers suffer injuries as a result of the product. It will not be until later, however, when consumers concretely suffer the consequences (for example, by dying in car explosions caused by a defectively placed gas tank) that the company can be described as liable for wrongful deaths. Though the culpable, negligent or otherwise wrongful behavior can be said to have taken place long before the wrongful deaths occur, the harm is in an important sense not complete unless and until injury and death actually follow. And in some -- though not all -- cases, a timely product recall can render the initial conduct completely harmless.

In many circumstances, it does not matter whether we characterize the misconduct as occurring at the first point (when the culpable/negligent/defective act is performed) or at the second point (when someone suffers untoward consequences). Sometimes, however, the characterization does matter.

In the case of Fourth Amendment violations -- which occur when a state actor performs an unreasonable search and seizure -- the U.S. Supreme Court has held that the entire violation occurs at the time of the unlawful search or seizure. When the prosecution offers the products of that unlawful conduct into evidence, then, there is no further Fourth Amendment violation but instead, a rewarding consequence for a past violation and accordingly, a potential incentive for future violations. It is for this reason that courts suppress the evidence (rather than because the introduction of illegally obtained evidence itself violates the Constitution).

In the case of the Sixth Amendment Massiah right, the Court has held that post-charge interrogations are unlawful in the absence of counsel. It has indicated, in fact, that the same conversation between a state actor and a suspect that violates the Sixth Amendment after the suspect has been charged with the crime at issue could have occurred lawfully prior to the suspect's being charged with the crime. There is therefore nothing inherently objectionable about the conversation itself.

In Ventris, however, the Court said that the Massiah violation takes place at the time of the uncounselled conversation and is therefore a past violation by the time a prosecutor offers the defendant's statements into evidence at trial. As such, as in the Fourth Amendment case, the introduction of the statement into evidence does not itself violate the Constitution. For that reason, both Fourth Amendment violations and Sixth Amendment Massiah violations may yield evidence that is admissible for some purposes (such as impeachment of the defendant's testimony), without implicating the Constitution.

As I argue in my column, however, it makes little sense to characterize the post-charge uncounselled interrogation as itself constituting the violation (before the trial takes place), because the point of counsel's presence is to ensure that the subsequent trial is not tainted by ill-advised (or better, unadvised) responses to state inquiries. If there is no trial, then the nonexistent trial is necessarily not tainted by the suspect's unadvised answers. To say, as the Court does, that the defendant suffers the violation only at the point of the interrogation is tantamount to saying that a consumer who dies after ingesting an unsafe medication suffers only at the point that the manufacturer of the medicine first released the unsafe product to the public.

The entire point of prohibiting the release of unsafe medications is, of course, to avoid the ingestion of such medications by consumers; and the entire point of providing an attorney to a suspect after the latter is charged with a crime is to avoid the introduction of uncounselled, post-charge statements at the defendant's trial.

By stark contrast, when police search without probable cause, they are --in the moment -- inflicting a privacy harm on the person who is searched. The point of prohibiting such searches is not to prevent the prosecution of people using evidence obtained in unlawful searches. Indeed, most searches performed in the absence of probable cause will not yield any evidence, because the people searched are likely to be completely innocent. Far from mitigating the privacy harm of the search, however, the target's innocence aggravates that harm. This is why so many people complain about the exclusionary rule -- it seems only to compensate the people who least deserve compensation, the people on whom evidence implicating them is found (and thus, ex post, who were the ideal targets of investigation).

As I argue in my column, Ventris does not persuasively defend identifying the Sixth Amendment violation as occurring at the time of interrogation. Being told by an undercover informant -- posing as a cell-mate -- that you seem to have something serious weighing on your mind becomes "unfair" -- if it ever does -- only at the point when your confidences become evidence at your trial.

Posted by Sherry Colb

Recusal and Due Process

noreply@blogger.com (Michael C. Dorf) — Wed, 10 Jun 2009 01:32:00 +0000

It is no secret that many law professors daydream about what a terrific job they would do if named to the Supreme Court. Who knew that, conversely, the Chief Justice enjoys playing law professor? In his dissent in Caperton v. A.T. Massey Coal Co. on Monday, C.J. Roberts posed no fewer than 40 hypothetical questions that, he argued, the majority opinion left unresolved and thus would, he worried, become the subject of protracted litigation. Many of these questions would be excellent fodder for extended classroom discussion or exams. Whether they effectively make the point that the Chief Justice (joined by Justices Scalia, Thomas and Alito) was aiming at is another question entirely.

The majority opinion by Justice Kennedy finds a due process violation where a West Virginia Supreme Court justice refused to recuse himself in a case in which one party, who had $50 million at stake, had spent more money (over $3 million) successfully trying to elect that very justice than the sum total of all other money spent on behalf of that justice. As stated by the U.S. Supreme Court, "[o]n these extreme facts the probability of actual bias rises to an unconstitutional level."

The chief complaint of the Chief Justice is that lawyers being clever, they will find ways to characterize other cases as likewise extreme, thus opening the floodgates. In part this is simply a fight between a functionalist majority--adopting an open-ended standard--and a formalist dissent--favoring a rule that would bar all due process recusal claims that do not fall into one of two categories enunciated in prior Supreme Court cases: 1) due process requires a judge with a "direct, personal, substantial pecuniary interest in reaching a conclusion" to recuse; and 2) a judge may not preside over a criminal contempt prosecution if the judge was himself the object of the allegedly contemptible behavior.

I tend to be a functionalist (although I certainly appreciate the attraction of more hard-edged rules in some contexts), but quite apart from that broad orientation, there is much that is problematic about the dissent, even taken on its own terms. To wit:

1) One could as easily play 40 questions with the part of the test (traceable to the Court's 1927 decision in Tumey v. Ohio) that the dissenters accept. What counts as a "personal" stake? How "substantial" must it be? Does that depend on the judge's wealth or is it an absolute standard? Does a spouse's financial interest count? How about a parent's or a child's? What counts as "direct?" And so on. It is clear that the Tumey "rule" accepted by the dissenters is no more hard-edged than the majority's approach in Caperton. And yet, as Justice Kennedy notes, there has been no flood of Tumey claims.

2) Why do the dissenters draw the line at Tumey and In Re Murchison (the 1955 contempt case)? Murchison does not purport to derive the circumstances when due process requires recusal from the original understanding or the common law. Rather, the Murchison Court engages in first-order analysis of the concept of minimal procedural fairness. Here is how Hugo Black reasons for the Court in Murchison:

A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered.

In Tumey, to be sure, the Court (through C.J. Taft), does purport to root its rule in the common law background that was presumably adopted via the Fifth and Fourteenth Amendments. But as noted above in my point 1, the Court then synthesizes those cases in a very open-ended standard. So if the Caperton dissenters accept an open-ended standard (as they do via Tumey) and a principle of recusal not in any way derived from the original understanding or the common law (as they do via Murchison), what possible basis do they have for categorically declaring illegitimate the concatenation of these two: an open-ended standard not derived from the original understanding or the common law?

3) The closest thing the dissenters have to an answer to that question is the following dicta from Tumey: "All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion." Yet even this language does not support the dissent's categorical denial, for the operative word here is "generally." Yes, in general, grounds for recusal under state law do not rise to the level of a due process violation, but in extreme cases, they can. And that's exactly what the Caperton majority says.

4) The dissent also fails to come to grips with the fact that, with an important class of potential exceptions to which I'll turn in point 5, all of the ambiguities that are raised by the Chief Justice's 40 questions are also ambiguities in the state law of recusal. As the Caperton majority notes, West Virginia has adopted the ABA test for appearance of impropriety: "whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." There is no reason to think that standard has proven unworkable.

5) But that brings us to the best point the dissent has: There is a difference in the procedural posture of a recusal motion under state judicial ethics standards--which is addressed to the discretion of the judge whose recusal is sought--and a due process claim that a non-recusing judge's participation tainted the outcome of proceedings--which is addressed to the legal judgment of a reviewing court. One could think that the ambiguity of the ethics rules is acceptable in the former context but not the latter. This is, I acknowledge, a legitimate concern, but I think it still doesn't do that much work for two reasons:

a) C.J. Roberts raises the possibility in his question 33 that the non-recusal of a state judge could serve as the basis of an independent lawsuit in federal court pursuant to 42 U.S.C. sec. 1983, but that is extremely unlikely. Much more likely, a litigant would have to raise the due process concern on direct review in the state court system, and state court judges will generally be quite reluctant to call out their colleagues for non-recusal. The only federal court that could get involved would be the U.S. Supreme Court by way of certiorari, which it is unlikely to do very often.

b) Once again, Justice Kennedy's point about Tumey is instructive. Tumey motions are addressed to the legal judgment of the reviewing court, just like Caperton motions will be, and yet they have hardly flooded the courts.

Finally, I offer a point that is not intended as a criticism of the dissent but simply an observation: The 5-4 ideological split in this case may obscure what I suspect is an important subtext of the case. With the exception of Justice Kennedy, all of the Justices in the majority in Caperton dissented in 2002 in Republican Party of Minnesota v. White, a case in which Justice Scalia wrote the majority. That case struck down a Minnesota judicial canon that forbade a candidate for judicial office from announcing "his or her views on disputed legal or political issues." The dissenters there were sympathetic to the notion that if a state is going to have judicial elections, it can nonetheless take steps to ensure judicial independence. Justice Scalia's majority opinion, by contrast, took pains to argue that getting elected to a judgeship on a "platform" is not inconsistent with judicial impartiality. The tone of Justice Kennedy's concurring opinion in Republican Party of Minnesota more or less split the difference: He was all for strict standards of impartiality but thought that these could not be constitutionally pursued by limits on campaign speech.

Thus, the breakdown in Caperton may well be attributable to the respective attitudes of the various Justices towards judicial elections that are run like other elections. That would also explain why Justice Kennedy, who is not generally sympathetic to limits on campaign finance for other elected officials, joined--indeed led--the "liberals" in Caperton: When it comes to judicial elections, he shares their regulatory sympathies.

Posted by Mike Dorf