Dorf on Law

Mandatory Ultrasounds and the Adoption Alternative

noreply@blogger.com (Sherry F. Colb) — Wed, 30 May 2012 10:30:00 +0000

by Sherry F. Colb

In my Verdict column for this week -- Part 1 of a 2-part series -- I discuss the set of Texas amendments to the state's Woman's Right to Know Act, a group of amendments that I call "the Sonogram Law." The Sonogram Law, passed approximately one year ago, requires abortion providers to give women an ultrasound at least 24 hours prior to her abortion (or 2 hours prior, if she certifies that she lives at least 100 miles from a provider) and display the ultrasound image for the woman, explaining in detail the contents of the image, playing any audible fetal heart sounds, and explaining those sounds to the woman as well. A group of Texas providers challenged the constitutionality of the Sonogram law as it affects physicians, but my column focuses on the constitutionality of the law as it affects women seeking an abortion. I examine how the Sonogram law resembles and differs from abortion regulations that the Supreme Court has considered in the past.

In this post, I want to take up the related question of what happens to women who decide to remain pregnant after seeing an ultrasound, not because they want a baby, but because they feel pressured by their "informed consent" session into taking their pregnancies to term.

In discussing the burden of an unwanted pregnancy, I have generally focused on the intrusion of such a pregnancy on a woman's bodily integrity. To force her (or pressure her with targeted emotional appeals) to remain pregnant against her will is to support a monumental invasion of her body that burdens her organ systems, her health, and even her ability to sleep and to breathe comfortably. Regardless of what one believes about the moral status of an embryo or fetus, the physical imposition of pregnancy provides a compelling argument for protecting a woman's access to abortion. I have described this basis for an abortion right as "The Bodily Integrity Interest" (or "Bii") in a symposium piece about the rights and interests of future generations.

In thinking about the Texas ultrasound law, however, I have given some more thought to another argument for protecting a woman's right to have an abortion, particularly in the early stages of an unwanted pregnancy: the interest in avoiding the emotional pain involved in giving up a child for adoption.

For someone who truly believes that a fertilized egg is a "child," I recognize that my argument here will not be persuasive. Unlike the bodily integrity interest, the interest in avoiding an emotional bond that will subsequently be severed cannot justify killing someone (as opposed to terminating something that will later become someone). On the other hand, to the extent that we have doubts about when exactly a zygote or developing group of cells becomes "someone" who can meaningfully be considered a "child," it becomes legitimate to consider the impact of unwanted bonding on someone who will not be able to keep her baby once he or she is actually born.

In a book entitled The Girls Who Went Away, author Ann Fessler relates the stories of women (whom she interviewed) who gave birth in the decades before the Supreme Court decided Roe v. Wade, a period during which many single young women were treated as presumptively unfit parents who should be forced or pressured to surrender their babies for adoption by more suitable families (i.e., married couples). With no legal abortion option, the women whose stories fill the book gave birth and then promptly lost their children. Their tremendous suffering, grief, and disorientation comes through very clearly and poignantly in the book, and many of them never recover from the loss. If a woman is not going to be able to keep her baby, it is a special sort of cruelty to force or strongly pressure her nonetheless to gestate and give birth to that baby, only to have to say goodbye.

I cannot avoid observing here that a grotesque version of what confronts women in these circumstances confronts every dairy cow within the industry, including on allegedly "humane" farms. Like humans, other mammals form extremely strong emotional bonds to the babies to whom they give birth. In dairying, we forcibly impregnate dairy cows on a "rape rack" and then, after they give birth and express no greater yearning than to nurse and to be near their new babies, we take away their babies, one after another, so that we can consume the mother cows' breast milk. In thinking about the reproductive abuses that women unjustly confront, in Texas and elsewhere, it is worthwhile to think too about our nonhuman counterparts whom we daily condemn to similar reproductive anguish with our consumption choices.

Bumpkin Savants and Detectives (It's About Money)

noreply@blogger.com (Bob Hockett) — Tue, 29 May 2012 04:30:00 +0000

by Bob Hockett

The past year - or two, depending on whether you look both directions or only to rightward - seems to have brought something new to the long sorry annals of money-crankery.

What was new two years ago was the emergence of sizable numbers of people - benighted, sure, but nonetheless numerous people - who seemed to believe they held 'theories' of money. These were of course sundry 'tea party' and crypto-libertarian types who viewed Ron Paul as something more than a droll drooling bumpkin savant. They took him seriously. Some appeared even to take him for some sort of 'prophet.' Let's call him the Apostle Paul, for reasons that I'll elaborate more fully below.

In following Paul these poor people began losing their innocence - their monetary virginity, so to speak. They began learning to pronounce words associated with recondite subjects the existence of which people like this had not known before. Before long they began speaking declaratively in tones that suggested they now 'opined' about money. I suppose everyone thinks about money sometimes - how to earn more of it, how best to spend or to save and invest it, that sort of thing. But do most people 'opine' or 'theorize' about money - contemplate 'what it is, whence it came, why it matters,' if I may be permitted the pleasure of sounding a Galbraithian tone for the moment? Do most people even know what it would be, or to look like, to do that?

Yet here were these lumpen proletarian white people in Bermuda shorts and tee-shirts, looking anything but the courtly constitution-writing, Virginian violinist 'gentleman planter' types they took themselves to be channeling, all of them learning to use phrases like 'fiat currency' while wearing 'concerned,' 'troubled' looks on their faces and threatening to lynch Ben Bernanke. Money-cranks are, of course, a hardy perennial of American public life. But what was once more like syphilis - an obscure, vaguely scandalous subject that folk tried not to talk about in polite society - suddenly became a 'hot topic' among growing numbers of yayhoo cognoscenti two years ago.

What became new more like one year ago was something yet stranger. This was when sizable numbers of self-imagined 'progressives' began sounding themes like those we'd been hearing from the aforementioned tea-types. Call me obtuse, but had this been going on before? I only began noticing once I began getting involved with the 'Occupiers' last autumn - many of whom actually are colleagues at this point on several working groups.

I was surprised first by how many at Zuccotti Park held signs bearing images of Ben Bernanke with devil horns or swastikas, and by some who would dress as poor Ben and parade 'round with nooses encircling their necks. What gives, I asked some of these colleagues-to-be. The first answers I heard were not all that surprising - they were the answers of those who believe that the Fed's been 'in bed' with the big bad bankers who 'took down the economy.' That is of course in many ways a misunderstanding - at least of the Bernanke Fed - but not an un-understandable one.

Yet before long I found myself dismayed by encounters with some in Zuccotti whose bill of particulars against Ben included his plans to ... ready? ... 'take us off of the gold standard and debase the currency.' Let me end this paragraph there so that that can soak in.

After doing the requisite spit-take, I sounded some of these people out a bit more in hopes of getting a bead on where they were getting and where they were going with this. And, lo, it emerged that many were reading the same brain-virus materials as were followers of Paul. What in heavens name's happening here?, I marveled. Don't these people know that the gold standard was the cause celebre of all those white-moustached, black-tailed and top-hatted 'big city' London and New York bankers against whom the original Progressives inveighed at the turn of last century? What about the ruin of all those agrarians by gold-shackled tight money back in the late 19th century? And how about FDR's ueber-progressive decision at last really to take us off gold - a decision that led Maynard Keynes enthusiastically to declare in an OpEd, 'the President is splendidly right!'? I thought lefties - not commies, but lefties - liked FDR!

I've got a provisional 'theory' about this, probably not unlike that held by many others, which takes me back to my 'Apostle Paul' proposal for christening Saint Ron.

Many years ago, while a student, I worked now and again at a rather distinguished art museum, best known for its remarkable Asian collection, to earn spending money. Those of our readers who attend such museums know that they have very well developed security apparati, often heavily staffed. Often these staffs, for their part, are led by people who once were, or perhaps wished to be, police or private detectives. Wannabe gumshoes and secret agents. One of these upper level fellows at my museum always looked much the part, with side-parted Vitalis-slicked hair and a sort of permanent squint in one eye. He always seemed to be sizing you up, figuring your angle, ready to stop you before you left work that day with the Ming scroll or Rembrandt rolled up in your rucksack.

So one day I heard that this fellow had once been a student at a nearby school of theology that trained mainline Protestant ministers. I wondered what had led to his change of career paths - disappointment at learning there's no longer an Inquisition, perhaps? - so I just up and asked him. Suddenly his eyes narrowed, he calculated a moment, then cautiously motioned me in closer, casting a sidelong glance or two rightward and leftward before answering. 'I don't know how to tell you this,' he said, 'but I know some things about the Apostle Paul that you don't wanna hear about.' This of course brought a spit-take of its own, along with a guffaw of delight, from your faithful reporter. Our fellow humans are such marvelous creations!

But the tentative lesson I drew from this episode is that some people, at least, simply require occult understandings of things, quite irrespective of such attributes as plausibility. Presumably it stems partly from whatever leads children to love ghost stories, as well as to like being frightened or chased by adults impersonating inexplicably malevolent bad guys or monsters - some need to be wowed by mysterious and dangerous extramundane stuff. (Life's otherwise boring?) Surely it also has something to do with a deeply felt need on the one hand for readily intuited explanations of painful and bewildering developments, accompanied by a felt inability to put in the time or the effort required to get to the real bottom of the thing. And Lord knows there's been much bewildering pain lately, much of it tied up with money - a notoriously elusive phenomenon that even (non-monetary) economists often are flummoxed by.

As significant a source of the new money crankery as that latter one is, though - accounting, perhaps, for the newly large numbers of cranks - I can't help but think that the first one is more fundamental. Some people simply prefer the bizarre and occult explanation, even when able to grasp the more plausible mundane one. A deep-seated 'theological' need, perhaps. Whatever it is, I conjecture the pied piper Paul and his passel of merry followers are drawn into money-crankery by much the same forces as led my seminary-dropout conversant to what passes these days for 'detection.'

There is a real problem here, though, for all of the twinkle-eyed Chaucerian amusement it brings. For the new wave of 'goldbugs' and 'sound money' cranks actually is calling the shots with some folk in the legislature. Neil has written a great deal on that to illuminating effect. I'll offer my own two cents too - backed by no more than copper - as a sequel to this post in the not-too-distant future. In the meanwhile, please trust in Ben, not in Ron.

Fair Tests of Predictions: Stimulus and Austerity

noreply@blogger.com (Neil H. Buchanan) — Fri, 25 May 2012 07:01:00 +0000

-- Posted by Neil H. Buchanan

In my new Verdict column this week, I discuss the last-ditch efforts by economic conservatives to defend "expansionary austerity," the claim that cutting government spending (and, for at least some fans of the theory, raising taxes) will -- contrary to decades of accepted Keynesian wisdom, as found in nearly every economics textbook -- result in a net increase in a country's economic output and employment. This non-Keynesian result, we are told, will occur because of an increase in spending by businesses and consumers that will more than make up for the government's drag on the economy.

The most surprising economic story of the last few years has been that the governments of nearly every advanced economy have publicly embraced austerity measures, putting into disastrous practice an anti-government ideology that was surely going to exacerbate our profound economic troubles. And as Keynesians predicted, those economies have weakened, rather than strengthened. Anyone who has read my posts over the past few years, or anything by Brad DeLong or Paul Krugman (among many others), will recognize this story.

When the world's major economies continued to stagnate (or worse) in the face of austerity measures, the first line of defense from the believers in the Confidence Fairy was that the theory would start to work any time now. It simply had to work, they said, because there was empirical evidence showing that austerity is, indeed, expansionary. As I described in a Verdict column last December, however, the studies to which austerity's advocates pointed, to prove that governments can slash their way to prosperity, were simply irrelevant to our current circumstances. (For example, there have been times when some countries cut government spending at the same time that they were experiencing export booms, with purchases by foreigners allowing the countries to avoid recession. That does not, however, mean that we can simply count on an export boom -- or any other fortunate event -- to offset austerity today.)

My new Verdict column discusses the next stage of denial by the Austerions. The defenders of the faith now say that we never actually tried austerity at all, making the victory laps by Krugman and others completely inappropriate. How do we know that we never tried austerity? Because government spending in the major countries went up (or, in some cases, did not go down by a lot) over the last few years. That cannot be evidence of austerity, can it?

Actually, it can, and it is. Interested readers can look at yesterday's Verdict column to read my full argument. Short version: Austerions confuse cause and effect, thinking that a government is not slashing spending (and harming people) merely because the consequences of those cuts result in even more human need for other types of spending. That we are not seeing huge spikes in total government spending in the current period -- when we should otherwise expect discretionary spending to remain constant (or to rise), while emergency spending (unemployment benefits, Medicaid, food stamps, etc.) should be expected to increase in response to economic weakness -- is evidence of the very deliberate cuts in government spending that have been enacted in the U.S. and elsewhere.

As I was thinking about the effort to claim that expansionary austerity has not been disproved, I began to think about how I have recently been in what might seem to be a similar position. One of the talking points from the right for the last few years, after all, has been: "We know Keynesian economics is wrong, because we passed the stimulus, and it did not work." The short-hand version of the response from me and my ilk has been: "No, stimulus was never given a fair test." At least in form, therefore, this looks an awful lost like the defensive move in which the Austerions are currently engaged. The similarity, however, is entirely superficial.

[On a grander scale, Professor Dorf mentioned to me (after reading my new Verdict column) that this "never tested" meme also captures the attitude of believers in Communism. They argue, quite plausibly, that Marx's writings simply are not the basis for so-called Communist regimes in the 20th Century. They thus claim (perhaps not as plausibly) that Stalinism, Maoism, and other real-world regimes that have been labeled Communist are wrongly used to smear an idea that has never been given a chance to succeed or fail. Professor Dorf pointed out that the defenders of austerity would certainly never credit the idea that Communism was never fairly tested -- just as, I would add, those same people vociferously reject any defense of fiscal stimulus. Professor Dorf's point raises a set of larger questions that require -- at the very least -- a separate post. Pending breaking news and other developments, I plan to return to this topic soon.]

So, how can I argue that stimulus was never fairly tried and tested, but austerity was?

As a matter of theory, the case for stimulus is straightforward, whereas the case for austerity is (at best) counter-intuitive. Because of basic national accounting, we know that cuts in government spending will put downward pressure on GDP, while increases in spending push GDP upward. We also know that, under more normal economic conditions, government borrowing increases interest rates, which depresses spending by businesses and households. This, however, will not be true when the economy is weak, because interest rates will not respond to government borrowing so long as private businesses have no reason to try to expand. And private businesses will only expand if government spending rises first (or if we are lucky enough to experience some unanticipated positive event, such as an export surge). As a matter of describing what should happen in theory, then, advocates of stimulus (Stimulators? Stimulants? Stimuloids?) argue that spending increases (and some tax cuts) during a recession will put people back to work, without any "crowding out" of the government's stimulative measures.

By contrast, Austerions have to explain how private actors overcome the logic of recession. Families and private businesses are understandably terrified of the weak economy, and they reduce their spending in response. Because of the first-mover problem, each family and business waits for others to start spending, hoping that others will get the ball rolling. They have no reason to believe that acting alone will do them much good, so they continue to hunker down. When the government cuts spending, people see that yet more people will soon lose their jobs. This gives them still more reason to be prudent.

For reductions in government spending to be expansionary, moreover, we not only have to believe that families and businesses will respond in a way that is contrary to their most natural impulses, but we must believe that they will do so in a big enough way to more than overcome the drag from the government's spending reductions. That is possible, and it is ultimately an empirical question, but when austerity makes matters worse, it is not easy to say: "But there must be something wrong with what we are seeing, because it just make so much sense for consumers and businesses to spend more in a weak economy when the government is reducing demand even further."

On the theoretical level, therefore, the Keynesian story is straightforward, whereas the case for austerity requires that a lot of unlikely things happen at the same time (and with sufficient quantitative force). Still, it is possible for counter-intuitive stories to turn out to be true. As an empirical matter, how do we compare the real-world "tests" of stimulus and austerity?

First, we have to ask whether the predicate action was taken in each case. That is, did we really do what Keynesians wanted to do, and (after the supposed failure of the stimulus in the U.S.) did we do what Austerions wanted to do? As noted above, my Verdict column makes the latter case: The U.S. and other major countries have deliberately cut spending (and have refused to increase spending, where doing so would otherwise be called for), for the past several years. Government workers are being laid off. Programs are being canceled. Benefits are being reduced or eliminated. Austerity is happening.

As to the question of whether there ever was ever any stimulus spending, the answer continues to be: Yes, there was some, but not enough. The U.S. stimulus package was heavily weighted toward tax cuts that were known not to be especially stimulative. Moreover, state and local governments were cutting like crazy, making the net stimulus from the government sector quite small. People like Krugman said these things, in advance.

Second, we have to ask if we saw what we should have expected to see, under each theory. Austerions told us that private businesses and households would excitedly respond to austerity policies by expanding their own spending. That has not happened. At all. Europe is in free-fall, even though Greece and Spain (and Ireland and Italy and Portugal) have been forced to cut their deficits.

We can expect some Austerions now to claim that the problem was that people were worried that austerity policies might be abandoned. If that is our test, however, then we really have entered the realm of wishful thinking, without any hope of subjecting our policy agendas to real-world tests. If austerity policies could only work in a world where everyone believes that those policies could never be reversed or modified, then we could only test austerity by permanently abandoning democracy (see France, Greece). And not only must we abandon democracy, but we must also believe that we have permanently abandoned it, and that the people who would take over our governments will never themselves think to abandon austerity.

Back on this planet, we can ask whether the results of U.S. stimulus policies supported the claims of Keynesians. Did the recession end, as Obama's people foolishly suggested it would? (They said at the time that the stimulus was not too small, after all.) No. Does that mean that the stimulus did not work? Again, no. Importantly, the economy strengthened somewhat during the time that the weak stimulus was in effect, and it weakened again when the stimulus died out (and the U.S.'s version of austerity started to kick in, under the post-midterms political regime). Moreover, the unemployment rate responded (both qualitatively and quantitatively) as we should have expected, given the relative size of the stimulus. We did not actually "do stimulus" very well, but the economy reacted as the theory said it would.

In short, there is no equivalence between Keynesians' claims that the stimulus was never fairly tried, and the claims by Austerions that austerity was never fairly tried. The theory was always stronger for stimulus than for expansionary austerity, and the evidence supports the Keynesians' theoretical predictions (about both stimulus and austerity). We used a little bit of stimulus, and we saw a little bit of positive response. We (and especially the Europeans) have tried a lot of austerity, and we have seen a lot of negative response. Doubling down on stimulus would have been twice as good (or more). Doubling down on austerity simply reflects ideological intransigence and an unwillingness to face reality.

The Catholic Dioceses' Lawsuits Against HHS: A Guide to the Perplexed

noreply@blogger.com (Michael C. Dorf) — Thu, 24 May 2012 11:00:00 +0000

By Mike Dorf

The lawsuits recently filed by Catholic dioceses around the country raise a number of interesting legal questions. In this post, I'll take a look at the main issues. I'm using as my point of departure the lawsuit filed by the Fort Worth, Texas Diocese (complaint available here) but the analysis would be the same for other cases.

I'll begin with a very brief overview. As part of the Patient Protection and Affordable Care Act (PPACA), employer-provided health insurance plans must cover preventative care for women, including, as interpreted by the executive branch, sterilization and contraception, which in turn includes contraception that works by preventing implantation (and is thus regarded by some people as a form of abortion). Such insurance plans cannot include any extra co-pays or premiums for this coverage.

Religious employers are exempt but the regulations define religious employers to refer (more or less) to churches and the like, rather than broader religiously affiliated entities, such as religiously affiliated schools and hospitals that serve people outside the faith. Under a compromise that the Obama Administration accepted earlier this year, the insurer rather than the employer must pay for the cost of contraception, etc. The Administration reasoned that because such coverage is cost-effective, premium increases would not simply be passed on to the employer and employee. (I discussed the underlying economic assumptions here.)

Although some Catholic charitable organizations were satisfied with the compromise, others weren't, leading to the current litigation. The strongest religious liberty claim goes like this: Catholics have religious obligations to tend to the needy by feeding, educating and providing medical care to them, regardless of whether the needy are Catholic; thus Catholic institutions will not qualify for the narrow exemption for religious employers (which only extends to institutions that "primarily" serve and employ co-religionists); but Catholics are also bound by a religious prohibition on supporting abortion and birth control, and so the legal obligation to provide health insurance that includes such coverage puts them to a choice between violating their religious obligation to tend to the needy of all faiths or violating their religious prohibition on supporting abortion and birth control.

The Fort Worth Diocese complaint sets out nine claims, but the first two go to the heart of the case. They contend that the regulations violate the Diocese's religious liberty as protected by the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause. RFRA, readers may recall, was held unconstitutional as applied to state infringements on religious liberty in the Boerne case. However, the Act remains valid as applied to the federal government (as illustrated by its application in the O Centro case). Because the requirement being challenged is contained in a federal law, the PPACA, it is limited by RFRA. Thus, the Forth Worth Diocese and other comparably situated dioceses are entitled to an exemption if, per RFRA, they can show that the application of the contraception coverage obligation (1) substantially burdens (2) the exercise of religion, unless (3) the PPACA obligation is narrowly tailored to advance (4) a compelling government interest.

Because RFRA was modeled on constitutional case law, the same test will apply under the First Amendment
if the Diocese's free exercise rights are implicated. Employment Division v. Smith, the case that RFRA sought to overrule, held that general laws that incidentally burden religion do not trigger heightened scrutiny under the Free Exercise Clause, and so it might appear that the free exercise claim fails. To be sure, the Diocese includes a claim that because the PPACA requirement is subject to various exceptions, it is not neutral, but this strikes me as a losing objection. There is no singling out of religion or particular religions here.

The better reason to think that Smith may not bar the free exercise claim relates to what the complaint calls (in Count V), "Interference in Matters of Internal Church Governance." Per custom, the complaint does not cite case law, but this claim pretty clearly aims to build on the Supreme Court's decision earlier this year in the Hosanna-Tabor case. There the Court held that Smith does not apply to internal governance claims. Better yet for the plaintiffs here, Hosanna-Tabor also interpreted the "ministerial exception" broadly, to go beyond the right of a religious body to decide on its own pastors. So too here, the Fort Worth Diocese and the plaintiffs in other cases will undoubtedly argue, the exception for churches and the like but not religious schools, hospitals and charities, is too narrow.

Yet in the end, it probably does not really matter whether the plaintiffs succeed on the internal governance argument, because even if they do, all they will get under that doctrine is the application of the same test to which they're independently entitled under RFRA. To be sure, there is a bit of wiggle room here, because the internal governance doctrine interprets both the Free Exercise and Establishment Clauses, so it's possible that it is not even subject to the strict scrutiny test: Prima facie violations of the Establishment Clause generally mean the government loses, full stop. However, I doubt the courts would apply the constitutional test that way. It seems to me much more likely that in this context, a finding that internal governance is implicated, would trigger strict scrutiny rather than per se invalidation.

Accordingly, I believe the case will come down to the application of the RFRA test, certainly as a matter of RFRA itself and maybe via the First Amendment too. Here is where the government should probably win. Religious freedom claimants rarely lose on the ground that their claims aren't sincere, so let's assume that the Diocese really does operate under a religious prohibition against facilitating contraception, even for non-Catholics. The Diocese then argues that the PPACA substantially burdens its ability to act in accordance with that prohibition and that in doing so, the PPACA is not narrowly tailored to advance a compelling government interest. After all, the Diocese says, if the government wants to make contraceptives more widely available, it has many means of doing so without enlisting religious organizations in violation of their beliefs.

Convincing? I don't think so. The problem with the Diocese's argument is that it utilizes a too-encompassing notion of participation in conscience-violating activity. Consider a reasonably closely related hypothetical. Suppose that Section 3 of the Defense of Marriage Act, which defines marriage as straight marriage, is repealed, and that the federal government treats marriages as valid or not depending on state law. Now suppose that a Catholic or other religious hospital in New York objects to making Social Security payments for some or even all of its employees on the ground that such payments will go to support Social Security disability and survivor benefits for the same-sex spouses of people married under New York law, and thus under federal law. Let's imagine that the tenets of the religion with which the hospital is affiliated really do forbid the Social Security payments. Nonetheless, the hospital loses--probably even before a court gets to applying strict scrutiny. For a law to substantially burden the exercise of religion, the religious claimant must be claiming something that is not too "external" to the claimant.

The point is apparent in two pre-Smith cases, i.e., cases decided at a time when the Court was still willing to subject government laws and policies to strict scrutiny even if they didn't single out religion. They are the Lyng case, in which the government was permitted to build a road on land holy to a Native tribe, without having to satisfy strict scrutiny, and the Roy case, in which the plaintiffs unsuccessfully objected to the government's assignment of a Social Security number to their daughter on sincere religious grounds. Whatever one thinks of the precise results in these cases, they illustrate a broader principle that there are limits to what counts as coerced participation in religiously impermissible activities.

A requirement that Catholic hospitals perform abortions or dispense contraception pretty clearly triggers strict scrutiny under RFRA. A requirement that Catholic hospitals and schools make Social Security payments for their employees, which payments may then be used to pay benefits to same-sex spouses (or under current law, to spouses who were previously divorced), pretty clearly should not trigger strict scrutiny under RFRA. To my mind, the requirement to provide health insurance that includes coverage for contraception etc. falls on the no-strict-scrutiny side of the line. The Catholic institutions are not being required to provide goods and services they deem immoral. They are not even being asked to pay for such goods and services.

That doesn't mean I'm confident that some judge won't rule for a plaintiff in one of these cases. I'm enough of a legal realist to understand that ideology will lead different judges to see these issues differently. But I do think that I have zeroed in on the right question: At what point does conscientious objection fail because one cannot plausibly describe the relevant activity as "participation" without infringing the rights of others or social policy more broadly? As I've said before, that is not an easy question.

Connecting the John Edwards and Dharun Ravi Cases: Moral Luck

noreply@blogger.com (Michael C. Dorf) — Tue, 22 May 2012 18:21:00 +0000

By Mike Dorf

As I write, the jury in the John Edwards case is still out, deliberating about the fate of the former Senator. Here I want to reflect a bit about the seeming peculiarity of an element of two of the crimes that the prosecution has attempted to prove. As I noted nearly a year ago, as a predicate for finding that Edwards violated campaign finance laws with respect to the money provided by Bunny Mellon, the government must prove that Mellon intended the money as a campaign contribution. The oddity on which I want to remark is the notion that a criminal defendant's guilt or innocence turns on a third party's mental state. My analysis will lead me to note a connection to the Dharun Ravi case.

The complete jury charge in the Edwards case can be found here. For count 2, the judge summarized the charge as follows:

[B]efore you can find Mr. Edwards guilty, the government must prove beyond a reasonable doubt that, while he was a candidate for president, Mr. Edwards knowingly and willfully accepted or received, or knowingly and willfully caused another to accept or receive on his behalf, contributions from Ms. Mellon that totaled $25,000 or more during calendar year 2007.

Count 3 of the indictment charged the same conduct for calendar year 2008.

One way that Edwards could be found not guilty on these counts is if the jury finds that the money given by Bunny Mellon were not campaign contributions. As other instructions relevant to these counts make clear, whether the money counted as campaign contributions turns on whether Mellon intended the money to influence the outcome of the election. The jury was told that this is a factual question to be determined based on "evidence about the intent, motivation, and goals of Ms. Mellon, evidence about the statements made surrounding the solicitation and acceptance of the money, how the money was actually spent, and other evidence of all the surrounding circumstances . . . ."

As I noted in my post last year, I find it difficult to imagine that Mellon did not intend the money she gave to influence the election. Here is what I wrote then:

It is nearly inconceivable that the money for hiding the Hunter affair was not "for the purpose of influencing" the 2008 Presidential primary. What other possible purpose could it have served? Even if we assume that the Mellons and John Edwards were very close personal friends, what kind of human being gives a close personal friend over $700,000 to hide his affair from his wife? It's possible that Mellon, over 100 years old, was not aware of exactly how Edwards planned to spend the money but it's hard to believe that she just happened to give Edwards this enormous sum of money as a gift just when he happened, by sheer coincidence, to be running for President.

Now I should add the important caveat that I have not followed the trial all that closely and so it is possible that the evidence presented differed from what was described in the media a year ago. But assuming that the evidence at trial more or less tracked the public story, I would be surprised if Mellon's intent ends up being crucial to the Edwards defense. And from what I understand, the Edwards defense has mostly focused on his state of mind--arguing that he was out of the loop on Andrew Young's efforts to get money from Mellon.

Now let's focus on what I'm calling the main oddity here: The requirement that, as part of the prosecution's case against Edwards, it must prove Mellon's intent with respect to the money she provided. As I understand criminal law in general, for Mellon's intent to be an element of the crime, the jury must find beyond a reasonable doubt both: (1) that Mellon intended the money to influence the election; and (2) that Edwards knew that Mellon intended the money to influence the election. (The actual jury instructions require more than knowledge from Edwards; they require willfulness; but knowledge is enough for my purposes.)

Let's suppose that Edwards in fact knew all about the fact that Mellon was giving money to Young to hide the Hunter affair from Elizabeth Edwards. But consider two further possible scenarios:

Scenario A: Bunny Mellon writes a note to Edwards in which she says: "You're the best hope of the Democratic Party. I'm giving you this money to help you become President." Secretly, however, Mellon does not want to influence the election. Unbeknownst to Edwards, she contemporaneously writes in her diary: "I know that Hillary or Barack will crush that cad John in the primaries so I know this money won't make a bit of difference in the campaign. But I feel so bad for Elizabeth. I hope that John uses this money to spare her feelings."

Scenario B: Bunny Mellon writes a note to Edwards in which she says: "John, you are a cad and I hope you don't become President. I'm only giving you this money so you can protect Elizabeth from learning of your betrayal." Secretly, however, Mellon hopes to influence the election. Unbeknownst to Edwards, she contemporaneously writes in her diary: "I feel so guilty helping John Edwards get the nomination but I just know that he's got a better chance of winning the general than Hillary or Barack."

In both scenarios, Edwards is not guilty. In Scenario A, Mellon lacks the intent necessary for a campaign contribution, while in Scenario B, Edwards lacks the requisite knowledge of Mellon's intent. To me, the more problematic result is A, because in that scenario, Edwards has taken action which, had the world been as he thought, would have resulted in his committing a crime. He was just fortunate that--through nothing traceable to him--facts in the world made him not guilty. By contrast, Scenario B is not problematic at all, because there Edwards himself lacks the requisite mental state to commit a crime.

Upon reflection, it appears that what's peculiar in the Edwards case is actually quite a common feature of the criminal law: the problem of how to deal with moral luck. Scenario A is arguably the flipside of the Dharun Ravi case. Like Edwards in Scenario A, Ravi had the requisite intent to commit a criminal act. But whereas Ravi had the bad "luck" to have had his criminal act lead to a suicide, Edwards in Scenario A has the good luck to not even commit a crime due to something completely outside of his control.

The Domain of Moral Hazard

noreply@blogger.com (Michael C. Dorf) — Tue, 22 May 2012 04:30:00 +0000

By Mike Dorf

My latest column on Justia's Verdict uses the JPMorgan Chase trading loss as a point of departure to discuss a common conservative argument against regulation: That providing people and firms with express or implied insurance will lead those people and firms to take risks that are not cost-justified. In the column, I briefly discuss bailouts of banks and the auto industry, deposit insurance, and at the end, health insurance. Although the column does not use the term "moral hazard," it does invoke that concept, which is slightly broader than the notion that insurance dampens incentives. Moral hazard includes the idea that people will be more willing to spend others' money than their own. In this post, I want to say a few more words about the idea of moral hazard in the health field.

The ideologically conservative argument against third-party health insurance goes much like the argument against insurance in other contexts: In a well-functioning market, the price of a good or service will be set by the intersection of the supply and demand curves; health insurance enables patients to get health services for substantially less than their true cost (because the insurer pays most of the cost); that leads to too much health care and artificially inflates the price of health care.

The problem with the foregoing logic is not so much that it is wrong, but that it is incomplete. I can't speak for everyone, but personally, I don't like going to see a doctor. It's potentially unpleasant. (E.g., the doctor may need to draw blood.) It takes me away from other things I need to do (work) or want to do (play, spend time with family). And it could lead to bad news ("I'm sorry but you have scrofula" or "you need to lose 25 pounds"), which, in principle would be welcome because for most conditions early diagnosis increases the likelihood of a cure, but in fact, most people tend to avoid learning bad news even though such information could help them.

Accordingly, it strikes me that there are strong non-economic disincentives to going to the doctor, so the notion that we need policies that further discourage people from using medical services seems wrong. Co-pays do in fact suppress demand for medical services but I'm not persuaded that they are mostly suppressing unnecessary, as opposed to necessary, trips to the doctor.

Perhaps the real moral hazard problem in medicine is the moral hazard of the providers (chiefly doctors and hospitals). Suppose that Dr. X is trying to decide whether to recommend that patient Y undergo some procedure (let's say prostate surgery). In a perfect world, we would want the doctor to make a recommendation based on the expected costs and benefits of the procedure, without regard to cost. But in our actual world, of course, that's impossible. Money spent paying for prostate surgery is money not available for other (medical and non-medical) goods and services (for this patient or for others). And so a rational system would include some consideration of cost.

Our fee-for-service system does consider cost but in a peculiar way: The more procedures that Doctor X performs, the more money that he makes, and so it is in Dr. X's economic interest to over-treat.

That doesn't mean that any particular doctor will in fact over-treat. Professionalism is supposed to lead doctors to make recommendations strictly on the basis of the patient's best interest. But basic human psychology will tend to induce doctors to think that they are making decisions and recommendations based on patient well-being, even when their own economic interest colors their perception of such well-being. (Most of what I have just said about doctors also applies to lawyers, accountants, plumbers, and others who bill by the hour, but I'm discussing health care here, so I'll just note that fact and move on.)

Do the incentives of fee-per-service doctors cancel out the incentives of patients--deterred from visiting doctors by co-pays and the unpleasantness of the experience? That would be a happy coincidence, but I doubt it is true. The factors that keep patients away from the doctor will tend to keep them away from visiting regularly or early, thus meaning that when serious conditions are diagnosed, they're more costly to treat. Meanwhile, the incentives of fee-per-service doctors are to maximize expensive treatments, not office visits. Accordingly, it looks like we have a set of economic and other incentives that combine to undermine the cost-effectiveness of medical treatment.

One of the lesser-known features of Obamacare is its support for experimentation around alternatives to fee-for-service payment systems. (This goes beyond the experiments in Medicare and Medicaid.) In principle, there ought to be cross-ideological support for these experiments, because they build on the insight that moral hazard is real. But at least so long as health care reform remains highly politicized, we can expect these alternatives to be attacked.

Yet Another Exam

noreply@blogger.com (Michael C. Dorf) — Mon, 21 May 2012 04:30:00 +0000

By Mike Dorf

Continuing my tradition of posting my exams, below is the Federal Courts exam I gave this past semester. Students had 8 hours and were permitted to use whatever materials they wished (other than the interactive contents of another mind). They were required to answer each of the four questions, which were weighted equally. I also included the following general instructions: Assume that Hughes is a State of the United States. The (fictional) Federal District Court for the State of Hughes is within the (fictional) Twelfth Circuit. In answering all questions, assume that you are a law clerk to Judge Barbara Hand, who sits on the Federal District Court for the District of Hughes.

Once again, I set this out as an exercise. If you find this interesting, feel free to comment, but I won't grade comments. Grading the real exams was enough of a treat!

----------------------------------------------------------------------------------

The following facts pertain to questions I, II, and III.

In August 2011, Congress enacted last-minute legislation raising the debt ceiling and providing for automatic budget cuts beginning in January 2013. See Budget Control Act of 2011, Pub. L. No. 112-25. Those automatic cuts could have been averted if Congress approved legislation proposed by the bipartisan “super-committee” but the super-committee failed to agree on recommendations.

(Everything in the prior paragraph is true. Now we come to the made-up facts.)

Due to unexpectedly sluggish tax revenues and a rise in interest rates, the current debt ceiling will be reached earlier than originally expected, on November 27, 2012. Immediately after his narrow re-election in early November, President Obama announces that he is ready to negotiate a deal with Republicans (who retain control of the House and gain seats in the Senate) but that if no deal is reached by November 27, 2012, the President says that he will unilaterally authorize borrowing beyond the current limits of the debt ceiling. President Obama states that his issuing of “Presidential bonds” is necessary to avoid a violation of Section 4 of the Fourteenth Amendment. [1]

Congress fails to enact a bill raising the debt ceiling by the deadline and so beginning on November 27, the Treasury Department issues new bonds despite the fact that they bring the face value of outstanding debt beyond the limit set by the debt ceiling. Because investors are uncertain of the validity of the Presidential bonds, interest rates on them are somewhat higher than on bonds sold the previous week. Meanwhile, Republicans and some Democrats in Congress denounce the Presidential bonds as violating the separation of powers because Congress, not the President, has the power to borrow money. Political pundits also criticize the Presidential bonds. Perhaps most ominously, a person described as “a high-ranking Chinese government official speaking on condition of anonymity” is quoted in the Wall Street Journal stating that “if the legality of these bonds is not quickly resolved, we will need to adjust our portfolio.”

With the crisis deepening, Congress and the President reach an agreement that is enacted in legislation passed on December 4, 2012. It is the Bond Legality Assurance Act (“BLAA”) of 2012. The BLAA raises the debt ceiling by $2 trillion and further provides in pertinent part:

Section 101. This Act is passed pursuant to Congress’s powers to borrow money, to provide for the general welfare, to regulate interstate commerce, to enforce Section 4 of the Fourteenth Amendment, to make laws that are necessary and proper to carrying out its other powers, and/or any other powers that may be pertinent.

* * *

Section 201. Notwithstanding any other provision of law, all bonds issued by the United States government from November 27, 2012 through the enactment of this Act are fully legal and backed by the full faith and credit of the United States government.

Section 202. No court of the United States shall have jurisdiction to enjoin, invalidate, or otherwise call into question the legality of federal government bonds issued from November 27, 2012 through the enactment of this Act.

Section 203. This Act hereby expressly abrogates the sovereign immunity of any State that is or may be sued for its failure to treat bonds issued by the United States government from November 27, 2012 through the enactment of this Act as fully legal and backed by the full faith and credit of the United States.

Hart & Wechsler Investments is a private investment management company, organized as a partnership under Hughes Law and headquartered in Hughes City, Hughes. Hart &Wechsler promises its clients “modest but secure growth.” Its standard contract provides: “At all times, no less than fifty percent of each portfolio shall consist of U.S. government bonds backed by the full faith and credit of the United States.” During the period from November 27 through December 4, 2012, approximately $30,000 of U.S. bonds in the portfolio of Ingrid Investor matured. Hart & Wechsler invested $20,000 of that money in corporate bonds but in order to prevent the total portfolio from falling below fifty percent in U.S. bonds, Hart & Wechsler also purchased $10,000 worth of Presidential bonds for Investor’s account. In addition, Hart & Wechsler purchased approximately $100,000 worth of Presidential bonds for other clients with portfolios in similar circumstances.

When Ingrid Investor (who resides in Hughes City, Hughes) received her monthly Hart & Wechsler statement in mid-December, 2012, she contacted a lawyer, and a week later she filed a lawsuit against Hart & Wechsler, alleging breach of contract on the ground that the Presidential bonds were not “U.S. bonds backed by the full faith and credit of the United States” because they were issued by the President in violation of the Constitution’s assignment to Congress of the power to borrow money.

Hart & Wechsler filed an answer that made the following points: (1) There is no jurisdiction in light of Section 202 of the BLAA; (2) Quite apart from BLAA, there is no jurisdiction under 28 U.S.C. § 1331; (3) If there is jurisdiction, the case should be dismissed for failure to state a claim because the bonds were valid under Section 201 of the BLAA; (4) Investor suffered no damages as a result of the purchase of the Presidential bonds because they have since been guaranteed by Section 201 of the BLAA; and (5) Hart & Wechsler has the affirmative defense of impossibility under the contract law of Hughes.

The case is assigned to Judge Hand. She has asked for a memorandum addressing the following questions:

Question I: Does Section 202 of the BLAA validly strip the district court of jurisdiction?

Question II: In the absence of Section 202 of the BLAA, or assuming that Section 202 of the BLAA has no legal effect because it is unconstitutional, is there jurisdiction over Investor’s lawsuit under 28 U.S.C. § 1331?

Judge Hand has assigned other issues (such as the question whether Investor has standing and the question whether the state law defense of impossibility is applicable) to her other law clerk, so please confine your answers to the questions posed.

The following facts pertain only to Question III.

Meanwhile, another lawsuit arising out of the Presidential bonds has also been assigned to Judge Hand. This second case is a suit against Hughes State Treasury Secretary Tom Treasurer in his official capacity. Filed by a class of Hughes civil service workers, some of whom reside out of state, it alleges that from November 27 through December 4, the State Employee Pension Fund refused to purchase U.S. bonds as its existing bonds came due, instead investing $20 million in risky foreign government bonds that have since lost half of their value. The lawsuit raises state law claims of breach of fiduciary duty and breach of contract, alleging that the Fund was obligated to purchase U.S. bonds, and asserting federal court jurisdiction pursuant to 28 U.S.C. § 1332(d). It seeks an order to Treasurer to pay roughly $10 million from the State Treasury to the Fund, to make up for the losses incurred from the State’s refusal to purchase U.S. bonds during the contested period.

Treasurer files a pre-answer motion to dismiss on the ground that the lawsuit is barred by the state’s sovereign immunity or, in the alternative, the State was not contractually obligated to purchase Presidential bonds because they were constitutionally

invalid when they were issued.

Judge Hand asks you to address the following question in your memorandum:

Question III: Is the lawsuit barred by state sovereign immunity? Assume that Hughes has not waived whatever sovereign immunity it enjoys against the lawsuit.

The following facts pertain only to Question IV.

One night in February, 2011, police responded to a 911 call notifying the dispatcher that shots had been fired on Schwab Street in Hughes City, Hughes. Upon arriving at the scene, police discovered George Trigger kneeling over the 120-pound 5-foot, 4-inch dead body of 15-year-old Victor Victim. Trigger admitted to the police that he shot Victim but maintained that he did so in self-defense. Trigger said that he was patrolling outside of his house as part of a neighborhood watch program, when he saw a “suspicious looking man loitering with no apparent purpose.” Trigger approached the man and asked what he was doing, but the man refused to respond. When Trigger told the man to move along, the man “simultaneously reached into his pocket for a gun and lunged at Trigger.” Trigger says that at that point he fired three bullets from his semi-automatic pistol at the man at close range, killing him. The “man” turned out to be Victim. The police retrieved a mobile phone from Victim’s jacket pocket but found no gun or weapon other than Trigger’s own pistol. Trigger nonetheless insisted that Victim had a gun that “must be around here somewhere.” However, a police search did not reveal any weapon.

Trigger voluntarily accompanied the police to the station, where he was given his Miranda warnings and then gave a statement along the lines described above. He was later charged with the murder of Victim. At trial, the police introduced Trigger’s statement as well as physical evidence. Trigger took the stand to tell his story and on closing his attorney, Saul Goodman, argued self-defense. The jury was instructed that in order to find Trigger guilty of first-degree murder under Hughes law, it had to find beyond a reasonable doubt both that Trigger intentionally or knowingly killed Victim and that Trigger did not act in self-defense. Subject to exceptions not relevant here, Hughes law permits the use of deadly force against another person when a person reasonably believes that such other person is using or about to use deadly force against him or her.

The jury convicted Trigger of first-degree murder and following a separate sentencing phase of the trial, recommended a death sentence based on the aggravating circumstances that Victim was “especially vulnerable” and that the murder was racially motivated. Trigger was sentenced to death.

Trigger filed a timely appeal to the Hughes Circuit Court, raising the following two grounds for reversal: (1) there was not sufficient evidence to prove absence of self-defense beyond a reasonable doubt; and (2) there was insufficient evidence of racial bias to justify the jury’s finding of that aggravating factor. The Hughes Circuit Court rejected both claims in a brief opinion reviewing the evidence. Trigger did not seek discretionary review with the Hughes Supreme Court or the U.S. Supreme Court.

Two months after the Hughes Circuit Court ruling, Trigger--now represented by a new lawyer, Atticus Goldfinch, filed a state habeas petition in the Hughes District Court, alleging that his trial counsel, Saul Goodman, was constitutionally ineffective for failing to conduct or order an independent crime scene investigation. Such an investigation, the petition contended, would have discovered that the surveillance camera on a neighboring apartment building recorded the entire incident, and the recording would vindicate Trigger’s version of the events. Under Hughes law, the first time that a defendant may raise ineffective assistance of trial counsel is on state collateral review. The judge denied Trigger’s petition without reaching the merits of the ineffective assistance claim, because the collateral review petition was filed one day after the deadline and, under Hughes law, the filing deadline is jurisdictional and so cannot be extended. (Goldfinch apparently miscalculated the filing deadline based on the erroneous assumption that Columbus Day was an official state holiday.) The Hughes Circuit Court denied Trigger’s appeal in a one-sentence order stating: “The trial court correctly determined that the petition was not timely filed.” Trigger sought discretionary review by the Hughes Supreme Court, which was denied. He did not seek certiorari in the U.S. Supreme Court.

Represented by a third lawyer, Sandra Hackett Stevens, Trigger filed a timely habeas corpus petition in Federal District Court for the District of Hughes. The petition alleges that Trigger received ineffective assistance of counsel at trial and during his state collateral review proceeding. It further alleges that Trigger is, in fact, “actually innocent,” as would be shown by the video recording from the neighboring apartment building. The case is assigned to Judge Hand. She asks you for a memorandum addressing the following:

Question IV: To what relief, if any, is Trigger entitled?

End of Exam

[1] You can find a description of something resembling what is imagined here in Neil H. Buchanan & Michael C. Dorf, How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the Debt Ceiling Standoff, Colum. L. Rev. (forthcoming 2012), draft available at http://ssrn.com/abstract=2025178. You are strongly advised to do no more than glance at the article during the exam time, as the article does not address issues relevant to this exam.

This Week in Deficit Politics: The Consequences of Well-Meaning (but Foolish) Choices

noreply@blogger.com (Neil H. Buchanan) — Fri, 18 May 2012 20:34:00 +0000

-- Posted by Neil H. Buchanan

Even for those readers who do not obsessively follow such matters (that is, normal people), this week was a rather interesting one in the politics of deficits and debt. Speaker of the House John Boehner announced on Tuesday that he and the Republicans are planning to use the debt ceiling later this year to try to extort more spending cuts from the White House. He made it clear that they would refuse to raise the debt ceiling, unless the increase in the ceiling is matched by larger spending cuts. (It is not at all clear why that is a helpful or meaningful metric, even in the twisted minds of anti-government fanatics. Why not a two-for-one tradeoff? Or more? Why are the two even connected? But let us leave that aside for now.)

The same day, Republican Presidential nominee-to-be Mitt Romney tried to change the subject from gay marriage back to the economy by excoriating President Obama for the increase in deficits and debt during Obama's Presidency. “A prairie fire of debt is sweeping across Iowa and our nation, and every day we fail to act that fire gets closer to the homes and children we love," he said. To use a technical term: Yeeesh.

A few reactions:

(1) The Republicans still apparently believe that there is nothing wrong with threatening to destroy the full faith and credit of the United States, by bringing strongly into doubt whether the Congress will authorize the borrowing necessary to pay the obligations to which Congress itself has committed the country. One House Republican said that the notion of default is "a complete red herring," adding: "The only way that our sovereign debt would be compromised is if the president and Treasury chose not to pay it. The real jitters come from the fact that again we have racked up more debt in three years than in the previous 200. It’s unsustainable.”

What? This is, at best, an argument that the President can "prioritize" spending, so that he can violate every other legal obligation in the name of paying holders of the national debt (principal and interest, or just principal?). That argument is wrong, but at least it is coherent.

At worst, however, the quote above is gibberish. How bad are the "real jitters" in the financial markets, jitters that would supposedly send U.S. interest rates sky-high? So bad that the U.S. Treasury can now borrow long term at rates well below 2%, which is at or below 0% after adjusting for inflation. That is, savvy investors are giving money to the United States government and are gladly accepting in return money that will buy less than the principal could buy today. The Treasury is now effectively a safe deposit box, charging handling fees. Rational investors' willingness to do this is based on jitters, but not about the last 3 years of deficits.

By the way, the Member of Congress who uttered that word salad is not some mindless back-bencher. He was their pick to co-chair last year's failed "super-committee." You know, the guys who were specially selected for their expertise on deficits and debt!

(2) As a matter of my own careerism, I must say, "Thank you, Republicans!" I have never much wanted to be a talking head, but it worked out that way last summer. For a few weeks, I was heavily in demand. This was because I was one of the people calling on President Obama to deem the debt ceiling statute unenforceable, because it violates the Constitution. Now that Professor Dorf and I have written our article on that topic, to be published in Columbia Law Review in October, the timing could not be better. Expect to see us all over the place as this issue goes nuclear. Maybe everyone else should be saying, "Thanks a lot, Republicans." After one or two media appearances, I will probably feel the same way.

(3) Where is the payoff that President Obama's political advisors promised from his "pivot" to deficit reduction in 2010? The whole idea, remember, is that Obama was going to show his "responsibility" by being willing to discuss deficit reduction (in the midst of the worst economic downturn since the Great Depression, for crying out loud!), thus blunting Republicans' efforts to paint him as fiscally irresponsible. My argument then was that -- purely as a political matter -- I would rather defend, say, $20 trillion in debt to a country with 6% unemployment than $16 trillion in debt to a country with 8% unemployment (and the threat of an imminent return to recession).

And what are we seeing? Romney is not running on numbers. He is not saying: "Look, it would have been OK if the debt were only, say, $14 trillion, but because it is about to hit $16.4 trillion, Obama must be stopped." He is saying: "Debt bad. Deficits high. Obama's fault." There was no scenario in which Obama could blunt the political assault that any Republican was sure to mount, because the "grand compromise" approach will not work when any mindless politician can say: "Wow. Look at that huge number! I mean, trillions and trillions. Debt is too high."

There was no way to make the deficit go down in the short term, because the subsequent effect on the economy would have wiped out any deficit reductions; and certainly there was no way to make the debt go down in a few short years to a number that did not have the word "trillion" in it. If this is not political malpractice, what is?

(4) I actually accept the sincerity of Obama and other people who hold center-right views on economic policy. They believe that deficit reduction is very important to the long-run well-being of the country. They apparently believe that they are the only thing preventing the whole political system from throwing caution to the winds, with liberal Democrats spending like mad and Republicans cutting taxes like mad.

They are right that deficits can be too high. They are wrong that we are anywhere close to being in danger of spending too much right now -- on either counter-cyclical policies, or on long-run investments in public goods. They are even more wrong that the only choice is between mindless anti-deficit/debt rhetoric and fiscal insanity. And they are completely deranged in imagining that the next Republican administration would not turn all of the Democrats' compromises on spending into an excuse for further tax cuts, thus fueling another fake "deficit crisis."

Now, after years of hanging their heads in shame about deficits and spending, these self-styled political realists are stuck defending themselves against an accusation that everyone knew would be leveled against them. The accepted narrative says that Republicans can win by screaming about deficits and debt. Obama and his associates, following in the footsteps of Bill Clinton and all the others who claimed that it would be "political suicide" not to surrender on deficits, now find that they are presiding over a weak economy, with no politically salable defense against the charge that they are responsible for too much borrowing. (Yes, it was Bush's fault. But would you rather say that, or actually be operating in a political environment where your party had not given up any ability to defend deficit spending?)

For the country's sake, I hope that the Obama people can find ways to get voters to think about other issues. As it stands, however, Obama has simply made himself an easy target on deficits. He reinforced the narrative, leaving him with no room to maneuver.

What I Said ... What They Heard

noreply@blogger.com (Neil H. Buchanan) — Thu, 17 May 2012 19:01:00 +0000

-- Posted by Neil H. Buchanan

Let us start with the obvious: Humans have well-known limitations on their capacity for perceiving and processing information. Those limitations can make it especially challenging for those who try to offer nuanced or complicated arguments.

For example, litigators who represent defendants in criminal trials say that a jury has to have someone to blame. Even if the legal question before them is whether there is a reasonable doubt that the defendant committed the murder, it turns out that juries will often (usually?) convict, if the answer is "no" to the following question: Is there someone else who seems more likely to have committed the murder than this defendant? That the evidence against the defendant is weak, mutually inconsistent, or lacking credibility apparently matters little. "My client didn't do it," in jurors' minds, can only be supported by proving that "This other guy really did it."

The combined roles of teacher, scholar, and pundit offer similar (though less immediately consequential) lessons in dealing with twisted and incorrect responses from listeners and readers. Saying, "I do not like X," does not necessarily mean that "I dislike X," because it is also possible for one neither to like nor to dislike X. This is all covered in Logic 101 (or, at my undergraduate institution, a course called "The Nature of Argument"), but the burgeoning sub-fields of psychology that feed various behavioralist explanations of behavior -- often revealingly called "cognitive distortions" -- offer evidence that real life continues to offer endless examples of people making logical errors.

None of which is news, of course. Still, it is worth remembering the broader phenomenon when confronted with specific examples of unjustified logical leaps. For me, a good example of such an error is offered by reactions to my recent decision to buy a house. I made light of this error in my post discussing that decision, but the basic error is still rather simple and seductive. I have been saying, for quite some time: "It is not true that everyone should own their residence." What many people have heard me say is: "No one should own their residence."

Of course, there are strong and weak versions of what I said. The weak version is merely that every decision is fact-specific, and thus a choice between buying and renting should be driven by the facts. While weak, that statement still has some real power, because it denies the conventional wisdom that says that -- especially because of the deductibility of mortgage interest and property taxes -- owning a home is always the preferred choice.

The stronger version of my argument is that it is more likely than not that the better choice will be to rent rather than to own. The basis for that stronger claim (as I noted in my earlier post) is based on simple economic theory: supply and demand considerations are likely to make apples-to-apples own-versus-rent comparisons come out in favor of renting, rather than buying. Other factors might cause a specific situation to deviate from that global expectation, but the rebuttable presumption is that renting will dominate buying. My decision to buy a house was thus simply a case of the specific facts of a case leading to an unexpected conclusion.

Even so, I once received an email from a student that read as follows: "Professor Buchanan, I am going to be married this weekend, and I will be on my honeymoon next week. I hope that you don't have the same attitude about marriage as you do about home ownership, because I would like to be excused from class next week." Let us assume that this email was serious (which, based on other evidence not worth relating here, seems a safe assumption). What the student seems to have heard was that Professor Buchanan is against home ownership, which I never said. (In the next class meeting, without identifying the student, I admitted that I actually do have the same attitude about home ownership and marriage: Both can be great ideas, but there are plenty of reasons to suspect that social norms push far too many people into both home purchases and marriages that are bad ideas.)

So, is this merely a matter of my own inability to be clear? Maybe, but if so, I am not alone. In a blog post last summer, Paul Krugman wrote:

"I’m not the first person to notice this, but whenever you read conservatives trying to critique what they think the other side believes, you find them assuming that their opponents must be mirror images of themselves. The right believes that less government spending is always good, regardless of circumstances, so it assumes that the other side must always favor more government spending. The right says that deficits are always evil (unless they’re caused by tax cuts), so they assume that the center-left must favor deficits in all conditions."

Regarding deficits in particular, I certainly receive the same illogical feedback that Krugman identifies. Moreover, this is not merely the reactions of unthinking anti-government ideologues. In a talk last Fall at a good law school, I found myself compelled to clarify that I do think that deficits can be bad (and, in other circumstances, good). I added: "I'm not echoing Dick Cheney's infamous statement that 'Reagan proved deficits don't matter.' " What I had said was: "The deficits that we have been running since 2008 are not a long run problem." What they heard was: "Deficits are never a problem."

This tendency of people to make unjustified leaps motivated the title (and, of course, the content) of one of my law review articles (from 2006): "Is it Sometimes Good to Run Budget Deficits? If so, Should We Admit it (Out Loud)?" My question was posed as a non-universal statement: "sometimes," not "always." Even so, if the answer to the question was "yes" (and it is, as post-2006 events have demonstrated yet again), then it might still be dangerous to say so, if people were to hear me saying that deficits are not a problem at all, as a categorical (rather than a conditional) statement.

I ultimately concluded that it is worth taking the risk that people might misunderstand, because the consequences of acting as if deficits are always bad are so unambiguously awful. Even so, it is disheartening to be confronted over and over again with examples of how people jump to the "mirror image" argument.

Another of my law review articles (from 2009), "What Do We Owe Future Generations?" skeptically confronted the repeated-ad-nauseum assertion that we must reduce deficits "for the sake of our children and grandchildren." Looking at projections from the Social Security Administration (the same projections that are used to try to convince people that the Social Security system is going bankrupt), I showed that the income levels of people living in the US 75 years in the future are forecast to be from two to four times higher than today's (inflation-adjusted) income levels, on average. Further, I argued that the inter-generational lens is unhelpful in assessing what is ultimately a claim about distributive justice.

What I said, therefore, was: "Future generations are apparently going to be doing rather well (assuming that average income levels are what matter), so we need not form policy based on the ill-informed notion that we are impoverishing future generations." Even so, more than one colleague has said to me words to this effect: "But as you said, Neil, we shouldn't worry about future generations, right?"

In a way, that comment is at least partly correct: I did argue that inter-generational comparisons are not the right way to think about distributive justice, meaning that I arguably said that we should not worry about future generations qua future generations. Yet that is ultimately not the point, because I certainly never argued that we should not worry about how policies will affect people in the future. Moreover, some listeners seem to have heard me say that there is never anything to worry about, because of the forecasts that I cited. This would be like hearing someone say, "We don't need to turn the steering wheel to the right, because the road ahead is straight," and hearing, "We need to turn the steering wheel to the left" (or perhaps, "We don't need to steer at all").

Which brings me back to Krugman's reaction to this kind of logical error. Describing his conservative antagonists, Krugman wrote: "What seems beyond their intellectual range is the notion that other people might have subtler beliefs than their own. Keynesianism, in particular, is not about chanting 'big government good.' " While I certainly agree that liberal deviations from "Deficits bad!" are almost always met with "So you LOVE deficits, don't you?!" there is plenty of evidence that people are often making these errors for non-ideological reasons. My experiences with colleagues' comment re my work on future generations, for example, cannot be explained through a liberal/conservative framework, nor can the misreading of my comments about home ownership. There is something larger at work here.

So, what I just said was: "People often hear non-categorical statements, and incorrectly interpret them as categorical statements." I hesitate to imagine what some people will hear.

Wasteful Slaughter

noreply@blogger.com (Sherry F. Colb) — Wed, 16 May 2012 14:30:00 +0000

Posted by Sherry F. Colb

In my Verdict column for this week, I write about the presumed impact of "ag-gag" laws that aim to prevent and punish undercover investigation and exposure of conditions within animal agriculture. I analyze the complicated relationship between the concealment of what animals endure, and the consumption of the products that are taken from farmed animals. I suggest that one cannot attribute consumer ignorance entirely to industry efforts, and one must accordingly address not only consumers' ignorance about the realities of farmed animals but also consumers' desire to remain ignorant.

In this post, I want to take up a related issue that often arises in discussions that I and other vegans have with non-vegans and vegan-curious folks about the consumption of animal products besides flesh, such as eggs. What seems to bother some people most about the cruelty associated with egg production is the waste of animals' lives. Here, for example, is a composite of some conversations I have had:

NV (non-vegan): What's wrong with eating eggs? Is it because of conditions on factory farms? I eat my neighbors' backyard hens' eggs, so I don't support those conditions.

M (me): Factory farms are horrendous, of course, but all eggs involve tremendous cruelty and slaughter. Consider three features of all egg farming, regardless of who the farmer is.

First, when layer hens stop producing enough eggs to pay their way, they are sent to slaughter, usually at around two years old or earlier.

Second, layer hens have been bred to produce more than ten times as many eggs as their natural ancestors, the red jungle fowl. As a result, hens suffer brittle bones and other effects of calcium depletion, not to mention the painful conditions that occur because of their so frequently having to push eggs out of their bodies -- including uterine prolapse.

Third and finally, half of the "layer" chicks that hatch are male. Layer hens are bred for laying rather than for the grotesquely rapid growth for which their "broiler" relatives have been bred so they can be slaughtered when they are only seven weeks old. Male layers are thus useless to the industry. They are therefore "sexed" (separated from the females) after they hatch and then promptly killed, usually by suffocation or by being ground up alive in a macerator (grinder). This happens at the hatcheries that supply even your neighbor's backyard hens.

NV: That's disgusting! I was curious about what happened to all of the rooster chicks, but I figured they were kept for meat. Why don't they use them for meat? It's just wrong to treat them like garbage. It's such a waste.

I am somewhat heartened by conversations like this, because people do seem to find the wholesale killing of baby chicks disturbing. Learning about this aspect of egg production seems to clarify for non-vegans one of my reasons for avoiding eggs. The reason I say that I am only "somewhat heartened" however, is that the premise of their reaction to the revelation about what happens to male chicks, is that the problem is not that someone is killing these animals but that no one is subsequently eating them.

In other words, the suffering and death of such animals strikes many people as objectionable mainly because of the waste entailed, rather than because it is cruel and deprives living animals of their lives.

People do in fact feel compassion for the baby roosters, so it is not that they are indifferent to cruelty and simply want people to eat the baby animals' corpses. It is instead something about the combination of killing with waste that bothers many people. This combination resonates as well with what I recall were people's reactions to the mass killing of cows in England who were suspected of carrying Bovine Spongiform Encephalopathy (BSE or mad cow disease) -- people felt great sympathy for the cows, who were dying without anyone getting nourished as a result.

To get a sense of why I have found this reaction somewhat disconcerting, consider the following analogy. Two notorious convicted serial killers are Ted Bundy and Jeffrey Dahmer. Both of these men murdered their victims. Dahmer, however, also ate parts of his victims' remains. So far as I know, however, no one ever said "Well, Jeffrey Dahmer was pretty terrible, but at least he did not allow the victims' flesh to go to waste. At least he ate them, and you have to give him some credit for that."

Far from redeeming his behavior, Dahmer's decision to cannibalize his victims' remains seem to add a whole dimension of culpability to his violence.

Before leaving the topic of human cannibalism, however, we should consider a different scenario: that of the lifeboat. A group of men is lost at sea in a lifeboat and realizes that everyone will die of starvation if some do not resort to cannibalism. After coming to this conclusion, several of the men kill one of their number and then devour his remains. This scenario is undoubtedly unappetizing for most of us (even non-vegans), but -- by contrast to the case of Jeffrey Dahmer -- it likely elicits some sympathy and understanding in addition to the disgust. We can say of the killing on the lifeboat that it is, if not fully justified, at least excusable or substantially mitigated by the extreme attendant circumstances. What makes us regard this example so differently from that of a serial killer like Jeffrey Dahmer is that the starvation that prevailed on the lifeboat and the consequent need for nourishment, in whatever form, appears to make the killing necessary.

What does necessity have to do with anything? When a person kills a rooster and then eats his flesh, people perceive the killing as necessary, because it permitted the person to nourish himself. When a person kills a rooster and then throws his remains in the garbage instead, many people perceive the killing of the animal as wasteful and accordingly experience a sense of outrage on the rooster's behalf. There was no good reason for this animal to have to die, and it was therefore a wrongful killing. Killing the chicken was unnecessary.

I do understand the necessity argument, but I find it unpersuasive when applied to these facts. For just about everyone who consumes chickens and/or chickens' eggs, killing a rooster is unnecessary. Why? Because we do not need to eat chickens or eggs or other animals or animal products. Whether we throw the slaughtered rooster into the garbage or into an oven, we have accordingly killed an animal unnecessarily.

Many imagine that it is better to consume animals as food than as fur, for example, because we need to eat but we do not need to wear fur. Again, however, this analysis operates at a deceptively high level of generality. We do need to eat, of course, but we do not need to eat animals or their reproductive secretions any more than we need to eat human flesh. Accordingly, when we do eat those things instead of the bountiful and delicious plant-based foods that we could be eating instead, we inflict needless, wasteful suffering and death on innocent, sentient animals.

To return to the cannibalism analogy, when we eat animal products, we are for more like Jeffrey Dahmer than we are like the men on the lifeboat. The latter have no alternative to violence if they are to meet their need for nourishment. We, by contrast, have a choice.

Free Speech, Animals and Pornography

noreply@blogger.com (Michael C. Dorf) — Tue, 15 May 2012 04:30:00 +0000

By Mike Dorf

Tomorrow (Wed., May 16), I'll be a panelist at a UCLA Law School conference, Animals and the Law: Multiple Perspectives. The conference is free and open to the public. Here I'll preview my prepared remarks for the panel on which I'll be speaking, First Amendment: Implications for Animals and Animal Law. The other panelists are Claudia Haupt of G.W. Law School and Seth Kreimer of Penn Law School. DoL contributor and my fellow Cornell Law Professor Sherry Colb will be moderating. What follows is a rough summary of where I plan to go in my remarks.

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Assessing the implications of the First Amendment for animals and animal law is somewhat difficult because we have relatively few data points, but the main materials are not especially encouraging. On one hand, two years ago, in United States v. Stevens, the Supreme Court invalidated a federal law--enacted in response to so-called "crush videos"--that criminalized commercial creation, sale or possession of depictions of illegal cruelty to live animals. On the other hand, the federal Animal Enterprise Terrorism Act (AETA) and state "Ag Gag" laws forbidding undercover access to facilities that exploit and kill animals, make it challenging for animal rights and animal welfare activists to uncover and expose practices that, if widely depicted and discussed, could be the catalyst for change. Taken together, these authorities suggest that the First Amendment will shield those who want to harm animals but not those who want to protect animals.

But that dismal juxtaposition may be too facile. Although I believe the Stevens opinion is far from ideal, it does suggest that a sufficiently narrowly drawn law could forbid crush videos. Congress took the hint when, in the wake of Stevens, it enacted (and President Obama signed) the Animal Crush Video Protection Act of 2010, which forbids the deliberate creation or distribution in interstate commerce of obscene crush videos.

Meanwhile, on the other side, there are serious questions about the constitutionality of the AETA and Ag Gag laws. The AETA is currently the object of a facial challenge by animal rights and animal welfare activists asserting that it is unconstitutionally overbroad and vague, insofar as it applies to, and/or chills, constitutionally protected protest. The government responds in a motion to dismiss that the activists lack standing and that, in any event, AETA does not apply to them because of its rule of construction, which advises that the Act does not "prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution." The plaintiffs in turn reply that such a provision cannot save a facially unconstitutional law, because if it could, Congress could insulate any law from a constitutional challenge by appending the boilerplate caveat that the law should be construed constitutionally. The district court hears oral argument on the government's motion to dismiss later today.

Regardless of how the courts ultimately rule on the validity of the AETA, it is clear that the animal exploitation industries and their allies in government are determined to use legal restrictions to disrupt the efforts of animal rights and animal welfare activists to uncover and publicize their practices. Dara Lovitz's book, Muzzling a Movement, provides fairly extensive documentation.

Does the law, as constrained by the First Amendment, permit the animal rights and animal welfare movements to be muzzled? The leading case appears to be the Fourth Circuit's 1999 ruling in Food Lion Inc. v. Capital Cities/ABC. Although limiting the damages available in that case, the court upheld the application of state laws that forbade undercover reporters from posing as employees to gain access to a supermarket for the purpose of discovering and publicizing its unsanitary practices. The Fourth Circuit applied Supreme Court precedent that authorizes the application to reporters (and other researchers) of general property, contract, and tort laws, so long as the press is not treated worse than other members of the public. Such laws can be powerful tools in suppressing the sorts of undercover investigation that have heretofore been used to call attention to how animal products are made.

Accordingly, it appears that the First Amendment will likely be interpreted to permit laws that substantially impede the efforts of animal rights and animal welfare advocates to expose and publicize practices in the animal exploitation industries.

Thus, perhaps my dismal assessment was right after all. The 2010 crush video law will do very little for animals--and might even be counterproductive: As both Professor Colb and I have noted, a statute that forbids crush videos to satisfy sexual appetites even as the law permits the slaughter of billions of animals to satisfy gustatory appetites, sends the signal that the latter appetites--which are far more common and thus cause far more animal suffering--are acceptable. (Gary Francione, who will be speaking on a different panel at the conference, previously made the same point about Michael Vick.) Thus, the fact that First Amendment law might permit the enforcement of the 2010 crush video law is worth precious little to the animal rights and welfare movements.

Meanwhile, my analysis of Food Lion suggests that properly drawn Ag Gag laws and either AETA or a somewhat narrower version of AETA (in the event the challenge to the current law succeeds), could do real damage to activists' ability to uncover new documentation of how animal products are made. So it looks like heads-they-win-tails-we-lose for the animal rights/animal welfare movements when it comes to the First Amendment.

And yet I remain skeptical of the second half of that equation because I do not believe that there is a substantial need for more footage of cruelty to farmed animals and laboratory animals. Anyone with an internet connection who wants to see such footage can easily find and watch hours and hours of it already. Yes, I can imagine a time some years from now when people in the animal exploitation business say that the old videos no longer reflect the reality, but really, unless they allow genuine access to their operations, who would believe them?

Just about everybody who wants to believe them, that's who. People who consume animal products either don't care about what happens to the animals that are used to produce those products or they tell themselves that the animals are well treated, regardless of overwhelming evidence to the contrary.

In contemplating how advocates for animals might go about changing hearts and minds, I tend to think that the most useful First Amendment story is a roughly analogous one about sex equality and pornography. In the 1980s, the City of Indianapolis adopted a (non-criminal) pornography prohibition that defined pornography as

the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following: (1) Women are presented as sexual objects who enjoy pain or humiliation; or (2) Women are presented as sexual objects who experience sexual pleasure in being raped; or (3) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or (4) Women are presented as being penetrated by objects or animals; or (5) Women are presented in scenarios of degradation, injury abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or (6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display.

The U.S. Court of Appeals for the 7th Circuit struck down this ordinance in the Hudnut case, and the Supreme Court summarily affirmed that ruling on appeal. I haven't the space here to do the ordinance or the decision striking it down justice, so I'll simply focus on one salient feature of the case. Catharine MacKinnon, who was a lead author of the Indianapolis ordinance, argued that pornography "works" by associating the notion that women are sexual objects with sexual pleasure, thus bypassing the reasoning brain and appealing to the groin. The appeals court rejected this argument even as it accepted the premise arguendo; much protected speech works by appealing to sub-rational faculties, the court noted.

For present purposes, I'd like to bracket a number of interesting questions about how the First Amendment does, and should be understood to, limit regulation of pornography and obscenity. Instead, I want to focus on the psychological core of MacKinnon's insight: That men who are conditioned by sexual pleasure to believe in the subordination of women are unlikely to be deprogrammed out of that disposition by mere arguments.

One can make a parallel point about subordination of non-human animals: People who are conditioned to believe that the killing and exploitation of non-human animals is both normal and necessary by their nearly-constant consumption and other use of animal products, will not be very receptive to arguments that their behavior is wrong, even if those arguments include graphic video images of animals suffering. They will tell themselves that the videos are unrepresentative of the places from which their own food comes or they will simply tune out. The point is not that people who enjoy eating meat, eggs and cheese are bad, any more than that men who are sexually aroused by images of naked "[w]omen . . . presented as sexual objects who enjoy . . . humiliation" are bad. Rather, in both instances, the target audience will simply be resistant to messages that aim to change their behavior so long as their existing attitudes are strongly reinforced by experiences of pleasure--whether sexual or gustatory.

Hudnut reads the First Amendment to mean that lawmakers may not rely on the causal role of pornography in reinforcing sexist attitudes as a ground for prohibiting it. To paraphrase Justice Brandeis in the Whitney case, that leaves open the fitting remedy of speech that undermines such attitudes. One version of the feminist case against pornography would say that this is an impossibility because pornography inherently objectifies women. But note that the Indianapolis ordinance in Hudnut itself did not rest on that assumption; the ordinance specifically targeted violent and humiliating erotica, not all erotica. And certainly some self-described "third-wave" feminists have embraced the possibility of erotica that respects female agency.

Who has the better of this argument is not my concern here. I simply raise the issue to note that there is an open question about whether there is such a thing as pro-equality erotica that could be produced to compete with anti-equality pornography on a level playing field of speech that appeals to the sub-rational libido.

Whatever the answer to that question, animal rights activists find themselves in an unambiguous position, for we do have a means of competing in the appeal to the stomach: The creation, dissemination, and promotion of appetizing vegan food and attractive alternatives to wool, leather and other animal-based clothing. So long as a majority of the public regard such alternatives as unrealistic, they will resist messages aimed at inspiring them to change their behavior or to support animal welfare laws that do much more than provide marketing opportunities for the purveyors of "happy meat" and "cage-free eggs."

There are First Amendment issues raised by the activities in which I believe the animal rights movement ought to be most engaged, because the marketing of vegan products as healthy, tasty, and environmentally-friendly alternatives to animal products will sometimes involve drawing contrasts with animal products. And those contrasts can then lead to litigation brought by animal exploiters under state "food disparagement" laws. Even if the defendants ultimately prevail, the mere possibility of a lawsuit can exert a substantial chilling effect. For example, Oprah Winfrey ultimately prevailed against charges by Texas cattlemen that she had defamed their product, but since then she has been reticent on the subject of beef.

Food defamation laws are vulnerable to attack under the relatively expansive protection for free speech we see in the line of cases descended from NY Times v. Sullivan. Corporations like McDonald's ought to count as the sorts of "public figures" that must prove "actual malice" (defined as reckless disregard for the truth) in order to prevail in defamation actions. Yet state food disparagement laws typically allow liability on a lesser showing, thereby making it much harder for a defendant to prevail on a motion to dismiss.

It's worth noting that the European Court of Human Rights ruled in 2005 that liability to McDonald's for defamation under UK law was inconsistent with the European Convention on Human Rights. Although the ECHR rooted its holding in the procedural unfairness to the defendants--two volunteer leafletters for Greenpeace--the opinion grounded some of the procedural arguments in the Convention's protection for freedom of expression. European free speech law generally provides less protection against defamation than does U.S. First Amendment law, so the outcome in the ECHR suggests that the prospects for a challenge to state food disparagement laws in the U.S. Supreme Court are reasonably good.

Accordingly, if I were the head of the law division of an animal rights advocacy organization, I would devote a substantial portion of my budget to challenging food disparagement laws--and thus to ensuring the ability of activists to effectively promote vegan alternatives to animal products. Doing so, it strikes me, would fulfill what the late William Kunstler described as the principal function of a cause lawyer: Not to change the world through law but to provide legal protection for the activists who aim to change the world directly.

Bully for Whom?

noreply@blogger.com (Michael C. Dorf) — Mon, 14 May 2012 04:30:00 +0000

By Mike Dorf

I tend to share the view of those commentators who argue that it should not count for too much that Mitt Romney was at least an occasional bully in high school. Although Charles Blow made a fair point about the inadequacy of Romney's apology, politicians are constantly making non-apology apologies ("mistakes were made"; "I'm sorry if anyone was offended"; etc.) To my mind, Andy Borowitz best captured the heart of the issue, satirically attributing the following sentiment to Romney: Don't "judge me as the teenager who bullied one gay boy, but rather as the adult who fired thousands of people."

Recognizing that Romney's adolescent behavior need not count for much in current politics, it nonetheless provides a useful occasion for thinking about whether and how much things have changed. I'll do so through a couple of personal anecdotes. I'm younger than Romney, so the events I describe occurred in elementary school in the early to mid-1970s, rather than high school in the mid-1960s, but it strikes me that the key social changes have occurred more recently still, so my experience is probably not all that different from Romney's.

(1) One day during recess, I was part of a group of boys playing dodgeball, when a few of our number started chanting "Peter is a faggot" repeatedly. I didn't know what a "faggot" was, so I asked an older friend, who explained it to me. I was right around the age when boys begin to transition out of thinking that girls have cooties, so the whole idea of sexual attraction of any sort was new to me. I was doubly dubious of the chant: First, I found the very idea of homosexuality confusing; and second, I thought it peculiar that Peter in particular might be gay. He was a big kid who wasn't usually the object of bullying and somehow in a few brief seconds, I absorbed the standard stereotypes about gay boys and men. I don't recall whether I participated in the chant, but I certainly did nothing to object to it. Thinking back on the incident now, I do not recall any adult intervening on any basis: either to object to the bullying or the homophobia.

(2) Bullying more generally was accommodated in my elementary school. Around the same time as the incident with the boy I'm calling Peter, there was an ongoing saga with another boy, who was more broadly unpopular. I'll call him "David." I can't now recall why we found David annoying, but part of the tormenting of David revolved around the fact that he suffered from impetigo. He had a red rash on his face around his mouth, and often licked at the infected area, perhaps because it itched, or perhaps simply as a kind of nervous habit, but whatever his reason, the licking exacerbated the infection. The rest of us took this as a sign that David's affliction was self-induced and we teased and shunned him as a result.

A few of David's tormentors went further. On a daily basis, they would beat David up. I use the term "beat up" because that's what I remember, but I now realize what a vague term that is. I know they used enough force to hurt David, but not enough to break bones or otherwise require hospitalization. Still, it was the sort of thing which, if done by an adult, would warrant a criminal conviction.

The teacher and other staff broke up fights that occurred on school grounds so David received his beatings on his way home from school. After about a month of these beatings, David must have complained to the teacher that some of his classmates were attacking him. The teacher devised a solution that, in retrospect, strikes me as incredible: Each day, she would dismiss David ten minutes earlier than the rest of the class. That way, he had a sufficient head start so that he could run home without his tormentors having a chance to catch up and attack him. This "solution" went on for the rest of the school year. Really. I'm not making any of this up. It's possible I've remembered a few details imperfectly but I'm very confident that the story is broadly accurate.

* * *

What to make of these incidents?

To begin, I do not find credible Romney's claim that picking on a boy with long hair or shouting "atta girl" when a closeted gay student spoke in class were not homophobic. It's possible that Romney doesn't remember his motivation, but homophobia was simply part of the air that children breathed in those days. At no point during my primary or secondary education did any authority figure ever say anything remotely like "you shouldn't pick on someone because of his or her sexual orientation." And I finished high school in 1982, seventeen years after Romney did.

Much has clearly changed since 1982 (and certainly since 1965). Still, there are many places in the U.S. where LGBT youth are teased and much worse. The whole premise of the It Gets Better Project is that for thousands of young people, it needs to get a lot better.

Likewise with bullying more generally. I cannot imagine that a teacher at a decent school today would come up with the solution of dismissing a bullied child ten minutes early so he could outrun his attackers. Moreover, there are anti-bullying campaigns in schools and beyond, including the one associated with the film "Bully." As the film portrays, however, bullying remains widespread.

Mitt Romney need not have his high school behavior held against him. After all, this is a country in which not all that long ago a Congressman said with a straight face that adultery he committed at the age of 41 was a "youthful indiscretion." But by calling his past behavior "hijinks" and "dumb things," and by issuing a non-apology apology, Romney missed an opportunity to say something important about homophobia and bullying.

How High Would the Cliff Have to Be, Before the Republicans Would Stop Hitting the Accelerator?

noreply@blogger.com (Neil H. Buchanan) — Fri, 11 May 2012 21:17:00 +0000

-- Posted by Neil H. Buchanan

In my Verdict column this week, I offer the second installment of my "What Would Happen Under a President Romney?" series, which I launched two weeks ago (Verdict column here, associated Dorf on Law post here). In this week's episode, I explain again why Romney would do whatever the radical base of the Republican Party might tell him to do. This is especially true regarding budget policy, which is the focus of the column, both because of current Republicans' seething hatred of government spending, and because budget policies cannot (within some limits) be filibustered. They care more, and they are less constrained, when it comes to spending and taxing.

My prediction is that the Republicans (with Romney meekly in tow) would -- if they had the opportunity -- do anything they could to cut spending. I describe Paul Ryan's (dishonest) budget proposals, and how they would be disastrous for the economy. Pointing out that the Republicans in Congress were apparently willing to drive the economy off the cliff last summer, during the contrived Debt Ceiling controversy, I conclude that an unfettered Republican Party would pass Ryan's proposals and quickly add to his spending cuts. There really is nothing in their rhetoric that tells us that they have a stopping point for cutting non-defense spending. We might really see the "shrink the government until it can be drowned in a bathtub" scenario played out.

That is certainly one possibility. Another possibility is that something would stop the Republicans from wreaking such damage on the economy, notwithstanding their rhetorical commitments to cut, cut, cut government spending. What would that something be? The most obvious answer is political survival. Politicians who think they are doing something important while in office (along with politicians who are simply addicted to power, as well as those who have no better way to earn a living) do not want to lose elections. Would the Republicans not stop, once it became clear (yet again) that Keynes was right, and the U.S. economy was hurtling past Europe's on the way to the bottom of a bottomless pit? Would the fear of punishment at the ballot box not be enough to temper their excesses?

I offer two thoughts on that question in the Verdict column, and I will offer a few more here. First, I point out that there is nothing particularly awful about being voted out of office when the economy is tanking, because it is then possible to blame the other side for presiding over a bad economy. (See 2008 et seq.) Second, there is no guarantee that the Republicans would be voted out of office in 2014 and 2016, even if the economy is terrible, because Republicans are doing everything possible to make their incumbents untouchable.

It is also worth remembering that the most radical segment of the Republican caucus in Congress is its first-termers. These people show every sign of believing that they won their seats because they are brilliant politicians with a persuasive message. In fact, of course, they simply rode an anti-in-party wave in 2010, abetted by a very weak economy and a Democratic Party that was afraid of its own shadow (even more than usual).

Even so, these new Republican Members of Congress suffer from a version of Jim Hightower's famous put-down of George H. W. Bush: "He was born on third base, and he thinks he hit a triple." Usually, it is safe to assume that office holders are good at one thing: becoming office holders. In the case of the Class of 2010, we cannot even say that much. They just happened to be around when the going got good. This means that there is a large group of Republicans in Congress who simply think they are political geniuses, and thus bullet-proof.

Yet these first-termers are still not a majority. Will their elders not rein them in? Would, for example, Mitch McConnell not see the writing on the wall, knowing that a 20% unemployment rate would overwhelm even the most Gerrymandered incumbent Republican? Maybe, but there is still reason to doubt this. There is no evidence that the old guys are still running the show. McConnell opposed the election of Rand Paul in 2010, which ought to have meant something, given that Paul was running for the Senate in McConnell's home state. When Kentucky Republicans refused to listen to McConnell, he simply became a puppet.

What really seems to matter is not whether the senior Republicans would balk, but whether the Koch brothers (and all the anonymous backers who have financed the radical turn in the Republican Party) will ever reach the point where they fear that they have gone too far. These guys, to say the least, seem not to be especially concerned about the fallout from their actions. Moreover, they certainly do not care if their puppets lose a few seats and have their careers ruined. The real powers are in this for the long haul, with the apparent goal of crushing dissent from plutocracy once and for all.

Finally, there is little evidence that even the more pronounced failures of austerity in Europe are causing any rethinking over there. The usual suspects are red-baiting Hollande and mocking him (as The Economist did) for "actually believing" that society should be made fairer. Prime Minister Cameron is not taking his UK government in a new direction, despite the horrible failures of his policies. The European Central Bank, the German government, and all of their enablers are unimpressed by the results of the French and Greek elections.

And do not forget that the Europeans generally are not acting from the same fire-breathing sense of holy mission that drives the people here (both the members of Congress, and the money men). If European leaders can stare at 20-plus percent unemployment in country after country -- and 50-plus percent youth unemployment -- without blinking, why should we imagine that it would be different here?

Having said all that, however, I cannot help but maintain some gut feeling that they just would not be that crazy. As the unemployment rate climbed to 10%, 12%, 15%, and upward, would they not have to change direction? We can hope so, but we cannot merely assume that everything will turn out well this time, simply because things have not gotten too far out of hand so far. Thrill-seekers can always justify their next big risk, by pointing out that they have not died yet. That does not make them immortal. Neither is the global economy -- or democracy.

Evolved

noreply@blogger.com (Neil H. Buchanan) — Thu, 10 May 2012 18:09:00 +0000

-- Posted by Neil H. Buchanan

I have deliberately not yet read the many editorials and commentary discussing President Obama's endorsement of gay marriage . I have seen a clip of his interview, and I have read the first part of the news article in today's New York Times. I respect the opinions of the editorial board of the Times, as well as others who have surely weighed in by now. But I did not want my reaction to be influenced by others' reactions. As many readers of Dorf on Law know, this issue is personal for me.
A little more than ten months ago, after the New York legislature passed (and Governor Andrew Cuomo signed) a law legalizing gay marriage in the State of New York, both Professor Dorf and I wrote celebratory posts on this blog. (Dorf here, Buchanan here) In the final paragraph, I wrote: "The tide of history is clear. Even Obama's 'evolution' will be complete sometime soon. There will be more fits and starts, but there is no going back." And here we are. My home state of Maryland has joined the growing list of states that have legalized gay marriage, and now the President is finally on board.

After learning about Obama's announcement, my first thoughts were about political consequences and tactics. Although I might share a few thoughts along those lines in future posts, I think that it is important today to set aside politics, and simply to marvel at what has happened. The pace of change on gay rights issues has been nothing short of astonishing. This is a moment of genuine historic importance. No matter the path to this moment, the President of the United States is now back on the right side of history.

Although the comment that I quoted above from my June 2011 post was intended to be a dig at Obama, I have to say that I completely understand the notion of "evolving" on this issue. Surely, everyone -- even the most committed gay rights activists -- has had some moments of ambivalence about gay marriage. Many people must have, at one point or another, questioned whether civil unions were really good enough. A letter in the NYT a few days ago repeated the "defining down" argument, in which government would simply stop calling any licensed relationship a "marriage." My first thought was, "Man, that is so five years ago!" Still, at some point, I found that argument appealing. Until I evolved.

We have all probably suspected that the President had already evolved, and that he was simply not ready to take the risk of publicly supporting gay marriage. There is surely much to that suspicion. Even so, given that everyone takes their own time to reach the right outcome, it would be churlish to condemn someone for not being in the vanguard. This was a huge moment, and the consequences of Obama's decision to endorse gay marriage were certainly more weighty than for almost anyone else. I was exasperated and impatient, but I honestly thought that I would be waiting for the President for many more years. This is a wonderful surprise.

That is not to say that there was not damage from waiting. Every day that people are denied their basic human rights, people are harmed. I am certain that, if my brother Kevin and his partner Gabriel had not been taken away from us by the scourge of AIDS, they would be married today. Had Gabriel and Kevin been of opposite sexes, they could have even chosen to marry in the shadow of impending death, which would have been deeply meaningful to them and to the people who loved them. Straight couples facing tragedy have always been allowed to do that. That Kevin and Gabriel could not is a harm that can never be rectified.

Past errors, however, have meaning if they lead to enlightened change. We honor those who could not enjoy these civil rights breakthroughs by recognizing how much they lost while waiting for the world to wake up. President Obama's evolution is complete. Much of the world is still lagging. But there is no going back.

The Uncomfortable Question of Who Counts as a Member of a Minority Group

noreply@blogger.com (Michael C. Dorf) — Wed, 09 May 2012 10:00:00 +0000

By Mike Dorf

My latest Verdict column wades into the controversy over Elizabeth Warren's past claim to be part Native American. (For a useful summary of the blawg coverage of this issue, click here.) My conclusion? That the issue is good for the Brown campaign because affirmative action is a useful wedge to divide minority voters from working class and middle class white voters. In the course of explaining how the controversy is really about affirmative action, I mention some common arguments both for and against affirmative action. One of the arguments against is that affirmative action utilizes a two-wrongs-make-a-right logic. Here I want to expand on that theme and also subject it to a little critical analysis.

The Warren controversy highlights the difficulty of deciding whether someone "counts" for purposes of entitling that person to whatever bonus he or she gets for being a member of the relevant group. And that determination can be uncomfortable. Even Supreme Court Justices now regarded as liberal or moderate have at one point taken note of the difficulty. In his dissent in the Fullilove case, Justice Stevens compared the method for determining eligibility for affirmative action benefits to Nazi race laws. Justice Kennedy quoted that language in his dissent in the 1990 Metro Broadcasting case, adding in a comparison to South African apartheid laws.

Yet it's relatively easy to distinguish these examples based on the uses to which the classifications were put. Nazi race laws were not appalling because they identified who was a Jew. They were appalling because, for the Nazis, identifying Jews was the first step to murdering Jews. Likewise, apartheid South Africa obsessed about degrees of whiteness, blackness, and colored-ness because of the legal privileges and disabilities that went with those statuses. Once Justice Stevens had migrated from the center-right of the Court to its left, he saw this important distinction, stating in his 1995 dissent in the Adarand case that such comparisons "disregard the difference between a 'No Trespassing' sign and a welcome mat." No rational person thinks that the classifications appearing in programs of affirmative action in higher education are a prelude to genocide or apartheid.

But even if the Nazi and South African comparisons are unfair, there remains something inherently troublesome about the government (or powerful private actors) trying to figure out whether someone is Black enough, Latino enough, or Native enough to qualify for an affirmative action program. Why? I think it's because doing so reminds us of why we object to racial and ethnic discrimination in the first place: It renders critical what should be an irrelevant criterion. If we're not even sure whether someone is African American, Latino, or Native American, then why, we find ourselves asking, should we be distributing various benefits based on that status?

There are answers to that question, of course, but I think that even most on-net supporters of affirmative action (like myself) are at least somewhat uncomfortable with the "who counts" inquiry. For one thing, it tends to pull apart different justifications for affirmative action. If we are interested in intellectual diversity, then someone who strongly identifies with a particular group should "count" more than someone who doesn't, even if the strong identifier is less connected to the group as a matter of genetics. By contrast, if we are concerned about role models or in combating stereotypes, then it matters whether someone will be clearly identifiable as a member of the relevant group.

Perhaps the "who counts" question is more or less problematic depending on the use to which it is put. Even opponents of affirmative action will have to engage in some determinations of "who counts," at least for the purpose of detecting old-fashioned discrimination. Suppose that a white plaintiff sues his employer claiming that he was passed up for a promotion in favor of a less qualified African American candidate. In order to make out a prima facie case, the plaintiff will need to establish his own race and the race of the candidate who received the promotion. That will not always be obvious.

But unless one wants to do away with antidiscrimination law itself, it is hard to see how one can avoid such "who counts" inquiries. (One might say that it doesn't matter what the promotion applicants' races were but whether the employer perceived them as belonging to different races, and acted on that basis, but as a practical matter, what the employer perceived will usually have to be proved by reference to the applicants' respective actual races, and so we'll be back to the "who counts" inquiry.)

Certainly it would go much too far to say that we ought to give up antidiscrimination law entirely because it requires certain classifications that are, in certain respects, reminiscent of classifications used by Nazi Germany and apartheid South Africa for wholly nefarious purposes. In the end, the discomfort that most of us feel when confronted with borderline cases--whether for affirmative action purposes or simply for antidiscrimination purposes--may just be part of the price we need to pay to build a more equal society.

Bin Laden is Dead, GM is Alive, and Joe Biden is Talking

noreply@blogger.com (Michael C. Dorf) — Tue, 08 May 2012 04:30:00 +0000

By Mike Dorf

Over the weekend Joe Biden went on Meet the Press and said (more or less) that he supports marriage equality, thus seemingly highlighting a difference of opinion between himself and President Obama, who supports civil unions and whose views on same-sex marriage are still "evolving." Truth be told, it's not entirely clear from the clip whether Biden was saying that he supports marriage equality as that term has come to be used or what is sometimes called marriage-in-all-but-name for same-sex couples, which is the Obama position. Here, watch for yourself.

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But it doesn't really matter what Biden actually said. The news story that came out of the interview was that Biden has come out for same-sex marriage, whereas the President isn't quite there yet. Taking that story at face value, it is at the very least bad messaging from the White House.

Why? Couldn't one make exactly the opposite case? After all, in August 2004, Dick Cheney said nearly exactly the same thing, thus taking a pro-same-sex marriage position despite President Bush's position (at the time) in favor of a constitutional amendment banning same-sex marriage. If a Republican VP could take that position during a re-election campaign eight years ago, surely a Democratic VP can take the same position now, no?

Maybe, but maybe not. Because Cheney has a lesbian daughter, it was relatively easy for voters who were trying to suss out the Bush administration's "real" position to discount his views as likely not reflective of his boss's views. By contrast, Biden has no equivalent personal stake and so voters might think that his unguarded statement is in some sense the "real" position of the Obama administration.

Of course, one must discount that contrast by what we might call the "Biden factor." This is Joe Biden, after all, the same guy who in 2008 answered a question about gun control by threatening to shoot his running mate. It's just not plausible to attribute everything that comes out of Joe Biden's mouth as connected to official policy in any coherent way.

Still, there's another important difference between Cheney and Biden. When Cheney took a more liberal position on marriage than Bush, he was outflanking his boss to the center. When Biden did so, he was outflanking his boss away from the center. That matters because Cheney's statement would have been read as reassuring swing voters who thought Bush's views too extreme, whereas Biden's statement has the opposite effect. Meanwhile, in highlighting the differences between himself and Bush, Cheney reassured the party base (here, marriage "traditionalists") that the guy at the top of the ticket was committed to their cause. By contrast, Biden's remark--and the subsequent effort by David Axelrod to distance President Obama from it--simply underscored for an already somewhat disaffected base that the President has been something of a laggard on this issue.

None of this should make a difference to voters who are well informed on this issue. People who care deeply about the marriage equality issue--whether for or against--have to know that Obama in a second term will do more for marriage equality than Romney in a first term (or ever). Truth be told, both men are probably comfortable with marriage equality, but the positions of the bases of their respective parties will mean that a Democrat will almost certainly get there first. (One can imagine a Nixon-to-China scenario in which a Republican President has the latitude to support same-sex marriage when a Democratic President wouldn't, but I don't think that's at all realistic over the next four years.)

So why does it matter what Biden said on the issue? To my mind, the damage to the Obama campaign from Biden's inadvertent honesty will occur at a higher level of generality. If the economy remains in its slow-to-modest-growth mode for the next six months, the election will come down to a choice between personalities. The fundamental personal case against Mitt Romney is that he is a hyper-ambitious chameleon with no core. The Romney campaign and its SuperPAC allies can only do so much to combat that image by denying it, because it is so clearly true. But what they can do is to neutralize the issue by trying to make the same charge stick against Obama. And anything that highlights Obama's clearly political calculation on the same-sex marriage issue makes that job easier.

Abbottabad Politics

noreply@blogger.com (Michael C. Dorf) — Mon, 07 May 2012 04:30:00 +0000

By Mike Dorf

In response to the Romney campaign's faux-outrage at the Obama campaign's suggestion that Romney might not have ordered the raid on Abbottabad that killed Osama bin Laden, the President's defenders have emphasized three main points.

(1) It's true. In 2007, Romney in fact said "it's not worth moving heaven and earth and spending billions of dollars just trying to catch one person." Thus we can presume that had Romney been President, he would not have redirected resources, as Obama did, to tracking bin Laden. Perhaps Romney would have ordered the Abbottabad raid if he were presented with the same intelligence that Obama received in 2011, but a President Romney never would have gotten that intelligence, because he wouldn't have ordered the massive manhunt in the first place.

(2) Are you on crack? That's the question posed by Jon Stewart to Republicans who accused the Obama Administration of politicizing a military response to 9/11, in light of, you know, nearly everything that happened under President Bush.

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(3) Jimmy Who? Romney has said that "even Jimmy Carter" would have ordered the raid on Abbottabad. As James Fallows noted in The Atlantic, that line was grossly unfair to Carter, but it was also false even accepting Romney's borderline defamatory premise that Carter was a wuss. Romney was implying that Obama was taking credit for what he was portraying as a tough choice, when in fact he made an easy choice. Yet as Peter Bergen notes in his new book Manhunt (reviewed here), the evidence that bin Laden was in fact in the Abbottabad compound was hardly overwhelming, and was seen by one key insider as less conclusive than the pre-Iraq War evidence that Saddam Hussein had WMDs. Moreover, the operation Obama ordered was quite risky. Accordingly, Obama's defenders say, the President made a gutsy call in ordering the raid. Even VP Biden apparently wouldn't have made the same call. Thus, in this view, Obama is entitled to take credit for the successful outcome.

What to make of all of this? With respect to (1), Romney's 2007 statement looks very much like the sardonic definition of a gaffe--i.e., an impolitic truth spoken by a politician. Obama's decision to target bin Laden was necessarily a decision to use resources for that purpose rather than some other purpose. He could have spent those billions and risked the same lives for some other military purpose, for example. Moreover, we will probably never know whether killing bin Laden was on net beneficial. The most trenchant question of the post-9/11 age remains the one that Donald Rumsfeld asked in his "snowflake": Whether we are killing more terrorists than we are inspiring. The same question can be asked about the killing of bin Laden.

As to point 2, of course Stewart is right that Republicans complaining about Obama's politicization of the bin Laden mission are ginormous hypocrites, but it's also true that Democrats who thought that Bush, Rudy Giuliani, and other Republicans unfairly politicized 9/11, should be uneasy about the Obama campaign's clear politicization of the bin Laden killing. Even if one doesn't have ethical qualms, the Obama-killed-Osama ad is bad politics in the same way that nearly everything that Mitt Romney says is bad politics: Because it's too obvious. The best way to score political points is by appearing not to be trying to do so.

Finally, point 3 raises an interesting question about how to evaluate decision making. Let's suppose that the best intelligence available ex ante indicated that there was a 50% chance that bin Laden was in the Abbottabad compound and also a 50% chance that the mission would succeed in killing or capturing bin Laden without substantial loss of American lives or a battle with Pakistani forces. Should we evaluate the mission ex ante or ex post? The Obama campaign seems to want to say that Obama should get credit for making a risky decision that paid off. But this strikes me as peculiar logic, because if credited, it means that the more reckless the decision was, the more credit Obama should get if it worked out okay. So if the ex ante odds of success were on the order of 1%, then Obama would be a much bigger hero for having made a crazy-risky decision that turned out well? That's nuts.

In truth, I suspect that Obama's people are trying to make two points that are in tension with one another: 1) that Obama showed tactical smarts by evaluating the evidence more accurately than some of his top advisers and confidantes; and 2) that Obama showed courage by taking a risk. But the smarter Obama was in seeing the ex ante odds of success as good, the less risky it was to order the raid. To be clear, I'm not making this point as a criticism of the decision itself. I just think the messaging is a bit unclear on whether we should be thankful to the President that he is a gambler or whether we should be thankful that he is a keen analyst of data that others find ambiguous.

Private and Public Bureaucracies: Home Ownership Edition

noreply@blogger.com (Neil H. Buchanan) — Fri, 04 May 2012 19:47:00 +0000

-- Posted by Neil H. Buchanan

[Note to readers: This post begins with an anecdote that I thought was the basis for a Dorf on Law post that I wrote two years ago (roughly). I have not, however, been able to find that post in the archive, making me think that I might have imagined writing that earlier post. In any case, if the story sounds familiar to some of you, I assure you that you are not alone.]

In 2009, I received a notice from the New York State government, warning me that my state income tax delinquency from 2004 was about to be referred to a collection agency. Any such notice will make a person's heart skip a beat, of course. In my case, however, the initial fear quickly gave way to confusion. I had not lived in New York in 2004, so I could not imagine how I ended up with a tax bill from the state.

My next thought was that fixing the problem would be absurdly time-consuming and frustrating. Even getting in touch with a human being would be difficult, I thought, to say nothing of being lucky enough to find someone who might be helpful. (My opinion of the New York State government has always been especially low.) I imagined the worst kind of bureaucratic nightmare, with my credit rating ending up in the trash, and the state unwilling to give up on a bogus tax bill. I braced myself for a long, maddening fight.

To my surprise, however, I did find a helpful person, who was willing to speak with me right away. The problem was simple and understandable. As part of its regular procedures, New York (like most states) checks IRS filings to find people who should have filed state tax returns. I had moved to New York in early 2005. When I filled out my 2004 Form 1040 in Spring 2005, I had entered my new New York City address on the form, so that my 2005 forms would be sent to that address. New York's auditing software noted that my 2004 federal forms included a New York address, which kicked in an automatic deficiency computation. By the time that this process had run (a few years, for no apparent reason), I had moved to DC. New York State only found me again in 2009, when I moved to Ithaca for my sabbatical. That is when they sent me the deficiency notice.

The solution was easy. I should send my full-year New Jersey state tax return from 2004 to the New York State tax department, to prove that I had not lived in New York during that year. Accordingly, I promptly sent in the appropriate copies and forms, and in short order, I received a letter from NYS canceling the tax delinquency. I was delighted, and life went on.

As I noted in yesterday's post, I recently purchased a house. I genuinely had not expected to be in the market for a new house, so I did not go through in advance the due diligence that one would normally hope to see from a borrower (checking one's credit rating for errors, etc.). But because I had done nothing that should affect my credit record, I proceeded on the assumption that my credit was pristine, and that financing would not be an issue.

Wrong. The NYS tax delinquency was still sitting on my credit reports, from all three national credit rating agencies. My mortgage originator (an extremely good guy, and one of the most helpful and hyper-competent service professionals I have ever met) told me that the reduced credit score would result in a mortgage interest rate 0.25% higher than it would otherwise be, which adds up to tens of thousands of dollars over the life of the loan. No problem, I told him. I have the letter from NYS verifying that the delinquency was erroneous. I faxed that letter to the mortgage originator. Problem solved.

Wrong again. The credit agencies did not accept the letter from New York State. Instead, they wanted a "stamped" letter. Not having access to a nearby New York State government office that could stamp a letter (because I live in Maryland, hundreds of miles away), and lacking the luxury of time, I had to find an alternative. Happily, the Albany clerk's office responded to a conference call from the coordinating credit agency, with me on the line. The clerk not only verified that I had no tax delinquency, but she pointed out that the erroneous delinquency had been "vacated," which meant that "it never should have been." That is, it was not a valid delinquency that had been paid off, but a mistake that had been erased. Now, everything would go forward.

Wrong yet again. The credit agencies refused to accept this evidence, and they all refused to change my credit score. They said that they would allow me to authorize the release by New York State of information to them, which they would then validate on their own. The Albany clerk then told me that the credit agencies had been told many times over the years that this is illegal. The mortgage originator (the good guy in this story, along with his amazing assistant) then tried to get the credit agencies to accept a new letter that had arrived in the meantime from New York, this one with a stamp. That satisfied two of the three credit agencies. Unfortunately, the third agency was not only unsatisfied, but it initiated a 30-day audit of my account.

With the closing on the house set for the next day, we were left in a difficult position. Fortunately, the mortgage originator was able to cobble together a temporary work-around that (while not entirely risk-free) will almost certainly allow me to end up where I should have been in the first place, with no extra money out of pocket, net of everything. As of this moment, we are a little less than a month away from knowing what will happen next.

A few thoughts:

(1) While it might appear that I wrote down the gory details of these events for my own therapeutic purposes, my real purpose is to contribute a datum to an ongoing discussion about the nature of bureaucracy. Because this is turning out well for me, there is no anger to work through here. Indeed, I found myself both amused and even pleased as the process unfolded, especially when I realized that I had a blog post in the making. (Talk about twisted priorities!)

(2) In addition to the heroic mortgage originator, the other "good guys" in this story are the New York State bureaucrats (whom I had feared so much). They were (both at the initial stage of making the delinquency go away, and in the various dealings with the credit agencies) both professional and helpful. They were genuinely fulfilling their role as public servants, while upholding important legal protections and procedures.

(3) The private credit agencies exhibited the worst kind of bureaucratic idiocy. The only similar experiences to which I can compare their bureaucratic intransigence are: (A) when I have had to resolve credit issues with cable TV companies, and (B) every single interaction that I ever endured with Harvard University's administration. There are unhelpful people everywhere, but the myth that public bureaucrats are somehow worse than private bureaucrats is surprisingly resistant to evidence.

(4) Upper-middle class people receive a lot of help, when a problem arises. Upper-middle class people who have law degrees receive even more help. Even without this odd problem with a phantom tax delinquency, the level of help that I received throughout the process was much better than anything I received when I was younger, buying less expensive houses, and not yet trained in the law. I shudder to think what happens to people who are not favored by the system.

Professor Buchanan Rejoins the Propertied Class

noreply@blogger.com (Neil H. Buchanan) — Thu, 03 May 2012 18:26:00 +0000

-- Posted by Neil H. Buchanan

Hypocrisy!! The State of Maryland recently registered a deed for fee simple ownership of land (on which a single-family home sits) to one Neil H. Buchanan. Granted, there are a dozen or so Neil Buchanan's in the world, including an English "Television presenter/producer, musician, guitarist, Actor" who once hosted a children's TV show called "Motormouth." There is also a mugshot of another Neil H. Buchanan here.

But there is no doubt that this deed was registered to the guy who teaches tax law at The George Washington University. How could this be?! Professor Buchanan has been on a years-long crusade to convince the world that individual home ownership is both individually risky and socially damaging. Of a countless number of posts on the subject, the most recent can be found here -- from only two months ago! He says that the mortgage interest deduction is a bad idea, that corporations should own single-family homes and rent them to families and individuals, and he offers other radical arguments that deny the importance of home ownership and the American Dream.

What is going on here?! First, yes, I closed on the purchase of a house last week. Second, no, I am not a hypocrite (at least, not in this regard). But, as Sen. Coburn so artlessly said of then-Judge Sonia Sotomayor, I "have a lot of 'splainin' to do." What gives?

If I had my way, we would never have developed the social norms that elevate the notion of individual home ownership into its current near-mythic status. People believe that home ownership is necessary to having stable neighborhoods, to promote financial stability, and so on. The problem is, it is all just not true.

Even if those positive social externalities were not imagined, however, the difference between owning and renting is, as an initial matter, simply a legal distinction. Especially for those with mortgages (who, as the saying goes, "are allowed to live in the house that the bank owns"), there is no fundamental difference between renting and owning. (Even for those without mortgages, the opportunity cost of buying a home with cash -- and thus holding that money out of other investments -- is the same as rent.) Everything else -- the conditions under which ouster is possible, and so on -- is part of the system of property law. Those legal differences are often of profound importance, but none of them need be connected to one type of occupancy and not another.

Nevertheless, our laws (certainly including the tax code) are consciously designed to encourage home ownership. Even if there need be no substantive difference between owning and renting, there certainly are many substantial differences under the current legal regime. Many people, therefore, argue that it is simply a matter of good financial planning for everyone to try to own their own home. In fact, a virtual sub-industry exists to convince people like my students (mid-2o's professionals) that they are not truly grown up unless they own a home.

One of the key arguments offered in defense of that absurd proposition is that the mortgage interest deduction is "the great middle-class tax break." In a way, that is a true statement, in that most people who itemize do so because they own homes. They reduce their tax bills by deducting their mortgage interest (and, under a different tax provision, their property taxes). The next step, however, is not true: Because of this tax break, middle-class people "throw away money" by paying rent to a landlord, rather than building equity in a house.

This is an empirical assertion, masquerading as a categorical truth. Even after taking into account the increased ownership stake that is part of each principal-and-interest monthly payment, and even after taking advantage of all tax breaks, it is still possible that renting is cheaper than owning. In fact, given that so many people are convinced that the better choice is always to own, the artificially reduced demand for rentals (which is the mirror image of the artificially increased demand for ownership) should systematically make renting cheaper than owning.

Before the recent financial crisis, we did not know how much damage could result from individual home ownership, in terms of the risks associated with a completely non-diversified portfolio. We now know that this, too, is a huge cost -- to both individuals and society -- of our obsession with home ownership. Foreclosures on a massive scale continue to haunt the economy.

But back to my new status as a homeowner. I have never told my students that there are no circumstances in which one should buy a home. The simple economic story that I told above -- like all simplistic economic tales -- depends on several unstated factors. The most important of these is that there are reasonably deep rental and purchase markets for similar homes. In many cases, that is not true. Once I had chosen the town in Maryland where I wanted to live, I learned that there were almost no rental homes available. There were simply no apples-to-apples comparisons between renting and owning.

That, however, did not make buying the only choice. Even an apples-to-broccoli comparison is meaningful, within limits. If I had learned that the few rental options lacked some features that I might desire (large yards, for example), then I could decide how much more I was willing to pay (net of everything, including tax breaks) for those features.

Here is where the story became more interesting, under the particular facts that I faced. The net cost of owning a 4-bedroom, 3-bath house, on a relatively large lot, within easy access of the DC Metro, was actually less than the cost of renting a 2-bedroom, 1-bath apartment in the same town. I saved money, on a monthly basis, by buying a bigger place. Did not see that coming.

Of course, that is not the whole story. My financial portfolio is now heavily tilted toward one big asset. I could lose big, depending upon when I sell. There could be a toxic waste leak in the next town, which could make my neighborhood uninhabitable. Bad things do happen. For a tenured, middle-aged guy who loves his job and his location, however, these risks are about as small as they can be.

I continue to believe that public policy -- and popular mythology -- should not push people into home ownership. I also know, however, that home ownership under the current rules makes sense for many people. (Marriage also makes sense for many people -- but not for everyone.) Yes, my financial well-being is now somewhat more tightly bound with policies that I personally oppose. That, however, is true of many policies. For example, under my ideal income tax system, people like me would pay more than we do today. There is no hypocrisy there.

In the main, one makes choices not on the basis of what the rules should be, but as they are. The average law school graduate should not feel pressured to buy a home. No one should. For many people, however, it will make sense to buy rather than rent. If I ever need to sell, I will be happy that such people exist.

Thoughts, Motives, and Intentions

noreply@blogger.com (Sherry F. Colb) — Wed, 02 May 2012 11:30:00 +0000

By Sherry Colb

In my Verdict column for this week, I discuss the necessary tension that pervades the relationship between our First Amendment freedom of speech and thought, on one hand, and the way in which we define and prove criminal conduct, on the other. It would in fact be quite difficult to imagine a criminal justice system that classified a defendant's state of mind as legally irrelevant.

In this post, I want to suggest that there is a profound distinction between our thoughts that we simply think or express in words and the motives and intentions that drive our behavior. That is, I would argue that the sort of thought that floats around in our heads is qualitatively a distinct phenomenon from the sort of thought that impels us to act. Intentions and motives, on this approach, are more than simply "thought plus action."

In considering this idea, I find myself thinking about the Harvard Implicit Association Test (I.A.T.) a test that anyone can take here and that will purportedly expose that person's true beliefs regarding race, sex, and other characteristics. The test is elegant in its simplicity. It asks the test-taker, by turns, to associate stereotype-consistent and stereotype-defying ideas and calculates whether he or she takes longer to draw the stereotype-defying associations. If you have have an easier time pairing a female item with a passive and home-oriented item, for example, than with an assertive and powerful item, then you may be harboring sexist biases.

I took the test a number of years ago and was delighted to learn that I do not harbor negative racial associations. But then I thought about how peculiar it was for me to imagine that an implicit association test, if I had scored differently on it, would have been able to say something significant about my belief system. It would undoubtedly be interesting to know whether I have an easier time associating stereotype-conforming pairs than stereotype-defying pairs. But the notion that a test-taker might actually "turn out" to be a racist or a sexist by virtue of how speedily he or she could draw associations strikes me as wrong and perhaps even pernicious.

Why pernicious? To be a racist, in my view, is to behave in a fashion that inflicts or attempts to inflict harm on others on account of race. To identify destructive stereotypes through an I.A.T. is most useful, it seems to me, in showing that such stereotypes pervade our society and will therefore likely infect interactions between people. A society, in other words, can offer a hostile environment for people in a racial or ethnic minority even if the individuals within that society are not themselves racist. I do not think that we gain anything, however, from informing particular individuals that they either do or do not harbor racial or sexual biases, based on their performance on the I.A.T.

What does any of this have to do with thought versus intentions and motives? Thoughts are the sorts of phenomena that show up on a measure like the I.A.T. They are unconscious associations that pervade our culture and have harmful effects both on the self-perception of the people whom they stereotype and on the interactions between members of the privileged minority or majority and members of historically oppressed groups. Intentions and motives, on the other hand, drive individual people to do things that help or harm others. They can, accordingly, evidence individual culpability.

If we want people to treat each other in a more enlightened fashion, I think that we ought to be focusing on encouraging people to examine and become mindful of their intentions and motivations when they act, rather than on their implicit associations. As in the First Amendment context, when it comes to free-floating ideas that people have, policy-makers might do best to avoid trying to shame people for those or otherwise regulate them.

I have no more reason to feel complacent or proud about having "passed" the I.A.T. than a peer has to feel guilty for having "failed" it. We ought to judge people's goodness by what they do and attempt to do, because actions rather than free-floating thoughts reflect the mental processes with the greatest potential for causing harm and, alternatively, transforming our world for the good.

Against Diplomatic Asylum--And Against the Supreme Court

noreply@blogger.com (Michael C. Dorf) — Tue, 01 May 2012 04:30:00 +0000

By Mike Dorf

When Chen Guangcheng presented himself to U.S. diplomats in China, he sparked a controversy that now threatens to become a crisis in Sino-U.S. relations. As I write this post, his whereabouts have not been publicly disclosed but he is under American protection in China. According to the latest news story, Chen is not seeking asylum in the U.S. However, in the past, individuals have from time to time sought asylum in embassies, consulates and other diplomatic missions. How should such applications be treated?

The core international law provision at stake is Article 33 of the U.N. Convention Relating to the Status of Refugees, which forbids "refoulement," i.e., the return of a refugee who is fleeing persecution to his country of origin. In 1993, in Sale v. Haitian Centers Council, Inc., the U.S. Supreme Court gave a narrow reading to Article 33 (which has been codified in federal statutes implementing the Convention). In that case, the Court upheld the government policy of intercepting Haitians on the high seas and sending them back to Haiti without first providing individualized determinations of refugee status. The majority reasoned that the Convention and the implementing legislation operated on the assumption that the non-refoulement duty only came into existence once the putative refugee had entered the sovereign territory of the country in which he or she sought asylum.

But might Haitian Centers Council therefore be invoked as authority in support of a right of non-refoulement at embassies and consulates? After all, a U.S. embassy or consulate in a foreign land is deemed U.S. territory. Accordingly, if Chen had sought asylum, would the converse of Haitian Centers Council have entitled him to a status determination and asylum if he could show a fear of persecution on treaty grounds?

To my mind, this gets matters quite backwards. Although there is something to the linguistic argument the Court made in Haitian Centers Council, as a functional matter it runs away from the core of the Convention, which embodies the principle that if someone manages to exit a country in which he alleges he fears persecution on Convention grounds, then he cannot be returned to that country unless his allegations are false. The filter that the Convention establishes to prevent countries from being overrun with refugees is a distinction between economic migrants--who often find themselves in truly desperate circumstances but are nonetheless unprotected by the Convention--and refugees fleeing persecution. Thus, I think Justice Blackmun, in his lone dissent in Haitian Centers Council, had the better of the argument: On its face, Article 33 lacks a territorial limit and there is insufficient reason to read one into it with respect to the high seas.

But embassies and consulates are (or should be) a different story. The basic obligation of Article 33 is an obligation not to return a putative refugee to her country of origin. However, a national of Country X seeking asylum in the embassy or consulate of Country Y in Country X is still in her country of origin and thus cannot be returned. To be sure, international law indulges the fiction that the embassy or consulate is the sovereign territory of sending Country Y, but this is only a fiction--as becomes clear, for example, if Country X expels the Country Y mission. Ultimate sovereignty remains with receiving Country X, but it facilitates the smooth conduct of diplomacy for both nations to treat the Y mission as though it were an extraterritorial extension of Y. (The Vienna Convention on Diplomatic Relations speaks of the "inviolability" of the diplomatic mission, rather than its sovereignty.)

It does not make much sense to treat the Y embassy or consulate in X as Y's territory for all purposes. And there are at least two reasons why it's a particularly bad idea to regard Y's embassy or consulate in X as subject to the non-refoulement obligation with respect to X's nationals. First, if Y does grant asylum to a national of X, X is under no obligation to grant that national safe conduct out of the country. Accordingly, asylum in the embassy could lead to a state of permanent limbo, in which the asylum seeker is entitled to stay in the embassy but not to leave the country.

Second, it is easy to see how the possibility of asylum in an embassy or consulate could lead to serious friction between the receiving country and the sending country. Of course, the grant of asylum to an X refugee who has managed to leave the country and find her way to country Y could also be a source of friction, but that event occurs far away from X. One could well imagine that the leaders of X would regard the granting of asylum by Y within the borders of X as a more hostile act. And that, in turn, could lead to a breakdown in diplomatic relations. If one thinks that rights-respecting nations have good reasons to maintain diplomatic relations with regimes that engage in rights violations, then it may not be possible to grant embassy or consulate asylum to the nationals of the rights-violating regime--at least not in the ordinary course of events.

Finally, I should be clear that nothing I have said here bears directly on the somewhat different circumstance in which a national of country X seeks asylum from country Y in country Y's embassy or consulate located in country Z.

Weed Tourism in Europe and the U.S.

noreply@blogger.com (Michael C. Dorf) — Mon, 30 Apr 2012 05:00:00 +0000

By Mike Dorf

Last week, a judge in the Netherlands rejected a challenge to the country's new ban on foreigners' entrance to Dutch "coffee shops," where marijuana has long been sold. Dutch citizens will still be able to visit coffee shops with a government-issued "weed pass." I haven't been able to find the actual opinion, but the news stories (e.g., here) report that the law was challenged as violating Dutch anti-discrimination law, and was upheld on the ground that it was justified to fight criminality associated with the international drug trade.

The coffee shop owners have indicated that they will appeal and the case could eventually end up before the European Court of Justice (ECJ) on the ground that it violates the provisions of the EU Treaties governing free movement of goods, services and persons. But if so, the ban will likely be upheld under reasoning along the lines of a December 2010 ECJ ruling that upheld a similar law that only applied in Maastricht. In that case, the ECJ said: 1) Marijuana is illegal under EU law; 2) it is also illegal under Dutch law but "tolerated" in coffee shops by the Dutch authorities, who reserve their enforcement resources for hard drugs; 3) therefore, the provisions of the treaty governing freedom of movement of goods do not apply, because the relevant good here is contraband; and 4) although there is a colorable argument that excluding foreigners from the coffee shops deprives them of the legal services there (provision of food and non-alcoholic beverages), the infringement on the free movement of services is incidental to the prohibition's target of illegal drug trafficking, and a proportional limit.

That all strikes me as plausible, but here I want to consider the issue as a matter of first principle, and then ask what implications it may have for the U.S., which has similar principles as a matter of interstate federalism. The basic principle of origin non-discrimination in a free trade union like the EU or the U.S. (both of which, especially the U.S., are much more than free trade unions, of course) says that a member unit shall not discriminate against commerce--whether persons, goods or services--simply on the basis of the country of origin. Putting aside exceptions and some important details, the basic principle under EU law as well as the parallel provisions in the U.S. (the dormant Commerce Clause, the Privileges and Immunities Clause of Article IV, and the Fourteenth Amendment), requires some scrutiny between the ends and means to ensure that the member unit doing the discriminating is really keeping out something harmful because of the special harms associated with travel or transit, rather than simply discriminating.

If we apply that principle, there is reason to doubt that the anti-crime justification for restricting weed passes to Dutch citizens should hold up. Certainly, the Dutch authorities could first try lesser, non-discriminatory, measures--such as ensuring that only personal-use quantities are sold, whether to Dutch citizens or foreigners. Moreover, critics argue that by cracking down on the coffee shops, Dutch authorities will not keep out foreigners seeking drugs, but simply relegate them to the more dangerous street trade.

Proportionality analysis under EU and Dutch law is structured a bit differently from the parallel inquiry under U.S. law but it's in the same broad family. So how would the case turn out in the U.S.? We don't have Dutch-style coffee shops but we do have a fair number of states that permit medical marijuana. Most (perhaps all?) of these states restrict its sale to in-state residents. Is that justifiable?

The issue may not arise in the current climate because of the federal prohibition on marijuana possession, including for medical purposes. Thus, any dormant Commerce Clause challenge to a state's reservation of medical marijuana permission to its own citizens would founder on the federal Controlled Substances Act, which was upheld by the Supreme Court as an exercise of congressional power under the non-dormant (waking?) Commerce Clause in the Raich case. Another way to put that point is that medical marijuana occupies roughly the same position in a state like California or Colorado as does marijuana in general in the Netherlands: It's banned by the larger political unit (the U.S. and the EU, respectively), but tolerated.

Suppose, however, that we imagine repeal of the federal marijuana prohibition. Now let's consider what would happen with two adjacent states with different laws. I'll take Vermont and New Hampshire. Vermont generally prohibits marijuana but permits it for medical use for state residents. New Hampshire prohibits it across the board. Suppose that an ailing citizen of New Hampshire who would be eligible for medical marijuana if she lived in Vermont, seeks but is denied a license by Vermont on the grounds that she resides in New Hampshire. Would that be permissible?

I tend to think not. Let's assume that, at least for constitutional purposes, the state's general interest in forbidding marijuana possession is valid. Then Vermont has an interest in ensuring the integrity of its licensing system to prevent recreational users masquerading as medical marijuana patients. But the state does not need to forbid out-of-staters from obtaining medical marijuana in order to vindicate that interest. States have an interest in keeping incompetent drivers off of their roads, but they vindicate that interest by requiring either an in-state driver's license for in-staters or an out-of-state license for out-of-staters. They could do the same for medical marijuana.

Now perhaps Vermont might worry that other states license medical marijuana users on less stringent criteria than Vermont does. That concern wouldn't apply to New Hampshireans, who are not licensed for medical marijuana use by their home state at all, but such an interest might be sufficient to require that anyone seeking to use medical marijuana in Vermont first seek and obtain a Vermont license. Even if so, Vermont would need to issue the license to a qualified New Hampshirean.

Suppose, however, that Vermont were to treat medical marijuana like driving: If you live in Vermont, you need a Vermont license; if you live in another state, you can get medical marijuana by showing your home state license. This works fine for driving because every state licenses drivers, but leaves our New Hampshirean out of luck. A Californian or Coloradan in Vermont could obtain medical marijuana by showing the license from his home state, but New Hampshireans cannot obtain licenses anywhere.

Would that regime survive? We could imagine that Vermont might justify it on the ground that it wants to avoid drawing people to the state simply for the purpose of getting medical marijuana. No one from San Francisco or Denver will travel to Montpelier just to get medical marijuana when they can get it at home, but someone from Concord well might. But does a state have a legitimate interest in preventing out-of-staters from visiting the state to take advantage of its laws?

Here too, I think the answer is no. Most of the Supreme Court cases in this area address the limits on a state's power to discourage out-of-staters from migrating to the state to become residents. E.g., in Saenz v. Roe the Court reaffirmed limits on a state's power to deny (or in that case, reduce) welfare benefits as a means of discouraging migration. But in the course of discussing the right to migrate, the Court also affirmed "the right to be treated as a welcome visitor." States have some authority to preserve state resources for state residents rather than visitors, but denying to an out-of-stater the right to purchase medical treatment that the state permits for its own citizens does not fit into that authority.

Whether the foregoing analysis might hold even under the current regime of federal prohibition is a separate question, but I don't think it's a slam-dunk. Saenz, after all, did not root the right to travel in the dormant Commerce Clause, and so it is at least possible to say that the federal Controlled Substances Act has no bearing on the right-to-travel analysis. In other words, perhaps the Constitution ought to be treated as presumptively forbidding discrimination against out-of-staters even with respect to illegal activity. That would be contrary to the ECJ approach in the Maastricht case, but so what? Certainly, if a state discriminated on the basis of race or sex with respect to medical marijuana licenses--even while marijuana was illegal under federal law--that would be a prima facie equal protection violation. Is it obvious that discrimination against out-of-staters is different from race or sex discrimination?

Of course, this could be a case of be-careful-what-you-wish-for. One could imagine that successful litigation requiring states that license medical marijuana to open themselves up to out-of-staters could lead to a backlash: either state-level repeal of medical marijuana laws even for in-staters or stepped-up federal enforcement of the Controlled Substances Act. And one wonders whether the same calculation should apply in the Netherlands: Perhaps coffee shop owners who push too hard to be able to serve tourists could end up losing the right to operate at all.

Reflections on the Arizona v. United States Oral Argument

noreply@blogger.com (Michael C. Dorf) — Fri, 27 Apr 2012 04:30:00 +0000

By Mike Dorf

On Wednesday, the Supreme Court heard oral argument in Arizona v. U.S. (Transcript and other important case docs here.) There has been much press coverage of the case already, so I'll raise a few offbeat observations.

The Chief Justice as Traffic Cop

During the oral argument, I noticed that something happened that seems to be happening with increasing frequency. Two Justices simultaneously started speaking and then CJ Roberts intervened to effectively "call on" one of them. In this instance (at pp 30-31 of the transcript), Justices Sotomayor and Alito both started asking a question, and so CJ Roberts called on Justice Alito. I recall (although haven't bothered to locate in the transcript) another instance during one of the Affordable Care Act arguments, when Justices Sotomayor and Ginsburg started at the same time, and CJ Roberts called on Justice Ginsburg. And I am pretty sure I've seen this happen other times in the last couple of years.

I don't recall CJ Rehnquist doing this sort of thing, although there are plenty of transcripts I haven't read, so it's possible he did. But assuming that this is a new practice under CJ Roberts, I wonder whether his colleagues voted him the authority to call on them? I tend to doubt it. I suspect that the Chief Justice has simply assumed (reasonably enough) that as the presiding Justice, he has the power to conduct the oral argument in an orderly fashion.

But then one might want to know what principle is the Chief Justice using to decide whom to call on. Seniority? Calling on the Justice who started the question first? Calling on the Justice who has been speaking rather than the one who appears to be interrupting the other Justice's line of questioning? Calling on the Justice who has spoken less during the particular oral argument, and thus whose "turn" it is? Just going on a gestalt "feel" that balances multiple factors--much in the way that I do when calling on a student volunteer when more than one has a hand up?

* * *

Two Substantive Points

As most readers probably know, at issue in Arizona v. U.S. is whether four provisions of Arizona's S.B. 1070 are preempted by federal law. (As a technical matter, the question is whether the laws are "probably" preempted, because the case comes to the SCOTUS from a motion for a preliminary injunction, but everyone expects the Justices to reach the preemption merits directly.) The provision that has gotten the most attention in the press and that the Justices spent more time discussing than any other provision is Section 2, which requires AZ state and local officers who have reasonable suspicion to believe that someone they have lawfully arrested, stopped or detained is unlawfully in the country, to make a reasonable attempt to determine that person's immigration status. Here I'll note two interesting questions about Section 2 that were raised but not fully explored during the oral argument.

1) SG Verrilli was having an understandably difficult time persuading the Court that Section 2 is preempted by federal law, in light of the fact that the federal government itself has established a procedure for answering questions about the immigration status of individuals detained by state and local officials. Justice Alito pushed on this point with an interesting hypothetical example. He asked the SG to imagine that S.B. 1070 had not been enacted but that "every law enforcement officer in Arizona saw things exactly the same way as the Arizona legislature. And so, without any direction from the legislature, they all took it upon themselves to make these inquiries every time they stopped somebody or arrested somebody. Would that be a violation of federal law?"

SG Verilli flatly answered that this would not be a violation of federal law, so long as there was no formal state policy that took away the discretion of the officers to follow federal policy directives. When pressed further by Justice Alito, the SG maintained that line, even if the individual officers continued to refuse to follow the federal directives. I was left puzzled about why that should be, and just as the SG seemed about to provide a fuller explanation answer, he was asked other questions by other Justices, and the argument was diverted.

Trying to fill in the gap, I think that what the SG might have been driving at was that if individual state and local officers spontaneously and independently settled on the approach that is mandated by Section 2, then we would not be faced with a policy that works in conjunction with the other policies to further Arizona's more restrictive immigration policy, which, taken as a whole, contradict the immigration enforcement priorities set by the federal government.

At least that's where I think the SG might have been going. But the foregoing answer has the disadvantage that it means that Section 2 would not be preempted if it were the entirety of S.B. 1070. Yet I don't read the federal government to be making that argument. Instead, I read the S.G. to be saying that each challenged provision of S.B. 1070 is independently preempted by federal law.

Accordingly, perhaps the SG should have answered Justice Alito's question by saying that federal preemption applies to state executive action no less than to state legislative action and that if the conduct of state and local officials--taken in the aggregate and whether or not coordinated--has the effect of undermining federal priorities, it is preempted. I'm not sure whether that would be a persuasive argument, but I do think it is at least plausible to suggest that there may be conduct which, if engaged in sporadically, is legal, but when engaged in consistently, is illegal. The SG also could have fought the hypo by saying that if every state and local official took this stance, we would have excellent grounds for inferring that, despite what they said, they were in fact carrying out state policy.

2) Another line of questioning concerned whether an executive policy of exercising prosecutorial discretion in a particular manner could have preemptive force. CJ Roberts and both Justices Scalia and Alito pressed SG Verrilli about this point. Justice Scalia asked the SG for a prior case in which the Court had said that such an exercise of prosecutorial discretion could have preemptive force. The SG did not offer any examples, shifting gears by stating that, at least some of the challenged provisions were preempted by federal statutes themselves. But suppose that's not true of Section 2--or for that matter, of some totally different state statute in a different case. Should it be possible for the federal executive to preempt state "over-enforcement" of a federal law by exercising its prosecutorial discretion?

A federal executive agency could promulgate a regulation setting out its enforcement priorities and, so long as that regulation-making power was procedurally sound (per the Administrative Procedure Act) and substantively within the scope of a delegation of power from Congress (per Chevron and the nearly toothless non-delegation doctrine), such a regulation would preempt state enforcement regimes that were inconsistent with the federal policy. That's just good old preemption doctrine: Federal law--whether it comes from the Constitution, a statute, or a regulation--preempts contrary state law.

But the question is whether the federal executive branch can do what I've just described through an unwritten policy of exercising prosecutorial discretion. I'm not an expert in administrative law, but I share Justice Scalia's skepticism that it has ever been tried. Perhaps Congress could expressly authorize a federal agency to preempt state laws through the federal agency's exercise of prosecutorial discretion, but I'm not even sure of that. After all, the Supremacy Clause makes the Constitution, treaties and laws of the United States supreme over state law, and while an agency regulation can plausibly be described as a "law" of the United States, it is hard to see how the exercise of prosecutorial discretion is a kind of federal "law" that preempts state law. One might think that discretion is the very opposite of law. In any event, here Congress certainly has not authorized any federal agency to give preemptive force to its exercise of prosecutorial discretion, so the skepticism of the Chief Justice and Justices Scalia and Alito on this point appears doubly warranted.

Although it's not entirely clear from the transcript of the oral argument, I didn't read the SG to argue that the federal government's exercise of prosecutorial discretion was preemptive. He appeared to say--and said clearly in his brief--that Congress's statutory grant of prosecutorial discretion to the executive, in combination with federal primacy over foreign affairs--itself displaces S.B. 1070. The difficulty for the S.G. on this point, however, is that his argument appears undifferentiated. Any state and local efforts to enforce federal immigration law will in some measure undermine the exercise of federal prosecutorial discretion; yet we know that some state and local enforcement efforts are permitted. So, in the end, the invocation of federal prosecutorial discretion seems like no more than a kind of tie-breaker in favor of preemption in an otherwise close case. Whether this case appears to the Justices to be otherwise close remains to be seen.

RomneyWorld and the Senate: How Much Damage Can a President Do in a Divided Government?

noreply@blogger.com (Neil H. Buchanan) — Thu, 26 Apr 2012 11:05:00 +0000

-- Posted by Neil H. Buchanan

In my new Verdict column today, I began a multi-part series of columns in which I will discuss the likely policies that would be implemented during a possible Romney presidency. Before proceeding to the substance of that task, however, today's column laid the groundwork by discussing two threshold issues: whether Romney can win (that is, whether it is even worth our time wondering about what he would do as President), and what broad principles would inform his approach to setting his policy agenda.

On the first point, I emphasize just how weak and problematic Romney is as a candidate. Given everything that is going in Romney's favor -- led, first and foremost, by the still-weak economy -- it is simply shocking that the early polls show a statistical dead heat. Even an ultimately close election should, at this stage, look bleak for any incumbent presiding over this economy. That Obama's political team is so frequently inept should only strengthen Romney's position. Yet, because of Romney's complete emptiness as a candidate (I refer to his strategy of trying to turn his lack of a moral core into his core electoral asset: "Nominate me! No one believes what I say, anyway!"), he is very likely to lose this thing for the Republicans.

Like the party's failure to take the Senate in 2010, because of its insistence on allowing incredibly vulnerable candidates like Harry Reid in Nevada and Chris Coons in Delaware to win against complete embarrassments, an inviting opportunity to knock off Obama could easily be squandered. Obviously, this is all to the nation's benefit (and the world's), notwithstanding my frequent criticism of Obama over the last three years.

On the second point, Romney's likely ideological agenda, I argue in my column that the notion that he would govern as a moderate conservative simply makes no sense. If anything, he will be given less room to deviate -- even a tiny bit -- from the conservative movement's ideological agenda than would a true conservative, precisely because of his well-known lack of a guiding set of principles (other than personal political ambition).

In that part of the column, I started to run out of synonyms for "opportunistic" and "unprincipled," but I did manage not to use any form of the word "mendacious" (no matter how apt it would have been). Going forward,therefore, my columns will essentially be based on the assumption that President Romney will be an obedient servant of his party's radicalized arch-conservative base. He calls Wisconsin Gov. Scott Walker a "hero," and he completely embraces Rep. Paul Ryan's insane budget plans. He will not be able to move away from those positions as President.

Toward the end of the column, I entertain the question of how Congress fits into the story. I first make the obvious claim that the House will not flip back to the Democrats on a night that Romney wins the White House. But what about the Senate? For my future columns, I will assume that the Senate is filibuster-proof, both because I think that such an outcome is likely in a scenario where we end up with a President Romney, and because that is the outcome under which we would have the most interesting -- that is, terrifying -- set of policy possibilities.

If the Democrats hold the Senate, however, the story must obviously change. In my first draft of the column, I wrote that a Senate with a Democratic majority would mean that "virtually nothing" would happen under President Romney. During editing, I deleted that claim and instead wrote: “No major legislation would pass, but the full force of the Executive Branch would be in the hands of a President who is beholden to the most extreme elements of his party.” Here, I will add two broad comments.

First, one must acknowledge that the Democrats are notoriously weak-kneed, especially in the face of a Republican President. While there have been important moments of unity -- most notably, the successful resistance to George W. Bush's plan to partially privatize Social Security, even though the Democrats were in the minority in both houses at the time -- it is easy to picture a handful of self-styled moderate Democrats in the Senate refusing to join in filibusters. Even with Ben Nelson retiring, and Evan Bayh all but forgotten, there is a never-ending supply of Democratic Senators who could somehow convince themselves to join the Republicans on key issues. At least on budgetary issues, my leading candidates are Mark Udall and Ron Wyden, who have already said and done silly things in the name of bipartisanship. Even if I am wrong, however, we would surely see some Senators taking the bait to become "statesmen" in the eyes of Very Serious People like Thomas Friedman of The New York Times, and all of the pompous heirs to the David Broder school of punditry.

Second, even if I am still wrong, and 41 or more Senate Democrats successfully fight off major legislative changes (and, even less likely, block Alito/Scalia-style judicial appointments), the damage of a Romney presidency would be real and extreme. A recent NYT front page article noted that the Obama team has been honing its ability to bypass Congress to get things it wants accomplished. Executive Orders, agency action, and all the rest are currently being used to serve centrist (or, at most, center-left) goals, having been adapted from the model of extreme executive authority set in motion during the Bush/Cheney years -- which were, of course, amped-up versions of the expansions of executive power under Clinton, which were themselves audacious extensions of the Reagan/Bush effort to roll back the restrictions of the post-Watergate years. Oy.

All of this is why, in the midst of my criticism of Obama throughout 2011, I conceded that there was no way that any liberal (or, I would now add, anyone who disagrees with any aspect of the Koch brothers' agenda) could fail to come around on Obama in 2012. The "under the radar stuff" is more important than ever. As we saw under Bush II, staff decisions were being made on religious grounds. Under Obama, the NLRB failed to fly under the radar at one point, but it has still insisted on enforcing labor laws, rather than gutting or ignoring them.

Therefore, my initial intuition that "virtually nothing" would happen under continued divided government is obviously wrong. RomneyWorld would be even scarier if the Democrats had no remaining sources of political power, but even a strong Senate opposition would not be enough to prevent an onslaught. I am very disappointed by Obama's Presidency (although he has gotten much better since last summer's debt ceiling debacle.) But the alternative -- even under Mitt the Mock Moderate -- is horrifying.

The Puzzling Persistence of Resistance to Keynes

noreply@blogger.com (Michael C. Dorf) — Wed, 25 Apr 2012 04:30:00 +0000

By Mike Dorf

Here's a puzzle: Why aren't Paul Krugman's Keynesian views more popular? Krugman has been more or less running around with his hair on fire ever since the start of the Great Recession arguing that the U.S. needed a much larger stimulus than it got and explaining why, per Keynesian theory, austerity measures in Europe would not lead, and have not led, to growth.

It's not hard to see why American Tea Partiers resist Keynesianism. The American right has long sought to reduce the size of American government--or at least to reduce taxes--and they regard Keynesian stimulus as simply a means by which the left justifies expansion of government programs that the right wants to eliminate. That's the political explanation, anyway, but it usually travels with a number of economic claims.

One such claim is nicely ridiculed by Krugman's repeated discussions of the "Confidence Fairy," a being he treats as about as real as the Tooth Fairy. Believers in the Confidence Fairy, Krugman says, expect that austerity will lead to economic growth because responsible government behavior will give private investors confidence that they can make secure investments, rather than worrying that borrowing today will lead to taxes tomorrow.

Another anti-Keynesian view worries about borrowing costs. Here the concern is that when the government spends borrowed money, it raises the cost of borrowing for private investors. That would be true in an economy at or near full capacity, but it's generally false when the economy is in recession--as the persistence of low interest rates in the U.S. attests.

Hayekianism provides the most sophisticated source of anti-Keynesian thinking. Hayekians say that stimulus at most promotes an artificial boom, which then leads to a bigger bust, and so in the end the economy is less distorted--and the boom/bust swings are less severe--when the government does not attempt to manipulate matters through fiscal policy. The case for and the case against Hayekianism are more complicated, so I won't go into them, and in any event, I'm not really interested in drawing economic conclusions here; I'm more interested in giving a causal explanation for the views that people appear to hold. I am sure that there are plenty of economists who choose between Keynes and Hayek based on their assessment of the theory and evidence, but when people without serious knowledge of economics proclaim themselves to be followers of Keynes or Hayek, they are likely just picking a macroeconomist based on their ideological commitments.

But that brings us back to the puzzle. It's easy to see why anti-government American Tea Partiers would sign on with Hayek. And given how far to the right American politics is relative to the rest of the democratic world on questions of the proper scope of government, it's not surprising that the skepticism of Keynesianism would extend pretty far into the middle of U.S. public opinion. But that leaves the question of why Europeans seem to be at least as anti-Keynes as the American right. After all, Europeans have had over half a century to get used to much more generous welfare states than the U.S. ever had, so it's very surprising that they have not been embracing a set of economic ideas that should greatly soften their landing. As this NY Times story notes, the European skepticism of Keynesian stimulus is beginning to soften, but for much longer than one would have expected, Europeans have maintained a commitment to austerity as the path out of their troubles. The question is why.

One possibility is the dominance of Germany and Germans over the rest of the Europe on economic matters. The Germans themselves live in perpetual fear of the return of Weimar-style hyper-inflation, and so they recommend austerity policies even when the greater risk is deflation. One might think that the preference for austerity in Europe is really just a German preference that is dominant because of Germany's dominant economic position. To this story of German dominance, one might add that even technocratic political leaders from southern Europe like Mario Monti and Lucas Papademos have worked for so long in the European organs that Germans and other northern Europeans dominate that they merely extend Germany's influence to Italy and Greece, respectively.

I don't want to deny the foregoing explanation, but I think it is still incomplete. In my admittedly unscientific impression of European public opinion, I have found that (at least until very recently) even the sorts of people who would likely be Keynesians in the U.S. (i.e., liberal academics), have tended to regard Keynesianism skeptically.

And that brings me to my final hypothesis: I think that much opposition to Keynesianism, both here and abroad, comes from a kind of moralism that regards it as a cheat. Just as individuals who borrow and spend profligately have an obligation to work off their debt (rather than to get bailed out), the anti-Keynesian moralist thinks, so too governments that borrow and spend their way into an economic crisis have an obligation to tighten their belts to climb back out of the hole. In this view, the Keynesian idea that the best course after the economy has crashed because of high debt load is to borrow and spend some more seems not just perverse but positively immoral. Accordingly, we have an explanation for why Tea Partiers and many others commonly conflate bailouts of private firms with government stimulus spending.

More generally, the hostility we see to Keynesianism probably has less to do with people being persuaded by Hayek than it has to do with their viewing the world in the way that Weber said that northern European Protestants viewed the world in his Protestant Work Ethic and the Spirit of Capitalism. My recollection from having read Weber (long ago) was that there was debate about the degree to which he correctly identified Protestantism as the driving force behind capitalism. But the spirit of capitalism itself is widely diffused among Europeans. Indeed, without it, the relatively generous social welfare states could never have taken root, because a society filled with shirkers who prefer the dole could not afford the dole.

Indeed, I think that the "spirit of capitalism" to which Weber referred may even be ascribed to Western culture more broadly. Think about Lenin, paraphrasing the New Testament in his statement "who does not work, he shall not eat." Insofar as Keynesian stimulus promises a free lunch, it contradicts a deep moralistic strand of Western thinking. That doesn't justify opposition to Keynesianism, but it may explain what is otherwise a puzzling resistance.