Wednesday, March 31, 2010
Health Care Reform and the Taxing Power
When last we met, I argued that the newly-minted "individual responsibility" requirement ("IRR") that individuals purchase health insurance or be subjected to a penalty tax is within Congress' power under a combination of the Commerce Clause + the Necessary & Proper Clause. But maybe you don't think so. What about the taxing power? The Constitution gives Congress (in Art. I sec. 8) the power to "lay and collect taxes...for...the general welfare." The IRR (when fully phased in, which is not until 2016...start saving) is designed as an income tax with a floor; folks who don't buy insurance pay 2% of household income or $695, whichever is greater. Lots of modern taxes have conditions attached to them; you can pay a lower tax by buying a wastewater treatment plant or investing in "closed-loop" biomass (i.e., fuel made out of chicken poop). No one thinks those are unconstitutional, so why not the IRR?
There are two big questions, actually. One was raised by Randy Barnett and his co-authors in a Heritage white-paper back in December. Another was raised by the Supreme Court in 1922. Both, though, are now out of date.
Barnett et al. argue that the IRR can't work because it's not "apportioned." See, as part of the three-fifths compromise, the constitutional conventioneers agreed that "direct" taxes could only be imposed on state citizens if the total liability of all the state's residents bears the same proportion of national liability as the state has of the national population. Huh? Ok, say California has 1/10th the U.S. population. That means a "direct" tax has to impose 1/10th of all its nationwide burden on folks in California -- no more, no less. Basically, apportionment is impossible for most kinds of taxes. So, um, what's a direct tax? Well, no one really knows. But we do know that income taxes aren't subject to apportionment, whether they're direct or not, because of the 16th Amendment.
So, fortunately, you don't really have to understand any of the last paragraph, because the IRR is an income tax. Perhaps this was not the case when Barnett et al. wrote their white paper? In any event, as I mentioned, the IRR now is clearly a tax based on the household income of the payer, and so clearly not subject to apportionment.
What about the Supreme Court? Well, in 1922 they said that Congress couldn't impose a tax on busineses that used child labor (in the aptly named "Child Labor Tax Case"). The court had just held (in Hammer v. Dagenhart, as you would remember if you hadn't slept through that day in con law) that Congress couldn't use the Commerce power to bar child labor, and they said in the Child Labor Tax Case that it was obvious Congress couldn't just use the taxing power instead. Then in 1953 they said, "geez, sorry about all those little kids whose childhood was cruelly ripped from them because of our boneheaded decisions," and, without quite overruling the Child Labor Tax Case, they held that any tax that raises money is constitutionally within the taxing power. Really, "any." Including a $3,000 tax on "adulterated butter," which I couldn't find a picture of on google images, but which--trust me-- is gross.
So, long story slightly shorter, looks like the IRR is constitutional. Obviously, one can critique on normative grounds the current state of the law. I have a very short essay on that question coming soon in the Yale Law Journal On-line; I'll post a link here when it's ready for public eyes.
Bringing Meaningful Privacy to the Internet
The most important law protecting privacy online is the federal Electronic Communications Privacy Act (ECPA). But the law is now nearly 25 years old, and it is riddled with anachronisms and saddled with unnecessary complexity. Yesterday, a new group calling itself Digital Due Process launched, with the goal of helping Congress effect meaningful ECPA reform. I am proud to be part of the group, but I joined only recently, so I can't take credit for the excellent work they have already accomplished. The list of my co-signers is impressive, a list of some of the most important Internet companies and online privacy groups, including, as Declan McCullagh notes, some odd bedfellows.
I'm excited about the response to yesterday's launch, both from the media and from prominent members of Congress, and I look forward to helping shape a bill in any way I can.
The specific changes our group has requested are all important, but I wanted to highlight two that I think will do a lot for Internet privacy. First, the police should not be able to track the location of your cell phone without first demonstrating probable cause. (If it shocks you to learn that they often do so with less than probable cause, call your Congressman!)
Second, the police should not be able to monitor the telephone numbers you dial and the email addresses with which your correspond without articulating the reason for the surveillance. Under the current law, an officer need merely "certify" the relevance of the surveillance to an investigation, and the judge's role is basically a rubber stamp--one court referred to the judicial role as "ministerial."
ECPA was written in the days of the mainframe. It hasn't kept up well with two decades of innovation. I hope Congress agrees that it is now time to update ECPA for the Internet age.
Transnational Litigation and Extraterritorial Regulation
I promised to follow-up on my earlier post about the Morrison case and the extraterritorial application of U.S. securities laws. Here it is....
Tuesday, March 30, 2010
Carney's Firing: The Other Side of the Story?
Larry Ribstein and the good Professor Bainbridge are bemoaning last week's firing of John Carney from Business Insider. Ribstein, Bainbridge and others are all citing this story by Foster Kamer as to the reason for the firing:
Blodget wanted more sensational, pageview-grabbing posts and click-friendly features like galleries, while Carney wanted to put forth breaking news scoops that told a longer narrative. It was also speculated that Carney, one of the highest paid members on the Business Insider staff, wasn't bringing the traffic numbers to sufficiently satisfy Henry Blodget, given his high profile within the financial reporting world, but that Clusterstock's homepage had the highest traffic of all the verticals at Business Insider during Carney's tenure, and that his own stories generated "tons of [unique visitors]."
This version of the story is obviously highly sympathetic to Carney; he wanted "breaking news scoops that told a longer narrative," while Blodget wanted "more sensational, pageview-grabbing posts." But from my perspective, Carney's problem was that "longer narrative": he consistently tried to bend news stories around to an extremely conservative/libertarian perspective. The latest example is this bit of regulatory nihilism: "Sorry America, The Latest Round Of Financial Regulation Reform Won’t Fix Anything." And frankly, that post seems rather restrained when compared with "Lying Government Humiliated In The Very First Backdating Conviction" and "How The Government Used The CRA To Push Crappy Lending Standards."
Just to be clear, I'm not saying Carney should have been fired. And I'm not saying he won't come back and be very popular at another site -- he probably will. I'm just pointing out that some readers may have been turned off by the overly-politicized message, as commenters at Felix Salmon opined:
Even with Carney’s thousand word essays on Lehman, I found most of what he wrote to be knee jerk, ad hoc advocacy that was “shallow and vapid.” Clusterstock may be less of a resource without him, but that doesn’t necessarily imply that it was much of a resource with him. I can’t imagine where Blodget is headed if Carney was his upside connection to quality journalism…
UPDATE: Professor Bainbridge responds: "He's the John Stossel of financial news and that's a very good thing."
The Spending Power & Federalism Down Under
Everyone knows that judicially enforced limits on Congress' spending power are mostly moribund. But it is an open question whether the Court could ever practically fashion more robust and judicially manageable limits on the spending power The High Court of Australia's decision in Pape v. Commissioner of Revenue suggests that SCOTUS's position is not the inevitable result of the nature of the spending power: While narrowly upholding a Commonwealth tax bonus program, the Court stated that the Commonwealth could not spend money for purposes reserved to the states. The decision is being regarded as a big deal by Australian legal academics, although it remains to be seen whether the HCA will follow through by enforcing limits against the Commonwealth rather than just talking about them.
Thanks to my student, Joe Edwards, for calling my attention to this case. Does anyone know of any other constitutional courts that have limited their central government's spending power? In my own view, the peculiar text of the U.S. Constitution sheds very little light on decisions like South Dakota v. Dole: The American doctrine is driven, instead, by considerations of judicial competence to set manageable standards. The examples of how other federal regimes deal with central governments' spending, therefore, might be instructive the question of whether courts can practically constrain the central government's power of the purse.
Arguments in Morrison v. Nat'l Australia -- Extraterritorial Laws
Earlier this month, I blogged about the geographic reach of federal law and mentioned the Supreme Court's decision to hear an appeal involving a "foreign-cubed" securities class action in Morrison v. Nat'l Australia Bank, Ltd. The term "foreign-cubed" refers to securities class actions in which the investors are foreign, the issuers are foreign, and the fraudulent conduct occurs abroad. The post followed up on earlier ones focused on extraterritoriality and international law.
Yesterday, the Court heard arguments in the Morrison case and an overview of the arguments and the case can be found here. Commentary has started on various blogs, including this analysis at SCOTUSBlog and this post at Opinio Juris. Analysis and previews of the oral argument were also provided yesterday at the WSJ Law Blog and at Law.com, among others. The case is an important one and has generated, as one commentator describes it, "feverish interest." Certainly other countries are interested. As Lyle Denniston at SCOTUSBlog noted: the "hearing that seemed tailored for its international audience — four members of the Canadian Supreme Court sat, raptly attentive, in the front spectators’ row." The London Times also ran an article commenting on how Britain was watching the case closely, and France, the UK, Northern Ireland and Australia, all filed amicus briefs in the case.
The case is potentially significant on the question of how readily courts should assume that American laws apply extraterritorially. Underlying the dispute is the question of what a court should do in the face of Congressional silence or at least ambiguity. Also in play is the relevance of certain canons of statutory construction, such as the presumption against extraterritoriality. The Court's questions (see some excerpts at Opinio Juris and in a Reuters piece) suggests the Court has grown skeptical about U.S. courts exerting extraterritorial jurisdiction and exporting its domestic laws worldwide. It's a position that seems to be shared, for different reasons, by both the more conservative and more liberal members of the court.
Reembracing a more territorial approach (or, at least, a greater reluctance to assume that Congress has regulated extraterritorial conduct) is, to my mind, largely a positive development and one consistent with what Max Huffman and I argued in a recent amicus brief filed with the court, and in a number of prior law review articles (including here and here). Extraterritorial jurisdiction can be problematic. Not only are extraterritorial laws inherently undemocratic (regulating foreigners, with no say in domestic political processes), but they also can retard and interfere with the creation of meaningful harmonized international, state-to-state agreements. At minimum, as this case illustrates, they can lead to international discord and conflict. Countries often retaliate, and broad extraterritorial applications of American law can lead to other countries applying their laws to Americans for their U.S.-based conduct. That doesn't mean that courts should never interpret U.S. laws to regulate foreign conduct, but they should do so cautiously. In a globalized world, territorial limits often are more, not less important, as way to reduce international conflict and reduce the problems created by overlapping jurisdiction. The Court is expected to have a ruling by the summer. I'll try to post more later.
The "Hide the Ballpark" Exam and the Importance of Telling Students What You Want (and Don't Want) on an Exam
Call for Papers: Religion in Law and Law in ReligionRELIGIOUS LEGAL THEORY CONFERENCE: RELIGION IN LAW AND LAW IN RELIGION
Center for Law, Religion, and the Global Community
St. John’s University School of Law
November 5, 2010
This annual symposium, to be shared among different law schools and now in its second year, addresses a broad range of topics. This year’s theme, “Religion in Law and Law in Religion,” encompasses papers on traditional religion/state questions as well as papers that discuss the concept of law in different religious traditions. Possible topics include: coherence and incoherence in American Religion Clause jurisprudence; comparative approaches to religion/state issues; doctrine and precedent as legal and religious concepts; and the role of authority in law and religion. Confirmed plenary speakers include Steven H. Shiffrin (Cornell) and Steven D. Smith (San Diego).
Please submit abstracts (500 words) and inquiries to Professor Mark Movsesian (firstname.lastname@example.org; 718-990-5650) by May 24, 2010. Accepted speakers will be notified by mid-June. For presenters, group rates at a hotel in Manhattan will be available; conference meals and transportation between Manhattan and the St. John’s Queens campus will be provided. There will be an opportunity for presenters to publish papers in a forthcoming issue of the St. John’s Law Review.
This year’s conference is being hosted by the Center for Law, Religion, and the Global Community at St. John’s University School of Law. The conference is being planned by Professor Movsesian and Professor Marc DeGirolami (email@example.com; 718-990-6760).
The Future of Legal Research, Part One
Why doesn't legal research work more like Google? Those who have asked this question (and I have the feeling many have) have really been asking two separate questions, the front-end question and the back-end question.
Front-enders wish for a user interface for legal research as simple as Google's interface for search to replace Westlaw's home page's chaotic proliferation of search fields (I haven't used Lexis for a couple years, so I won't comment on it.) Back-enders want search algorithms that work as well as Google's web search engine, algorithms that process simple search queries, not festooned with boolean connectors like & and /p, and spit out the most relevant cases or law review articles. I remember the first time I used Google, feeling like the company had developed secret technology which could read my mind. I've never had that feeling using Westlaw.
I've thought about both of these needs for years. Four years ago, I helped launch Altlaw.org, a website that tried to offer a free and better alternative to Westlaw, one we designed to replicate the front-end simplicity of search. I haven't been actively involved in Altlaw for years, but it seems to be doing well under the leadership of the talented Stuart Sierra. Then, I published a little essay (incidentally, "the world's first law review article that is also a working computer program") in the Villanova Law Review which criticized Lexis and Westlaw for ignoring more than a decade's worth of search engine, back-end innovations.
In a series of posts, I want to provide a status update to this critique, taking into account two new developments in the legal research world. First, last year, Google added legal texts to its Google Scholar project. I recently had an illuminating conversation with Anurag Acharya, the project lead for Google Scholar. Second, Westlaw is about to launch WestlawNext, a significant upgrade, perhaps the biggest in the company's history. Through my wonderful law library, I have taken part in the beta testing project for WestlawNext, which included a briefing by our Westlaw regional rep. I'll probably also have a little to say about recent developments from Lexis, Bloomberg, and the irrepressible Carl Malamud.
Here's my executive summary: The future of legal research is very bright, and things look better than I predicted a few years ago. Both Google and Westlaw have already made significant achievements, although each company still has a long way to go, and each should recalibrate its expectations. Google needs to talk to a few more law firm associates to understand the ways that searching for a case is not like searching the web. Westlaw similarly needs to talk to more law professors, because their new product is geared almost entirely toward law firm practice, and it does not work well for other kinds of legal research.
Monday, March 29, 2010
Taxing Professional Athletes
The state of Tennessee last year enacted a Professional Privilege Tax on Professional Athletes, taxing home and visiting NBA and NHL players $ 2500 per game, up to three games. (H/T: Deadspin, via FIU student Wes Plympton). Detroit Red Wings Captain Brian Rafalski has objected to the tax, noting that seventeen teammates who make in the $ 500,000 range (minimum NHL salary) end up losing money on the days they play in Tennessee. Proceeds from the tax apparently go to the municipality to fund various public parks/recreation projects. Interestingly, the NFL is exempted from the tax because the league had an existing rule that would penalize any state that attempted to impose such a tax. Minor league players are exempted as well (the original proposal covered only players making $ 50,000 or more).
It is easy to criticize this, as one commentator does, as a money grab targeting a vulnerable group. After all, no one is going to have sympathy for the group Rafalski is trying to protect--players making half-a-million dollars and having to pay $ 7500.
But dig deeper. The tax is expected to raise more than $ 1.1 million a year for municipal programs. The players are potentially playing in a publicly financed arena on which the state and local governments will not recoup their financial investments, so it is hard to blame the city for trying to get some fiscal benefit out of the deal.
I do wonder whether there is an Equal Protection problem here--not in singling out professional athletes, but in exempting the NFL. Is there a rational basis for taxing two leagues and not the third? Is avoiding a penalty from the NFL a rational basis?
The FBI's "special file room"
I ran across this piece in the Boston Globe, about a FOIA request that produced hundreds of never-before-seen memos on the FBI's highly restricted special file room. According to the Globe, "for decades sensitive material has been stored separately from the bureau’s central filing system to restrict access severely and, in more sinister instances, some experts assert, prevent the Congress and the public from getting their hands on it." The materials cover all sorts of things, including plans to relocate Congress in the event of an attack, dossiers on double agents and mob figures, information about gay rights groups and prominent individuals thought to be gay, as well as the FBI's own illegal domestic spying activities.
I happened to find the piece because it describes a term I hadn't heard before--"snitch-jacketing"--which refers to "an extremely sensitive counterintelligence technique, which apparently involved the FBI spreading false information that members of a targeted group were government informants in order to sow conflict within their membership." More generally, however, it's a nice example of the robust power of information control--something I've worried about in the criminal system for a while. To be sure, I recognize the limits of sunshine reforms--they're procedural, not substantive, they assume that making bad information public will lead to change, and so on. But every public institution has a "special file room" of one sort or another into which problematic information disappears, and the criminal system has more than its share. As the Globe wrote, "This was a system that allowed FBI officials to say we have searched our central records system and there is no record of illegal conduct by the bureau."
Institutional symbolic counter-speech
Sport represents the only occasion in which adults regularly participate in patriotic symbolic rituals and ceremonies, such as the singing of the national anthem. I have written a great deal about the free-speech liberty to engage in patriotic symbolic counter-speech--declining to participate or engage with the symbol or its associated rituals or otherwise using (or not using) the ritual to protest the symbol and its message.
An interesting twist on symbolic speech and counter-speech is playing out at the institutional level at Goshen College, an Anabaptist-Mennonite liberal arts college that plays in NAIA. For years, Goshen has not played the national anthem before home sporting events, believing that the song conflicts with the Mennonite traditions of pacifism and anti-militarism (the lyrics celebrate a war and a military battle) and objections to excessive nationalism or pledging allegiance to anything other than God.
But the school has spent more than two years rethinking and debating that policy, ultimately which has drawn criticism from some visitors to the school. The school finally decided to play an instrumental version before home games, beginning with a baseball and softball game played last week. The decision continues to provoke discussion, disagreement, and debate among college administration, alumni, and faculty.
This is an interesting resolution--in part because no one is quite happy. It seems to address the pacifism concerns, excluding the militaristic lyrics, but not necessarily the nationalism concerns, which would seem to reject any song honoring country, regardless of lyrics. I presume this is why playing an alternative song--America, the Beautiful (Ray Charles version)would be my preference--never has been an option and was not the chosen option now.
By agreeing to play the song at sporting events that it sponsors and hosts, Goshen as an institution is engaging in symbolic speech--promoting the symbol and its meaning through the pre-game ceremony. Goshen's message is slightly altered by using only the instrumental version and not associating itself with the lyrics. Now we see what (if any) symbolic counter-speech follows in response. Interestingly, in this case, it could come from both directions. Those who disagree with the new policy may refuse to participate in the symbolic ritual by refusing to stand during the song or by turning away from the flag. Those who believe the new policy does not go far enough may take it on themselves to sing the lyrics as a way of both giving a fuller endorsement to the complete patriotic message (whatever additional meaning comes from the lyrics) and of protesting Goshen's decision not to go farther with the anthem.
Sunday, March 28, 2010
Why do the Cato Institute and Randy Barnett care about federalism?
Brian's post on the constitutionality of health care legislation inspires my question, but Randy's support for federalism runs deeper than his Washington Post argument against the individual mandate in Obama's health care legislation: He also represented the appellees in Gonzales v. Raich, 545 U.S. 1 (2005). Moreover, it is not just Randy: American libertarians seem to have a fondness for federalism that strikes me as odd. The Cato Institute, for instance, has been a strong supporter of beefed-up limits on Congress' enumerated powers,filing a good amicus brief before SCOTUS defending the Fourth Circuit's position in the Comstock case that the power to enact a civil commitment statute for sexual predators must be tied to some express power of Congress and cannot be inferred from the Necessary & Proper clause alone.
I do not want to discuss the merits of any of these positions. (For the record, I think that Randy is wrong about the constitutionality of the individual mandate but that the Cato Institute is correct in their Comstock position). Instead, I am curious as to why American libertarians like federalism. This is not exactly an obvious libertarian position: If one level of government is bad, then one might think that two levels of government are twice as bad. Indeed, European libertarians, to my knowledge, have never liked federalism much. (On this point, see Rudolf Schlesinger's book on Federalism in East Central Europe, at pp 47-66).
So why do American libertarians think that federalism is consistent with their commitment to individual liberty? Why not, instead, support a strong national government that can suppress subnational trade wars and protect a robust set of national liberties? What's the payoff, in terms of individual liberty, from protecting subnational jurisdictions' exclusive jurisdiction over certain topics? In my own view, federalism bears very little relationship to libertarianism. I happen to support both normative theories, but I experience nothing but tension in my dual loyalties. (For me, federalism generally wins out). So, while I am glad that Randy and Ilya Somin and others keep churning out those pro-federalism amicus briefs, I can't help but think that they are really just undermining their own political commitments. Why do they do it?
I have three theories to explain the connection that libertarians draw between federalism and libertarianism, which I'll label the (a) "feet-voting" theory; (b) "shrink-and-drown" theory; and (c) "insincerity" theory. But, as I explain after the jump, they are neither very convincing explanations or justifications for the libertarians' pro-federalism position.
(1) Take, first, the "feet-voting" theory. The idea is familiar from the "fiscal federalism" literature that developed in the wake of Wallace Oates' revival of Tiebout's hypothesis about locational economies. (For a recent collection of essays describing this idea, see ">Bill Fischel's edited volume on the Tiebout hypothesis ). The basic idea is that citizen-consumers reveal their preferences for local public goods by moving between competing subnational jurisdictions. In the context of fundamental constitutional rights, citizens can "vote with their feet" for liberty over laws that they deem oppressive. Think Mormons' trekking to Utah from Nauvoo, Illinois; Puritan pilgrims making their way to New England, Exodusters heading west to flee white supremacy, etc. Ilya Somin, among others, has pressed this argument for federalism in several articles.
I am willing to concede that foot-voting provides a a weak and indirect method of limiting governmental power. Note that it requires vigorous national protection of interstate mobility through the devices like the dormant commerce clause,Article IV, section 2, etc. Note also that the theory works best when state expropriate mobile assets and works worst when states persecute nationally unpopular groups like, say, accused sexual predators who have nowhere to flee because they are too few in number to capture a state government: The notion that foot-voting would do a lot to help out Mr. Comstock, for instance, strikes me as fanciful. Note finally that theory is a really attenuated way to protect liberties from very large states that can extract locational rents: yes, you can flee California and New York, but you'll have to leave behind family, friends, community, and so forth. It is not like moving to New Jersey when rents rise in NYC.
But put these objections aside and consider a larger difficulty with "libertarian federalism": Why support this indirect method of defending individual liberty rather than the straightforward way of using national courts to enforce a robust set of national rights? Must we really hire U-Hauls rather than attorneys to vindicate our fundamental liberties? If, as Randy tells us, the Constitution is a charter of basic liberties, then why not spend one's litigating energies pressing for a more robust Ninth Amendment rather than trying to give states like Kansas first dibs at locking up Mr. Comstock? (Note that, to my knowledge, the Cato Institute filed no amicus brief in Kansas v. Crane, the SCOTUS decision upholding state civil commitment under the 14th Amendment's due process clause.
(2) The "shrink-and-drown" theory argues that, by distributing power among governments with fewer resources, government will be easier to control. It is easier to drown a kitten than a tiger in a bathtub, and states look more kittenish than then feds. Again, there may be something to this idea, (a theory which is heavily dependent on constraints in states' fiscal capacity induced by taxpayer mobility). But is it not counter-balanced by the greater danger a la Federalist #10 that states move faster and in a more populist direction than the feds? "Three strikes, you're out," civil commitment for sexual predators, etc, are more likely to be enacted more quickly by the states than the gridlocked Congress supervising a bureaucracy not easily mobilized for popular vendettas. As a libertarian strategy, federalism again seems a bit attenuated.
(3) Finally, it just might be that the libertarians are insincere about federalism: While Randy and Co. find it a convenient way of limiting one level of government, they do not ultimately want to defend a federal system with robust subnational jurisdictions but rather intend to suppress the states with some robust theory of the 14th Amendment, dormant commerce clause, etc, when the time is right. They simply believe that a frontal assault on the welfare state is impossible before this Court and, therefore, are focusing their energies on the feds, saving the states for a later attack except on issues like the Second Amemndment where they think that they can pick off five votes.
I have no objection to insincere litigation for a sincere political goal. But one must be careful what one sues for: If one aggressively argues that issues like civil commitment, home-grown marijuana, crime control, family relations, and so forth, belong exclusively with state jurisdiction, then it may be tricky later to argue that the 14th Amendment places substantial limits on such "traditional state concerns." , federalism, after all, did not evaporate as an important concern of the Constitution in 1868: If courts can enforce federalism-based limits against Congress under Article I, then surely they can do against themselves under the 14th Amendment, reserving this provision for only the invasions of liberty that are most obvious affronts to the concerns of 1868. On this theory, federalism remains a background rule of construction for the 14th Amendment, to resolve interpretative doubt in favor of state power in close cases.
In other words, the pro-federalism rhetoric of the Cato Institute in Comstock may come back to haunt them in McDonald v. City of Chicago, where they filed an amicus brief favoring incorporation of the Second Amendment. As a federalism supporter who is lets his libertarian sympathies take second place to his love of subnational democracy, I certainly hope so.
Criminalizing Urban Space: Three musings on the Sit-Lie Ordinance
Yesterday, the city of San Francisco was awash with protesters against a proposed "sit-lie" ordinance, forbidding the public from sitting or lying on city sidewalks during the daytime. The new ordinance was proposed by Mayor Newsom after a stroll with his baby on Haight and, according to students of mine who attended the police commission meeting, is strongly supported by business owners on Haight street, who ascribed the decline in business over the last two years to the presence of people on the sidewalk.
This is hardly the first time law is used to regulate urban space in a way that could be interpreted as a criminalization of the poor. William Chambliss, studying Medievalvagrancy law from a Marxist criminological perspective, argued that the vagrancy offense emerged as a way to regulate labor in a feudal market. Newer scholars, such as Jeffrey Adler, debate that interpretation, arguing that Chambliss' account is full of historical inaccuracies. Nevertheless, the critical criminologists of the 1970s succeeded in introducing a dimension of social conflict and coercion into our assessment of criminal law, and particularly low-level street offenses. A classic 1956 piece by Caleb Foote, for example, provided an ethnography of a vagrancy court in Philadelphia, in which the magistrate seemed to be much more interested in "cleaning trash" off the streets than in listening to what the defendants had to say (check out Jeffrey Skolnick's comments on the piece).
One of the best ways to explain what is going on is by using labeling theory. A predecessor to various critical theories, and somewhat unfairly critiqued by some later theorists for its naïvete, labeling theory changed the focus of criminological inquiries from the question "why do people commit crime?", which assumes a consensus about the definition of crime, to, "how do certain behaviors come to be defined as crime?". Social deviance, as some theorists suggested, is in the eye of the beholder; once a certain social group succeeds in labeling a certain set of behaviors as crime, we come to see the people who engage in that behavior as criminals. And, sometimes, they come to see themselves as criminals.
The sit-lie ordinance is a classic case of an attempt to apply a new label. Haight Ashbury, the neighborhood that prompted Mayor Newsom's enthusiasm for the new ordinance, gets its special character from its 1960s heritage as the cradle of the hippie movement and free love. Back in the sixties, the first generation of hippies forming communes and challenging conventional culture were seen as deviants, but their impact on the city's culture, and beyond, was immense. Today, the tie-dye clothes and head shops are mostly mementos of a time past, and our attitude toward the youth on the sidewalk has also transformed. If the behavior is the same, why the change in attitude?
2. Moral Entrepreneurship
Labeling theory sees the social order as conflict between different groups, all racing to impose their values on society by labeling the behaviors they see as problematic as crime. In this case, business owners at the Haight, and politicians running for office, have incentives to label the sidewalk dwellers as criminals and treat them as such. Greg Kamin's review of the police commission meeting about the sit-lie ordinance is an excellent demonstration of this principle: different stakeholders in the city coming together to fight over labeling this behavior. While the issues at stake are clearly political and ideological, using the law, and particularly the criminal apparatus, to enforce such views is a powerful strategy. After all, the law is seemingly universal in its application: Everyone, not only runaway youth and homeless people, will be forbidden from sitting on the sidewalk, n'est ces pas? As Anatole France said in 1874, "[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."
Criminalization of street-level offenses has been a particularly useful political tool for politicians concerned with a "soft on crime" image. As Jonathan Simon argues in Governing Through Crime, this concern transcends political affiliation, and in fact might lead progressive politicians, such as Newsom and Kamala Harris, to initiate legislation of this sort in order to garner legitimacy as guardians of public safety (we examined Harris's proposal here).
Whether or not we see the ordinance as a tool for more order and business prosperity or as an instrument of criminalization, the practical question is whether it is necessary. Certainly, it would make the police's job easier in terms of providing grounds for citation or arrest. As characterized by Chron columnist Nevius, the proposal "would restrict sitting or lying on public sidewalks anywhere in the city between 7 a.m. and 11 p.m. First-time violators would be warned to move, then could receive a citation with a $50 to $100 fine. The second violation could result in 10 days in jail or a fine of $300 to $500, and each violation after that would be subject to a $500 fine and 30 days in jail." However, it would be a good thing to consider some of the effects this might have.
Since the targeted offenders would, for the most part, be unable to pay the fine, they'd be shunted to court, where the case would be closed or diverted to the Community Justice Center or to the Mental Health Court, where the same population could end up anyway, for the exact same reasons, if prosecuted for one of numerous violations of the already existing San Francisco Police Code, such as aggressive solicitation.
This may appear to be a fairly narrow example of criminalization, and perhaps less deserving of attention than more dramatic punitive legislation, such as the Three Strikes Law. Nevertheless, street-level quality-of-life crime is a prime example of legislative interests and values and the process of regulating urban space. I suggest staying tuned to this initiative and similar efforts; they can teach us, and our students, a lot about questioning the assumptions behind the legislative process.
Saturday, March 27, 2010
Outlining for Class...
Last week, I posted some suggestions for students on how to prepare for final exams. The suggestions were taken from a new book that Cristina Knolton and I have written on how to succeed in law school. I've been told the book will be available in late April, and a sample chapter can be found here. I thought I would continue the thread and provide some brief suggestions on how to outline and the benefits of outlining in law school. For blog purposes I've kept this short and truncated:
A Brief Overview
1. Why You Will Outline: Many students underestimate the benefits of outlining. Students should outline not because of the final product. It's the process that matters. Outlining forces students to organize, synthesize, and understand more fully the different topics and issues covered in class. Outlining -- done correctly -- can give students a roadmap or a strategy for tacklinge exam questions. Because of this, borrowing outlines from a friend or using commercial outlines are not as effective. Commercial outlines serve a purpose (providing an overview of a course or as a tool for understanding the material), but they can't replace the benefits of creating your own outline and organizing, learning, and thinking through the material covered.
2. When To Outline: Early! (oops, too late for that now!). Many students wait until the very end of the semester to outline. That's usually a mistake. Starting early allows you to learn the material well before the exam and forces you to identify topics you don't understand - so that you can seek out help if needed. Plan to finish your outlines before the end of the semester. You don't want to be using the time right before the exam to learn the material. If you haven't started yet for this semester, don't stress -- but getting moving on it right away.
3. What to Outline: In law school, you can find students with massive outlines -- hundreds upon hundreds of pages of material containing every tidbit of information you'd want to know about a course's subject. These massive tombs contain the student's class notes, their notes on the reading, their notes from hornbooks, their notes from study group meetings, excerpts from statutes, case briefs, hypothetical questions, the professors musing and ramblings, cut-and-pastes from commerical outlines etc. These kind of War-and-Peace outlines make students feel warm and comfy knowing that they have transcribed everything anyone could ever want to know about the topic. The author will be proud. He or she may even brag about the outline. It will become a document of worship. And it will be absolutely and completely useless.
Good outlines are not information dumps. An outline should be a condensed, focused, and synthesized summary of the key legal rules. It should provide a framework through which to answer exam questions. It might provide examples and hypotheticals. It will highlight policy considerations. But overall, it should be relative short.
How to Outline
1. Get Organized: Get settled in a distraction-free environment. Make sure you have what you need to start crafting your outline (course syllabus, casebook, notes, case briefs etc). Most students need concentrated time to craft a good outline. Consider starting off with a template so that you're consistent throughout the different topics you cover.
2. Organize Around Legal Topics: Don't organize around cases or statutes. You want to organize your outline around concepts and legal topics. The outline needs to focus on the main legal issues and principles of law you studied. A good way to start an outline is to look at the table of contents from your casebook or your course's syllabus. Write down the main topics you've covered. This will ensure you're organizing your outline topically.
3. Subdivide Into Legal Elements: After you've identiifed the main topics, break each topic down into its main components and include all the elements for each legal issue. Be sure to flesh out each part or sub-part with a definition or explanation.
4. Blend in Key Cases/Statutes: After you have identified the main topics and key issues within each topic, and the elements to each legal issue, your next step is to include information about the relevant statutes, codes, cases, or other material you've studied. Cases are examples or illustrations of how elements of a rule work in practice. Don't include full case briefs. But be sure to note, just quickly, how the cases you have read demonstrate how the rules apply.
5. Include Policy/Reasoning: For each rule, standard, test, or element, identify the policy considerations behind it. Professors like to talk about policy in class. And discussing policy on an exam can make a difference in your grade. Might as well include it in your outline.
6. The Condensed Outline: At some point, consider condensing your outline to one or two pages. This often is done just a few weeks before the exam. This very short outline should serve as a checklist for the key points in the course. Memorize to ensure that you spot the issues being tested and have a framework to attack exam questions. Usually the condensed outline is limited to the basic elements of the different legal rules you have studied in the course. Condensed outlines are particularly helpful when studying for closed book exams.
A final point. Keep in mind that oulines are personal things. They can look very different. Don't worry if your outline is not as pretty as your friend's. An outline should be a tool that helps you understand and organize material covered in class. And again, the process of making the outline is the most important. What works for you, might not work for someone else.
There's lots of discussion online about outlining in law school. You can find some tips here, and here, and here. PrawfsBlawg has had some great advice in the past too, including Paul's advice to 1Ls, the use of open or closed-book exams, and a post about tracking down old outlines. Hope this helps.
On Good Writers (Present Company Excepted)Dan, I've been out of town but I'm grateful for the post. To be told that your writing is a near-cause of child neglect is high praise indeed. For myself, there are those writers I admire and emulate, and those I can only admire, knowing that I can't do what they do. I love and emulate Richard Posner's writing, although I use many more commas than he does. I greatly enjoy and emulate much of Mark Tushnet's writing. They both strike me as being strong on the art of cutting to the quick in clear and simple language. On the other hand, I find absolutely beautiful the first half of Jed Rubenfeld's Freedom and Time, although I couldn't possibly write in that style. I admire Marc DeGirolami's grace and Steve Smith's limpid style and sense of humor. There are also many legal philosophers who, true to their profession, write in a concise and incisive way that I admire, although again I can't equal it. A fun question -- I'll let you ask it, Dan; leave me out of it -- would be what legal academic writers one admires greatly as thinkers while finding their writing awful. Comments on this question (especially anonymous comments) are not invited; like I said, let Dan ask it.
Supreme Court Bobbleheads at Yale
As someone who cherishes my Green Bag bobbleheads of the Justices, I was relieved by this news:
And so the Lillian Goldman Law Library, which probably has the best collection of rare law books in the world after Harvard and the Library of Congress, is now the official repository of bobbling likenesses of a dozen Supreme Court justices.
“The bobbleheads are, not to overstate it, a little bit more than toys,” said Ross E. Davies, the editor in chief of The Green Bag, which calls itself “an entertaining journal of law” and created the dolls. “They’re portrayals of the work and character of these judges.”
The bobblehead of Justice David H. Souter, for instance, wears heavy gold jewelry and sits on a lifeguard stand, reminders of his opinions in a copyright case involving the rap group 2 Live Crew and a sexual harassment case brought by a female lifeguard. In a second copyright case, Justice Souter referred to “the latest release by Modest Mouse”; his bobblehead plays a snippet of a song by the band.
These new acquisitions present challenges. “I don’t know if anyone has cataloged bobbleheads before,” Mr. Shapiro said. “This might be breaking new ground.”
I'm curious to see how the good people at Green Bag will incorporate, into the (upcoming, I assume) Justice Thomas bobblehead his often-reported interests in RV-touring and NASCAR.
Is the Health Care Legislation Constitutional?
Rich's post on the possible unconstitutionality of the health care legislation has stirred me from my bad-guest-blogger torpor. (Well, that, and the completion of those darned footnotes.) I want to address (in my next post or two) Rich's interesting claim that conditional taxation might exceed Congress's constitutional power to tax. First, though, we need to ask whether we even need to ask that question.
The main issue is the law's requirement that individuals buy insurance, also known as the "individual responsibility" requirement ("IRR"). The power to tax is only needed as a basis for the IRR if the commerce power is insufficient. I am convinced by Jack Balkin that the congressional power to regulate commerce does (as both descriptive and normative matter) reach requirements that individuals acquire insurance coverage.
Randy Barnett et al. and Ilya Somin argue otherwise, but they overlook the necessary and proper clause. If one concedes that Congress has the power to prohibit insurers from discriminating against those with pre-existing conditions, then the mandate that individuals purchase follows as a matter of economic necessity. Without IRR, the non-discrimination rule will be prohibitively expensive for insurers, and also for the government that must subsidize issuance of insurance to risky populations. (Because otherwise healthy individuals will simply wait until they're sick to buy insurance.) After the jump, some counter- and counter-counter-argument.
Of course, it's possible to push back against my premises. Ilya and Randy would argue that Congress lacks the power to regulate intra-state insurance contracts, or that the necessary & proper clause cannot be invoked in support of Congress' purposes rather than powers (for more on that one, see David Engdahl's 1994 article "The Spending Power," 44 Duke L.J. 1). I don't think either of these claims represent either current law or a likely direction for future law (as both Randy and Ilya forthrightly acknowledge), since they would both represent quite radical breaks from current doctrine, and would imperil big chunks of federal regulation.
One also might suggest, though, that these kinds of considerations could nudge the law towards more demanding review of the policy basis for what makes a use of federal law "necessary." In the case of the mandate, the argument might be: "Hey, this is the same as a tax on healthy people to pay for coverage for poor people. Why doesn't Congress just do that, instead of forcing people to enter into contracts they don't want?" Put aside for now whether even that tax would be constitutional. Are there policy reasons for preferring a mandate to a simple redistributive tax?
Yep. Here's a few:
Friday, March 26, 2010
PowerPoint in the Classroom...
One of the questions that seems to commonly arise among law faculty is the effectiveness of PowerPoint in the classroom. Dan had a good post on the topic a few years ago, My colleague, Dave Fagundes, wrote an interesting post about his conversion (sort of) to PowerPoint as an effective tool. Howard Wasserman, a few weeks ago, made a "modest proposal" to ban PowerPoint and laptop use altogether. Howard notes that he's on record "as loathing PowerPoint for just about all purposes." Eric Johnson in 2008 suggested professors should "smash your PowerPoint -- use freemind." A number of other webpages discuss the benefits and pitfalls of using PowerPoint, or provide tips on how to use it effectively. I thought I would weigh in on what has become a perennial debate.
Somewhat similar to the debate over laptops in the classroom, professors (and students) have starkly different and fiercely held opinions as to the benefits or detriments of PowerPoint. Some believe PowerPoint use is perilous. That slides cater to oversimplification -- the reduction of everything to bullets -- and destroys class interaction. Others are skeptical unless the slides are limited to pictures, photos and video, so as to cater to visual leaners. Others embrace PowerPoint as a way to increase engagement and keep the material presented organized, as well as a way to focus the professor. I tend to take a middle position: that PowerPoint when used well can be very effective, but often is used poorly. Here are my tips (probably common wisdom, or even obvious) on: (1) what to avoid when using PowerPoint; and (2) some uses that I have found beneficial in the classroom.
First, to avoid....
Reading the Slides: In my opinion, professors should never just read verbatim from the slides. The slides should complement the classroom interaction and presentation, but not substitute for it. Everyone can read. If a professor is just reading from a slide, it's a waste of time.
Turning Your Back to the Class: Professors don't have eyes in the back of their heads, but professors should either be sufficiently comfortable with the material that we don't need to look at the screen constantly, or professors should position their computer so they may glance at it without turning constantly away from class. PowerPoint seems best used when it complements the class interaction or lecture in a visual way.
Complexity: Some professors overuse animation, transitions, and color features so that the presentation is a Technicolor swirl of images and text jumping in an out. Kaleidoscopic changes between slides are rarely that interesting. Usually excessive fonts, colors, animation, transitions, sounds etc., is a sign of a novice who is just learning PowerPoint. I'd also recommend cutting the strange fonts and keep the slides simple and clean looking.(these days, with high resolution projectors a white background with black text looks pretty good).
Death by PowerPoint: If the slides are so detailed they provide all the lecture's information, I'm not sure the point. There's a danger that the class can change from an interaction to a series of mind-numbing presentations. And if there's too much information on the slides, students will spend the class madly typing everything on the slide verbatim.
And some good uses for PowerPoint...
Statutory Language: I find if I'm talking about a specific statute or code provision, having the provision on a slide can make the class run much smoother. Trying to get every student in a large class to focus on a statutory provision from the casebook will often lead to confusion ("What page was that again professor?"). Having the key language on the slides ensures that everyone is looking at the same thing.
Multiple Choice Questions/Hypos: PowerPoint is great as a way to give short hypotheticals in a multiple-choice format (particularly if you are using a CPS/class polling-type system). Students appreciate the ability to go back and have practice questions to work with.
Basic Topic Outline: As long as it's not too detailed, I find the slides useful for giving students an overview of things to come. It can keep class organized and focused.
Visuals: Sometimes cases are easier to understand with visuals. I've found this particularly true when a case turns on some geographic issue (in which case a map is helpful). It's also helpful if the case involves complex litigation and I want to show the case structure and how the parties are aligned.
A final point. Before using PowerPoint its useful to know you're school's equipment (how good are the projectors, do they have a high resolution, is the screen clean, and what is the screen's size). If the equipment is good, you usually don't need excessively large fonts for the presentation to be easily readable. Before you spend time using subtle font colors, you also want to ensure that those colors will appear on the screen.
Anyway, those are my quick thoughts... Let the disagreement begin!
Thursday, March 25, 2010
Tri-4-Gey 4 is next week!
As many of you know from updates that have appeared in previous years, my FSU colleague Professor Steve Gey has ALS and it's an utterly grim situation. Making the best of the situation, Steve, a distinguished scholar in constitutional law, has been writing law review articles quite literally with his toes. Meanwhile, former students, current students, friends and colleagues are training for yet another triathlon in which they participate with the goal of raising money for a cure to ALS.
This year, the fourth since Steve was diagnosed, the folks behind the Tri-4-Gey are asking people to donate in Steve's name to Florida State's "Steve Gey Endowment for Excellence." Here's how you can do it.
(1) Go to https://foundation.fsu.edu/community/SSLPage.aspx?pid=815&srcid=838
(2) Select "Steve Gey Endowment for Excellence" from the "Designation" drop down box
(3) Fill out the requested information
(4) If you know anyone participating this year, then under the section titled "Tribute Information," select "in honor of" and put the team member's name that you are supporting in the "Name" box so that we can keep track of each team member's fundraising efforts.
After the jump, I've posted a paragraph from a recent update by Steve that shows his indomitable spirit.
Despite these unhappy circumstances, my days are still relatively full. I spend my time doing what any rational person would do with his last days on earth: writing law review articles. I've got three articles coming out very soon, another that is currently under submission, and a fifth that is about three-quarters done. Who says tenure makes you lazy? When I am not writing law review articles with my toes, I read, watch movies, and listen to music. Mostly lighthearted stuff. For example, the item currently gracing my Kindle is a novel entitled "God is Dead." The basic plot is that God comes to Earth embodied in a wounded Dinka woman in Darfur. But although God plans to apologize for his role in permitting things such as Darfur to happen, he is gunned down, which triggers the events in the rest of the book. Like I say -- lighthearted. As for movies, I heartily recommend any example of the Romanian New Wave, or any of the recent movies made by directors in the countries that used to comprise the former Yugoslavia. They are almost uniformly wonderful, if a tad bleak. (Look, I'm dying here, so what did you expect -- a recommendation of "The House Bunny"?) As for music, today it has ranged from The Clash’s "Should I Stay or Should I Go" (get it?) to the gloriously quirky Glenn Gould rendition of The Goldberg Variations. I recommend the 1981 recording of the latter, by the way. (One of my many fears of this whole locked-in thing pertains to music selection. I live in mortal fear of asking for John Coltrane’s "Blue Train" and having one of my handlers load something along the lines of the Ramones’ "I Want to Be Sedated.")
The Two Fourteenth Amendments
Most historical scholarship on the Privileges or Immunities Clause ignores or minimizes the fact that the Thirty-Ninth Congress debated two very different versions of the Clause. Scholars recognize, of course, that the precise wording of Section One of the Fourteenth Amendment changed shape as the debates went along, but the alteration is treated as if it had little, if any, substantive significance. Thus, comments made by John Bingham and other members regarding the initial draft of the Privileges or Immunities Clause are treated as if they illustrate the members’ understanding of the final draft of the Privileges or Immunities Clause.
As I explain in a new paper, this is a mistake. The texts of the first and second drafts are
significantly different—so much so, that comments made in regard to the first
cannot be assumed to apply to the second.
Those scholars who have addressed the changed language of Section One, such as Akhil Amar, have explained the change as reflecting a desire to follow the drafting advice of John Marshall in Barron v. Baltimore and add language expressly binding the states. This, Amar explains, is why Bingham added the words “no state shall” to the second draft of Section One. Although Amar is right about the addition of “no state shall,” this is only one of the changes made in the second and final draft. The most significant change involved the abandonment of the language of Article IV.
the debates, Bingham believed that Article IV “privileges and immunities”
included liberties expressly enumerated in the Bill of Rights, such as the
rights listed in the Fifth Amendment. According
to Bingham’s initial understanding, the Comity Clause of Article IV ought to be
read as if it contained an “ellipsis,” thus protecting “the privileges and immunities
[of citizens of the United States] in the several states.” In fact, during the debates over the initial
draft, Bingham went so far as to claim that Article IV was part of the Bill of Rights. Bingham
was so certain about this “ellipsis” reading of the Comity Clause of Article IV
that he used the exact language of Article IV in his initial draft of the
The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all the privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5th Amendment”) [parenthesis in Cong. Globe].
According to Bingham, this amendment would allow the federal government to enforce the Bill of Rights against the states—and nothing else. His proposal, Bingham explained, “hath this effect. Nothing more.”
The problem was, Bingham’s reading of Article IV was almost completely idiosyncratic—he was the only member of the Thirty-Ninth Congress who claimed that the Comity Clause of Article IV bound the states to protect the Bill of Rights. Although some radical Republicans believed that Article IV authorized broad national protection of substantive individual rights, most members believed that Article IV did nothing more than provide sojourning citizens equal access to a limited set of state-conferred rights. Most of all, the moderate Republicans strongly opposed the efforts by radical Republicans to nationalize all civil rights in the states. Not surprisingly, these members rejected Bingham’s reading of Article IV as protecting national rights, and they cited reams of antebellum cases and constitutional treatises which refuted Bingham’s interpretation of the Comity Clause. Probably most wounding to Bingham, even those members who claimed to support Bingham’s effort rejected his understanding of Article IV. Giles Hotchkiss, for example, agreed with what he thought was Bingham’s limited goal of protecting the equal rights of citizens in the states, but he believed that Bingham’s first draft granted too much discretion to Congress to define the scope of equal rights.
Bingham, of course, was trying to do much more than protect equal rights—he insisted throughout the debates that his efforts were directed at forcing the states to follow the substantive liberties listed in Bill of Rights. His first draft of the Fourteenth Amendment, however, used the language of Article IV—and few members besides Bingham and the Radical Republicans read that language as protecting substantive national rights. Worse, the Radical reading of Article IV would allow federal control of all civil rights in the states, not just rights listed in the first eight amendments—a result Bingham opposed as much as most moderate and conservative Republicans (this is one of the reasons why Bingham refused to support the Civil Rights Act of 1866).
The overwhelmingly negative response of his colleagues soon convinced Bingham that he had made a mistake in basing his initial draft on the language of Article IV. As soon as Hotchkiss sat down, Bingham rose and announced his decision to withdraw the first draft of the Fourteenth Amendment. Weeks later, Bingham returned with a very different text. This second draft abandoned the language of Article IV and instead adopted the language of federal rights traditionally found in United States treaties: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
In my next post, I’ll present Bingham’s explanation of his second and final draft of the Privileges or Immunities Clause—and why this reading would likely be welcomed by a majority of the current Supreme Court.
Wednesday, March 24, 2010
GratitudeThose of you who have been diligently following the train wreck hiring threads of the rookies here at Prawfs the past year should join me in extending our gratitude to Justin Levitt. Justin's the one who performed the yeoman's work of updating the spreadsheet for hiring, a spreadsheet whose existence we also owe thanks for to the inimitable Sarah Lawsky (GW, now at UVA, en route to UC-Irvine). By laboring on this task, Justin followed in the grand tradition established by Marc DeGirolami, who did this for us last year. Now that the season is winding down, we'll keep the thread alive, but Justin won't be monitoring it with the same diligence he exhibited during the last year. Once again, thanks Justin, for all your help with that, and congrats on joining the wonderful crew of prawfs at Loyola Law School in LA, many of whom are blogging with us here this month!
Final Thoughts on "Ordering the City"
Many thanks to all who contributed to our book club for Nicole Stelle Garnett's "Ordering the City" for an extremely thoughtful and rewarding discussion. If you missed any of the posts, here's a recap:
- Ben Barros, Complexity and the City
- Tracey Meares, Meares on "Ordering the City"
- Chris Serkin, Ordering the City
- Lee Fennell, Ordering the City
- Stephen Clowney, Order and the Poor
- Michelle Wilde Anderson, Ordering the City
- Nicole Stelle Garnett, Ordering the City, Redux
- Michelle Wilde Anderson, The Purposes of Planning (the Good Kind): Ordering the City Part II
If you want to chime in, feel free to join in the comments. And thanks again to our terrific contributors.
Who are your favorite writers (in the legal academy)?
The other day Brian Leiter posted a quiz about people's favorite law bloggers, until he took it down b/c apparently some folks were gaming the poll. Screw that. I have a far more serious question. Who are your favorite writers, qua writers, of law review articles (or, if you're not really reading law review articles these days, blog posts or books). Mind you, note that the question is not who's the smartest prawf or the most influential or even the "best" scholar or blogger that you need to read. Just: whose writing do you take sheer delight in?
I ask because the thought crossed my mind while reading a draft of a book manuscript by our own Paul Horwitz last night. Though it's not in my area and I'm swamped by other obligations, I find Paul's prose just about close to impossible to put down. (Don't worry, though, Paul, I *will* put it down and I only started reading it for about 20 minutes at 1am before I conked out. So no fear that Ben-Ben won't get proper attention.) In any event, I have a few other people whose writing I would also nominate for consideration. Rick Hills would be up there as would Dan Kahan. To be sure, I don't agree with both of them many times but I find their extended writing, some of which is far afield from my own work, intensely engaging. In the blogosphere, I would add a few other names (not to say their scholarship isn't top drawer, but I have less occasion to read it): Kim Krawiec, David Hoffman, Christine Hurt, and Sarah Lawsky (when I can find her!). Who's on your list?
Prisoners' rights and public employee unions
Jonathan Simon has a nice post on prison conditions in California in which he observes that California politics have not shifted sufficiently to permit wholesale reform of the culture of incarceration that has destroyed California's budget and blighted the lives of low-income communities. Jonathan emphasizes the political incentives that motivate lawmakers to support fiscally suicidal levels of incarceration, implicitly attributing these incentives to the public's support for vindictive penalties.
But Jonathan ignores one political factor that might be changing in California -- the power of Don Novey's the California Correctional Peace Officers Association (CCPOA). As the Economist notes here, the CCPOA have been one of California's most potent interest groups, and they have been a powerful lobby for "three strikes, your out" and other senseless sentencing policies that provide jobs for their members. But Novey's union may have over-reached: The wages and benefits of prison guards have reached such insane heights -- the average member of earned around $70,000 a year and more than $100,000 with overtime, with retirement starting at 50 years of age at 90% of salary -- that lawmakers may finally start to revolt.
In any case, the influence of the corrections officers union is so obviously pernicious in California that it might lead legal scholars to revive the old Wellington-Winter hypothesis that public employee unions enjoy excessive political power because of the inelasticity of demand for their services and their high levels of political organization. There is a tendency among Left-leaning academics to see unions as the unadulterated source of beneficial egalitarianism. When, however, such unions control services disproportionately consumed by low-income persons -- incarceration and education, for instance -- they can be deeply inegalitarian. I have commented earlier that the recession is likely to reduce the power of public employee unions in New York City. If the recession operates in this way to oust the CCPOA from their current privileged perch in state politics, then even this economic cloud will have shown a glimmer of a silver lining.
"We can't control ourselves": California Corrections in the National Spotlight
The New York Times gives California's prison crisis and parole reforms front page billing today in an excellent article by Randal Archibold. The litany of problems will be familiar to readers of these posts. Our massively overcrowded prisons are being slowly reduced only under great pressure from federal courts. The main solution is to reduce the capacity of the state to return paroled prisoners for relatively minor crimes by eliminating parole supervision altogether for many and creating more alternatives to reimprisonment for others. Of course problems have arisen with early implementation, and some backlash is brewing. But the key line in what is mostly an up-beat story is that of State Senator Mark Leno (Dem San Francisco) who sums up the problem in one sentence, "we can't control ourselves."
Note the paradox that we are talking about a system of social control, or corrections as we like to call it, whose fundamental purpose is to promote law and order, but which is fundamentally out of control. But it is not the administration of the prison Leno is talking about.
But even with the progress in recent months, State Senator Mark Leno, a Democrat from San Francisco who helped push through changes in the prison system, suggested that further reductions would be a hard sell. Mr. Leno called the changes under way “a noble effort” and the best that could be achieved in the current political climate.
Many lawmakers, he said, still want to lengthen sentences and spend more on incarceration, both politically popular notions.
This is why I cannot yet agree with my friend Stanford Law professor and criminologist Joan Petersilia, who has done more than anyone to create the criminological conditions for rationality in California penal policy, and who is quoted in the article as suggesting California has been through a "seismic shift." The shift is not yet near seismic enough. Or perhaps, we can agree that the system has experienced at 6.4 on that continuous seismic scale, but not the kind of 8.0 that would allow us to truly rebuild from the rubble of our current system which is flawed right down to its molecules. The major problem, as Mark Leno underscores, is not penological but political. So long as parole reform remains the limits of this (I think ironically characterized by Leno) "noble effort", we remain inside a prison crisis whose vicissitudes I may well be charting into my retirement, or furlough-hood (if the state budget caves sooner).
cross posted at Governing through Crime
The Purposes of Planning (the Good Kind): Ordering the City Part IICompliments to the club for wonderful ideas, and to Nicole for a thoughtful response. I have two final notes to add.
On the issue of whether it’s wise to introduce commercial establishments into residential areas, I think it’s important to reground the discussion in the range of things, beyond curbing disorder, that planners do and should think about. There’s sales and property tax revenue, of course, not to mention encouraging small businesses, reducing vehicle miles traveled, creating community, and even encouraging the public to exercise by going places on their sidewalks. Jane Jacobs was quite aware of many of these issues, and I think we should be too before we give up our intuitive attachment to her theory in the face of evidence that commerce may not make some residential areas safer. In addition to the other valuable caveats offered in the book and the posts (in particular, that context matters) these additional factors should give us pause before we abandon our dear Jane.
Secondly, while Nicole’s caution regarding the pitfalls of planning is wise, I think it’s important to rein the discussion back in a bit from where these posts (and perhaps Chapter 7 of the book) have taken us. I agree with the book insofar as it makes a limited point—that big planning as a means of curbing social disorder has a blighted history. To the extent that Chapter 7 is making a broader cautionary point regarding big land use planning in general, I’d observe that it’s difficult, if not undesirable, to rescue cities from obsolete historical forms (including past planning mistakes) through incremental changes. Milwaukee’s “Road to Nowhere,” San Francisco’s Embarcadero Freeway, and other examples in the book—not to mention former industrial zones, decommissioned ports, and failed, late 20th century commercial centers—occupy big swathes of land that require “big planning” to transform these areas into living neighborhoods. These sites often require decontamination, dramatic aesthetic rescue, and infusions of a critical mass of population to create conditions for safety. And realistically, cities can’t afford these areas to lie fallow of tax revenue.
Planners have achieved important successes on some of these redevelopment sites. See, e.g., the Mission Bay redevelopment in my home city of San Francisco. Gone are the railyard/industrial sites and the concrete channel covering a creek to the Bay. Today you’ll find dogs, frisbees, kayaks, and yoga in a creekside park; thousands of units of condos and affordable housing (built with some of the city’s best and only contemporary architecture); and world class UCSF medical and research facilities. Your next visit, pack a picnic and hop on the new light rail extension to get there.
I wonder if it’s bad planning, not big planning, that is really the problem. Building on Nicole’s ideas, I’ll float the tentative theory that bad planning means: (1) using reconfiguration of the built environment as an excuse to curb social (and socially constructed) disorder, particularly to achieve racial or ethnic displacement (a key point of Nicole’s book), (2) cheap, shortcut versions of major architectural ideas and planning theories (like butchering Le Corbusier’s vision with the tower blocks of 1960s public housing), (3) political egotism at the expense of common sense (the big splash vanity projects of Robert Moses and many a mayor), and (4) desperate, short-termist revenue seeking at the cost of urban individuality, as in our ubiquitous auto or big box retail malls. While humility (and historical consciousness) is good medicine in general, I prefer to take Nicole for a cautionary tale about the first kind of bad planning rather than an indictment of big planning in general. When bad goes big, it’s certainly worse, but it’s not bigness that makes an idea bad.
Thanks to Matt, Nicole, et al.
Legally Blind Grading, Take 5: Do Class Participation Docks and Boosts Unfairly Disadvantage Female and Minority Students?
In One Law: The Role of Legal Education in the Opening of the Legal Profession Since 1776, 44 Fla. L. Rev. 501 (1992), Paul Carrington tracks the creation of special admissions programs for minority students in the mid-1960s. He then notes that "[t]o protect against concerns of favoritism for students specially admitted, most schools adopted some form of blind grading."
Observations show that male students dominate classroom discussions, particularly in large classes, in loud classes, and in classes taught by men. During the period in which student observers recorded data about classroom participation, the student body at YLS was 47% female and 53% male....The average number of times that a male student spoke in class was 38% higher than the average number of times that a female student spoke in class (Z statistic=12.4)....That disparity was reduced by 24% (that is, the ratio of male to female participation was reduced to 1.14) in classes taught by female professors (T statistic=2.768; P value=0.007). In loud classes--classes with greater overall class participation--the gender disparity increased by 52% (T statistic=2.664; P value=0.009). In large classes--classes with more than fifty students--the disparity increased by thirty-one percentage points (T statistic=2.287; P value=0.024)....In the three (out of twenty-five) classes in which women “dominated”--that is, their overall participation outstripped that of men--they dominated to a lesser degree....Men are also more likely to volunteer to participate. On average, male students volunteered to speak 40% more than female students (Z statistic=13.17)....Because 72% of classroom interactions originate with students volunteering to speak,...the difference in the rates at which students volunteer--and/or the rates at which professors call on those who do volunteer--accounts for much of the disparity in overall participation....The data show that faculty members are more likely to "compel" men than women to speak in class by calling on those who do not volunteer. The average number of times that a male student is asked to speak without volunteering (“cold calling”) is 17% higher than the average number of times that a female student is asked to speak without volunteering (Z statistic=4.51).
First, faculty members treat comments by female students differently from comments by male students in ways that inhibit female participation in class. Much of this treatment stems from hesitation on the part of some faculty members to challenge women or to engage their ideas. Second, faculty members run their classes in ways that give more attention to students who speak more quickly and unequivocally--behaviors that are more often displayed by men than by women.
Comments on Lindgren on Sowell (or Lindgren and Sowell)
Because Jim Lindgren doesn't generally open comments on his VC posts, let me take the prerogative of saying I'm not sure what he's getting at with his latest post, which makes the interesting choice of quoting Thomas Sowell at length. (Sowell is the author of a new book on intellectuals and society of which Alan Wolfe writes that "[t]here is not a single interesting idea in its more than three-hundred pages," and that it "recycles ancient cliches about the academic world and never questions its author's conviction that those who share his right-wing views are always right." Apart from that, the review is fairly negative.)
Sowell writes: "The corrupt manner in which this massive legislation was rammed through Congress, without any of the committee hearings or extended debates that most landmark legislation has had, has provided a roadmap for pushing through more such sweeping legislation in utter defiance of what the public wants." He says: "Too many critics of the Obama administration have assumed that its arrogant disregard of the voting public will spell political suicide for Congressional Democrats and for the President himself. But that is far from certain." He adds, repetitiously: "The ruthless and corrupt way this bill was forced through Congress on a party-line vote, and in defiance of public opinion, provides a road map for how other 'historic' changes can be imposed by Obama, Pelosi and Reid." And he argues that Obama can salvage his presidency despite the popular disapproval of real Americans (my words) if "he can ram through new legislation to create millions of new voters by granting citizenship to illegal immigrants." Lindgren writes: "While I don’t share Sowell’s seeming hostility to an immigration bill, I do share his feeling that the current trend toward the Republicans may well stall out without their retaking the House or the Senate in the fall."
Well, to begin with, health care has been on the agenda for decades, and certainly since the GOP helped scuttle the Clinton plan (with an important assist from the Clinton administration itself), and this legislation has been thoroughly debated over the past year and change; arguments now for more time to propose something else, which showed up in the recent debate, can reasonably give rise to suspicions that they are disingenuous. "Ramming through" apparently means winning majorities in both chambers, and "party-line vote" apparently refers only to one party, although I recall something about how many it takes to tango. "Defiance of public opinion" not only relies on a skewed picture of public opinion, but also suggests that legislators are mere sock puppets instead of what they are supposed to be: independent deliberators who vote as they believe is appropriate and then face periodic electoral ratification or refusal votes. The likelihood of immigration reform is perennially in doubt, so if this is Obama's nefarious plan to entrench himself in power, I think Sowell might want to hold off a bit on his dire predictions. And I am a little unclear on why Lindgren agrees with Sowell if he disagrees with him on immigration. Does he think such a bill will pass in time? Does he think popular disapproval of the bill will be less than Sowell thinks it is?
Finally, a word about tone. Sowell is of course as entitled to his views as you are or I am or Joe the Plumber is. No more so: like most public intellectuals, he apparently considers himself qualified to predict the political future, but he is an economist and evinces no particular expertise about politics. But I find his ominous tone absurd, and I am surprised Lindgren (and now me, too, I suppose) gave it such prominence. I find it premature and not especially helpful to predict that the healthcare bill will be a profound triumph and success, and doubly premature and unhelpful to suggest that it will bring the downfall of the Republic. This is not serious and dispassionate analysis. It's not even passionate analysis. It's rhetoric substituting for serious thought. One need not expect better, but what we must endure we should at least ignore.
Tuesday, March 23, 2010
FIU Law Review Symposium: Whither the Board? The National Labor Relations Board at 75
This Friday and Saturday, March 26-27, FIU Law Review will host a symposium, entitled Whither the Board? The National Labor Relations Board at 75. The keynote speaker is current NLRB Chair Wilma Liebman, with remarks by Board Member Peter Schaumber. Presenters include Prawf's own Matt Bodie, FIU College of Law Dean (and former Board member) Alex Acosta, and many of the top labor scholars and practitioners.
Kudos and congratulations to my FIU colleague Kerri Stone, and the Law Review editors, for putting together what promises to be a great program.
Ordering the City, Redux
Many thanks to Prawfs for organizing this discussion, and, especially to all of the book club participants for their insights. I’ve been given much food for thought and ideas that will undoubtedly shape my future work. Here are a few initial ruminations sparked by the terrific discussion yesterday:
On Complexity, Planning and Humility
Like Ben, I have, at various points, held “fairly strong doctrinaire positions” about many of the issues that I tackle in Ordering the City. Indeed, I must admit that, in writing the book, I found myself struggling with these positions—especially Jane Jacobs’s intuitively appealing claims about the disorder-suppression effects of city economic life. In a sense, the book beat some of these positions out of me. My encounter with the empirical research linking commercial land uses with crime and disorder, which Lee discusses, was a particularly painful one. But, in the end, Ben is right that I came to appreciate the complexity of the city—and of cities, because different cities are very different organisms.
Appreciating this complexity helps, I believe, to shed light on some of the core puzzles of urban policy: What makes a city neighborhood work? (To quote from Jacobs, “why [do] some slums stay slums and other slums regenerate themselves even against financial and official opposition?”) Are mixed-use or single-use neighborhoods better (and why and where)? What is disorder? Is it always bad? Does it cause crime? What policing tactics “work”? Unfortunately, it seems that the answers to these questions prove as complex and the city itself—a complexity that is only amplified by the fact that, at least in my view, the answers frequently vary by context.
I continue to be a planning skeptic—both because cities are so obviously complex, and city problems so obviously contextual, and because past planning efforts have often so obviously failed. If Jane Jacobs got one thing right—and I think she got many things right—it was that an organic order tends to be superior to a government-imposed one. The history of city planning (and probably also policing) is riddled with colossal mistakes. I gave a talk at the L’Enfant Plaza Hotel in Southwest D.C. last week, and the neighborhood seemed almost palpably haunted by the memory of all the row houses that were demolished to make way for “modern,” sterile cement monstrosities. Closer to home, the city where I live—South Bend, Indiana—tore down most of its urban core during the urban renewal era and, as a result, the University where I teach—Notre Dame—had to build a “new” (and new urbanist) “college town” to make South Bend an incrementally more attractive place to live and work. Today, if I was asked to provide city planners with one piece of advice, it would have to be to practice humility. Thus, while I hope that governments do admit mistakes and change course quickly, I am nervous about Chris’s suggestion that the need to change course quickly weighs in favor of giving the government more flexibility to alter the existing built environment quickly. In my view, Ben is right that “small government interventions might be better than [big ones].”
I do, however, agree with Stephen that complexity (and humility) weigh in favor of land-use devolution, and I think it worth considering whether existing sublocal governmental institutions (for example, business improvement districts or even community policing meetings) might be adapted to perform land-use or quasi-planning functions. It also might be useful to categorize ordering efforts as Lee suggests and to follow that categorization with a careful examination of which kinds of ordering efforts hold the most promise. For example, I am not a big fan of bulldozers. As Chris points out, “physical changes to the built environment are hard to make,” and, I might add, even harder to undo. Chris is also right, of course, that there are ordering success stories…and, ultimately, that it may be the case that physical/aesthetic changes are easier to accomplish than social ones. Social capital is easily generated organically in healthy communities; but the government has a tough time kick-starting it in unhealthy ones.
On Disorder and Economic Life
The question that I struggled with to the greatest extent in the book was the connection between economic activity, disorder and crime. In the interest of full disclosure, I began the project convinced that economic activity was good for city life, and that mixed-use neighborhoods were preferable to single-use neighborhoods. And I resisted evidence (including the studies that Lee discusses) to the contrary. Here, again, I think the answer is context and complexity. To begin, academic discussions of the defintionof “disorder” are frustratingly simplistic—although I am not sure my efforts at expanding the taxonomy of disorder was successful or not. Laundry lists of “social” disorders frequently include economic activities—drug dealing, home businesses—that don’t seem to fit together. As a devoté of HBO’s “The Wire,” I am convinced that the former is suboptimal for neighborhood life (although it might be more accurately categorized as criminal activity rather than social disorder). Given the demonstrated costs of underemployment and economic stagnation in many urban neighborhoods, I tend to think that many home businesses don’t belong in the taxonomy of disorder—at least in some contexts. Indeed, at least one study found that commercial land uses stabilize poor neighborhoods and destabilize wealthier ones. (See also Stephen Clowney’s excellent article on “The Invisible Businessman” on this point.) And, there is always the risk that our perceptions of economic activity (and disorder generally) are influenced by culture, race and class. Michelle’s reference to Lagos, for example, reminded me of a trip that I took to the Jamaica, Queens subway stop in 1996 to meet with my clients (who happened to be illegal jitney-van drivers). I was initially horrified by what I saw – hundreds of passengers pouring out of the subway and rushing to unmarked vans, which zipped away as soon as they were full. “Third-World chaos!” I mentally gasped. But after about ten minutes of watching, I started seeing completely unscripted (by public authorities at least) order in the scene – the passengers knew which van to take; the drivers knew their passengers, and took time to help the elderly, disabled, and women with small children; drivers never accepted more passengers than they had seats; and there was a clear hierarchy of vans (with quality roughly signaled by the condition of vans). The police stood by and watched, perhaps realizing that the necessity of the van service to the passengers outweighed its illegality.
Another complication is how to measure the “costs” of economic activity. In most of the literature, scholars tend to use crime statistics (and surveys about perceptions of disorder). But, as Lee points out, crime statistics tell the whole story. If crime rates are slightly higher in busier neighborhoods because there are more people present in busier neighborhoods, then the increase might reflect a reduction in crime-avoidance (which itself imposes high social and economic costs). Reliance on crime statistics would translate this arguable success into a failure—e.g., “commercial land uses increase crime, probably because they draw together victims and perpetrators.” Moreover, if, as Edward Glaeser and Joshua Gottleib have argued, urban fortunes began to revive in the 1990s because more people developed a preference for urban life, then urban policies designed to suppress disorder and crime by suppressing commercial activity are arguably counterproductive. Cities need to promote urbanness, not suppress it. For more on this argument, see this interesting article on city v. suburban fortunes in the current recession.
On Disorder and Policing Policy
Measurement difficulties and crime-avoidance costs also complicate efforts to evaluate order-maintenance policing policies. I’ve always been frustrated by the “nuh-uh!”/”uh-huh!” vibe, which Ben identifies, in the debates about order-maintenance policies. Much of this debate is, again, driven by crime statistics, but I’ve always wondered whether the debate is missing the point. “Safety” has both an objective component and a subjective one. We can feel safe even when we are not … and we can feel unsafe even when we are. (My eight-year-old son appeared at my bedside at 5 a.m. this morning, trembling with fear because he just had a dream that an evil monster lived in our house and was trying to destroy Indiana.) I think that the perception of safety matters a great deal, and that it has been both neglected by policymakers and undertheorized in the academy. Fear matters for a number of reasons. Fear drives residents with economic means to the suburbs (or safer city neighborhoods). Fear keeps us inside behind locked doors, as Lee and Stephen note, wasting money on security systems and relinquishing public spaces to bad guys. Fear also undermines organic social capital and collective efficacy, which, as Chris notes, is very difficult to generate through public intervention. (Indeed, one great irony of “Broken Windows” is that, in his 1968 essay, “The Urban Unease,” William Julius Wilson disavowed efforts to use policing policy to build up community social capital. “The difficulty,” he argued, “is that there is very little government can do directly to maintain a neighborhood community. It can, of course, assign more police officers to it, but there are real limits to the value of this response.”)
An evaluation of the order-maintenance agenda based upon the perception of security—rather than crime statistics (which, it is worth noting, are both malleable and subjective, as recent events in NYC demonstrate)—might look very different than an evaluation of the order-maintenance agenda based upon crime statistics. Disorder may or may not cause crime, but there is little question that it makes us fearful and undermines collective efficacy and social capital. There is also significant evidence that certain policing tactics (especially foot patrols and community policing) reduce fear. Thus, to borrow from Stephen’s post, “both land use policies and policing might ‘work’ even if they fail to reduce crime itself.” Two important caveats: (1) Perceptions of disorder are contextual and, as Tracy notes, influenced by race. (2) Tactics that cause people to fear the police will backfire. It turns out that fear of the police is also a major predictor of fear of crime.
On Disorder, the Urban Poor, and Racial Minorities
Michelle, Stephen and Tracy are all correct to emphasize that “ordering” efforts have a disproportionate effect on the urban poor, and in particular on minority residents of urban neighborhoods. There is, of course, no denying the history of racial discrimination in law enforcement and urban planning. Abuses undoubtedly continue to occur, even as police departments become more diverse and better trained, planners consult with community members, etc. But, the question remains—what policy prescriptions flow from these realities. I close with a few thoughts on this final, and perhaps most complex, question.
First, as Tracy has forcefully argued in her own work, under-policing is a serious problem in poor minority neighborhoods, and minorities exercise their increasing political power to demand that urban officials prioritize public safety. That said, not all order-maintenance policies are alike. The available evidence suggests that foot patrols and community policing do the most to reduce the fear of crime and casts doubt on militaristic “swat team” strategies, which tend to alienate community residents. Second, an obsessive focus on crime statistics likely generates bad incentives for police (see, again, recent events in New York City). Third, an emphasis on what Lee calls “aesthetic order” likely works to the detriment of minority neighborhoods. As Tracy points out, the aesthetic of the day—new urbanism—is clearly an elite one (despite promises of “charrettes” and community involvement galore). Moreover, the new urbanist’s regulatory alternative to zoning (“transect zoning” or “form-based” coding) increases development costs and could well dampen development hopes in poor communities, which arguably need less land-use regulation, not more. Fourth, the intersections between perceptions of disorder, race, and urban policy arguably weigh in favor of devolutionary approaches to both land-use and policing policies (see “On Complexity, Planning, and Humility”), above. Finally, I agree with Stephen that that the ability of police officers to exercise force, combined with the possibility that the exercise of force will be unjust and discriminatory, is a reason to approach questions of police discretion with great caution. But, I am not sure that Stephen is right that these realities weigh in favor of planners rather than the police officers as disorder-controllers. My intuition runs to the contrary (and, despite Ben’s admonition, I am still a fan of intuition). Planning and regulatory-enforcement have, as Michelle notes, worked to the detriment of poor minorities as well -- indeed, planning can devastate and even destroy entire communities.
So Are YouOne of my favorite captions on a Prawfs post was Matt Brodie's observation that our political discourse is marked by Hypocrisy All The Way Down."
Another overused (and somewhat related) trope is tu quoque, (you too). Faced with an argument that "deem and pass" enactment of health care reform would be unconstitutional, the first response of Congressional Democrats was that "Republicans did it too." Republicans, criticized for failure to mind the banks, ran videos of Barney Frank expressing his desire to "roll the dice" on expanding home ownership. Both parties use tu quoque to deflect criticisms of fiscal irresponsibility. What other response could there possibly be?
Of course, pointing out that an opponent has failed to see the similarity between his own conduct and yours can be an important part of discourse. But only if one continues and uses this inconsistency to explain why, for example, deem and pass is an acceptable tactic or that the federal budget should not be balanced at the expense of economic growth.
I think the popularity of tu quoque has the same roots as our passion for the related theme of hypocrisy. It avoids identifying opposing values and meeting the substance of what the other side has to say. In reflecting on Matt's post, I wrote the following:
<blockquote><p>My sense is that charges of hypocrisy are popular because they do not require us
to talk with one another about the real reasons for our disagreement. It is the
invocation of a widely shared norm by those who have no intention of honestly
debating what divides us. Rather than discuss the substantive differences
between the tickets of Obama/Biden and McCain/Palin, we search for "gotchas" -
things that allow us to dismiss our opponents without ever engaging what they
have to say. It's a form of discourse for those who have no intention of
In preparing for the Nuremberg trials, the lead American prosecutor Justice Robert Jackson and his British counterpart, Sir David Maxwell-Fyfe, worried about the potential use of tu quoque by the German defendants. While Allied atrocities were certainly not comparable in scope or provenance to those of the Germans, they both knew they had occurred. The position of the Russians, who had invaded Finland and had collaborated with the Nazis in the rape of Poland, was particularly sensitive.
Jackson's solution was to simply write into the charter for the International Military Tribunal that tu quoque was inadmissible. QED.
I'd settle for a break.
Cross posted at Shark and Shepherd
The End Of The World As We Knew It?
Prior to Sunday's vote on health care reform, Nancy Pelosi said that we were "at the door step of history." Mark Steyn counseled caution, reminding us that, on Christmas Eve, we were at the "garden gate of history" but then Scott Brown was elected and "we backed down the front drive of history reversing over the neighbor's dog of history."
I am fairly certain that ObamaCare won't work as advertised, but is it susceptible to constitutional challenge? To continue the Speaker's hackneyed metaphor, are we to have anything other than a quick look around the foyer of history?
In Sunday's Washington Post, Randy Barnett outlined some of the issues surrounding the constitutionality of ObamaCare. I am particularly interested in the status of the individual mandate. It is a standard bit of high school civics that Congress possesses only enumerated powers as opposed to the plenary authority of most state legislatures. The reality is a bit more complicated as courts, over the past seventy-five years have found these enumerated powers to be remarkably protean.
But, as Professor Barnett points out, the individual mandate may test the limits of Congressional power. Take the power to regulate interstate commerce. The commerce power has certainly become capacious. Even lawyers whose last exposure to Constitutional Law was in law school are vaguely familiarr with the ways in which the commerce power had been used to reach activity bearing, at best, a weak family resemblance to the transaction of business across state lines. Most recently, in Gonzales v. Raich, the Court held that Congress can prohibit persons from growing and consuming marijuana at home because of its posited impact on interstate traffic in weed.
Still, the individual mandate may be different. Professor Barnett writes that "[w]hile Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company." It's one thing to be subject to regulation because you are providing for yourself what you would otherwise buy in an interstate market. It's quite another thing to argue that, because your refusal to consume a product may affect interstate commerce (if the young and healthy do not insure, the old and sick will have to pay more), you can be made to buy it.
Some scholars and lawyers prefer to emphasize Congress' authority to tax and spend to promote the general welfare. Jack Balkin, for example, thinks that this makes the case for the constitutionality of the individual mandate "easy." For Professor Balkin, there is no need to construct Rube Goldberg-like scenarios of commercial impact. "The government can make you pay taxes," he says. Because the failure to insure will result in a tax (as opposed, I guess, to a stint in Leavenworth), there is nothing to see here.
Perhaps not. There is certainly case law that, while not mandating that conclusion, provides some substantial support. But it ought not to be that easy. The power to tax is the power to destroy. While taxes may have a regulatory purpose, there should be some limitation on the ability of Congress to accomplish by taxation is there truly no limitation on Congress' ability to coerce through taxation what it cannot do through regulation? Should Congress really be able to take, as is the case here, up to two percent of a person's income because she has failed to do what Congress cannot compel her to do? Does a fine become permissible as long as it is connected through the Internal Revenue Service?
Without getting into the doctrinal ins and outs, this should not - and might not be -as easy as my old law review colleague believes it to be. There may yet be room to argue that Congress' enumerated powers impose some limit on its power to tax, particularly when the tax is imposed in an effort to coerce certain behavior or to penalize a failure to act. Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate. But the day that it does will be a tragic one for the Republic.
The reason will not be the survival of ObamaCare. It is, I think, a poorly conceived proposal that will do more harm than good. As written, it seems likely to fail and, if not abandoned, may well lead to a single payer system. But we have survived worse.
It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously - and now ironically - thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what - save some other constitutional restriction - it cannot require you to do - or prohibit you from doing.
I appreciate that many people - including most of my colleagues in the legal academy - see nothing wrong with this. There are, to be sure, still political constraints on Congress. Even if Congress can ration trips to McDonalds, it won't.
The extent to which you are comfortable with this may turn on the extent to which you are comfortable with the centralization of authority and, in a world in which Congressional enactments are increasingly delegations of authority to bureaucrats, your confidence in the capacity of experts to "get it right."
I am not very comfortable. I am not very confident.
And I don't think I am alone. As the popular response to ObamaCare demonstrates, there is a strong tradition - both in public sentiment and (I think still in constitutional theory)- of structural limitations on federal authority.
Our nation still seems to cling to our longstanding notions regarding the limitation of federal power. Given the Founders rather clear intent on the matter, would it really be surprising to see this theory of the Constitution surface in new ways? Is it is possible that the ongoing transmogrification of Article I may lead to a doctrinal response? If courts can no longer hold Congress to a set of enumerated powers, will they seek to restrain federal authority in other ways? Might we see more rigorous judicial scrutiny of what serves the "general welfare" or what is "necessary and proper."
Sounds like Lochner? There is, after all, nothing new under the sun. It is not what I would want, but could it be what we get?
Cross posted at Point of Law, Shark and Shephed and the Marquette University Law School Faculty Blog
Iqbal/Twombly, strange bedfellows, and civil rights
A new voice in the debate over legislation to overrule Iqbal and Twombly is the Alliance Defense Fund, an organization of "Christian attorneys and like-minded organizations" that litigates "civil rights cases in defense of religious freedom, the right to life, and the natural family." (H/T: One of my civ pro students and the Civ Pro/Fed Courts Prof Blog, which links to an NLJ piece on the ADF letter). ADF claims to be uniquely situated in talking about this issue because, unlike many civil rights organizations, it litigates both sides of civil rights claims, often representing corporate defendants (presumably in Title VII claims involving religion in the workplace) or intervenor-defendants where government is not sufficiently vigorous in its defense (as ADF is now doing in the Prop 8 lawsuit in California).
I am particularly interested in Iqbal/Twombly for its negative effects on civil rights litigation and civil rights plaintiffs, a uniquely vulnerable group to any ratcheting up of the pleading requirements. Coverage and discussion of ADF's position has adopted a "strange bedfellows" meme--"Wow, a conservative religious organization agreeing with congressional Democrats and groups such as the ACLU and supporting the return of Conley (or something)."
This is a good reminder that conservative/liberal labels do not work when talking about something like civil rights or civil liberties. Civil rights is a broad, non-monolithic field; the term could mean a lot of things. There are some issues in which, arguably, civil rights/liberties are in play on both sides of an issue. It is unfortunate that the term has taken on a politically one-sided meaning that is not necessarily true or accurate. (I would argue the same is true of the term "public interest," which is associated only with liberal causes and does not recognize that one can work for conservative causes and still work in the "public interest"--I have tried to argue against this partisan or ideological reading of the term, usually in faculty meetings and always unsuccessfully).
ADF and ACLU are not incompatible on this issue, thus the "strange bedfellows" theme is unfortunate. In fact, I would have fully expected these groups to agree that Iqbal is a problem and needs to be changed. Both are engaged in the same enterprise--litigating civil rights/civil liberties issues--and both must deal with Iqbal/Twombly and the burdens it imposes. Both must deal with its vagueness and the increased inferential power/discretion it gives district court judges. Both must deal with the information assymetries that make Iqbal a serious hurdle. Both must deal with the increased likelihood of dismissal of claims. The only reason they might disagree is not political ideology, but litigation position--given that ADF sometimes defends. In that sense, I am surprised we have not (yet) heard from other "conservative" groups that litigate constitutional/civil rights/civil liberties issues on the plaintiff side, such as the NRA or Pacific Legal Defense Fund or Chamber of Commerce.
Hey, maybe procedure can, at times, be politically neutral after all.
A Comment and Plea on the Nature of Our Political Debate
Glenn Reynolds, the Beauchamp Brogan Distinguished Professor at the University of Tennessee College of Law, linked approvingly to a post by Dana Loesch, a conservative pundit, on the Breitbart "Big Government" website:
Yesterday was my son’s 9th birthday and for his present, the government jacked his future. As he sat in the floor and happily opened his gifts, Bart Stupak appeared on television and revealed that he’d sold his soul. The joy was sucked from the room, but my son didn’t notice – thank God for innocence. The faces of the adults in the room fell as Stupak held his presser, as Pelosi gained another YES vote for health control.
The scene was an eerie replay for me; eight-and-a-half years ago that same boy sat in his bouncy seat while cooing and kicking his legs as his father and I watched the twin towers crumble to dust on live television. The feeling was the same.
A lot of people ask why I and others do what we do.
The scene I just described is my answer.
Yes, this is a law prof blog, and no, I don't really think this is the place to complain about this policy or that commentator. I know some folks have complained when politics overruns us law blogs, and I generally agree. But you know, I just feel that at this point, things have gone too far and I need to say something.
A law professor at a state school has linked approvingly to someone who not only says that the health care reform bill is socialist, but compares its passage -- in its emotional resonance -- to the feeling she had when the twin towers fell.
I'm sorry, but this pushes the crazy too far for me. And I worry about what will happen next. I hope that those who post things like this -- and link to them -- will reconsider their rhetoric before the well of public discourse has become too poisoned.
Monday, March 22, 2010
Ordering the CitySet in a comparative planning context, a basic conversation about disorder might look like this. Order: Singapore is modern, clean, and green, with a ban on chewing gum that represents a planning school laughline regarding state oppression. Disorder: Lagos, as captured in a 2006 essay in The New Yorker, is teeming with poverty and desperation (“pandemonium,” fumes, filth) as well as with economic activity and entrepreneurialism (“the hustle never stops” and “everyone is a striver”).
Romaticization and vilification on both ends of the spectrum, sometimes by the same viewers. When Mayor Giuliani’s “quality of life” regulations tried to eliminate the street trades of poverty (from sidewalk selling of used handbags to homeless window washers), was he cleaning up the city for everyone or criminalizing the survival mechanisms of the poor?
On questions of order and disorder, moral, empirical, and legal tensions (both real and perceived) abound: safety and cleanliness weighed against urban vitality and individualism, civil liberties as a constraint on crime control, urban recovery regulation as economic handcuffs on the struggling poor, and personal safety at odds with personal liberty.
Garnett, writing in the domestic debate, gives us organizing theory, vocabulary, and history to understand and manage order and disorder in the American City. In so doing, she manages to diffuse binaries and avoid naming heroes or villains.
As a matter of planning theory, Garnett’s setting is whether the rising tide of planning a la Jane Jacobs undermines policing policies that pursue the Broken Windows thesis. In other words, does an emphasis on mixed-use planning, particularly the introduction of commercial establishments in residential areas, undermine policing that attempts to control minor acts of urban disorder that, when unchecked by the community and by law enforcement, lead to an escalation towards more serious crimes? The heart of that inquiry is among Garnett’s most important contributions in this book: Does commerce generate crime-causing disorder?
As a matter of law and politics, Garnett “sees like a state” by placing policing in the same arena as land-use controls/property regulation (everything from zoning controls to housing code enforcement). She frames the two approaches as local governments’ “two hands” in order construction and disorder suppression. In adaptation to judicial constraints on police discretion, cities have increasingly resorted to land-use and property controls as a means of disorder suppression. Cities mistakenly believe, she argues, that order construction is the same thing as disorder suppression, and in so doing, they discount the harms that order construction can impose on the intended beneficiaries of disorder suppression. For instance, planners should be wary that controls on small scale economic life, from street vending to shopkeeping, diminish social capital and economic opportunity for poor people who live in disorder-prone neighborhoods.
Normatively, Garnett doesn’t shy away from asking when (and how) cities should control urban disorder. She gives a specific but modest answer, suggesting ways to encourage small scale economic activity in cities (including home businesses), to preserve non-conforming uses, and to reduce regulation of mixed-use zoning and the rehabilitation of vacant buildings. She wisely cautions that humble and highly localized incrementalism, not grand plans and central theories, should be the stock and trade of urban revitalization.
If I have one criticism to make, it’s that sometimes,
Housing code enforcement, for instance, has been used as a
Nevertheless, by tying community policing to land-use controls, Garnett sweeps broad terrain. She does so with great depth in both the empirical and theoretical literature. Along the way, her readers will enjoy highly readable, educational vignettes of American urban policy. You’ll find stories (such as Mayor Giuliani’s attempt to reduce the presence of street vendors in New York City), ideas (from gang injunctions to empowerment zones), and historical chronologies (like the life, death, and reconstruction of American public housing). It was a learning experience and a pleasure.
Order and the Poor
It’s a pleasure to be part of this discussion of Nicole Garnett’s impressive Ordering the City. The book is so rich and packed with goodies that it’s difficult to know which sail to hoist first. One of the surest strengths of the book is that it puts some theoretical meat on the definition of urban “disorder.” Competing groups of scholars have shouted themselves hoarse arguing about whether small disorders lead to more serious crime—yet coherent explanations of what disorder is remain in short supply. Garnett attacks this hole in the literature on several fronts. Most importantly, she argues that economic activity—especially in poor neighborhoods—is too often seen as a harmful disorder, rather than an essential part of the vibrancy that distinguishes city life. Her examples of the different street vendors in New York City are comprehensive, nuanced, and engaging; they make for a real academic page-turner. Garnett also brings home the idea that disorder is contextual. The busway walls covered with Steelers murals that are the source of so much pride in Pittsburgh would certainly be considered a sign of urban decay in my fancy Lexington neighborhood.
Like Ben, I also found the discussion on the costs imposed by the fear of crime deeply enjoyable reading, full of many “a-ha” moments. This section begins by cataloguing how the fear of crime undermines urban life; communities waste billions of dollars on private security systems and social capital erodes as neighbors stay indoors. Backed by this information, Garnett makes a surprising intellectual move; she posits that the principal function of order maintenance policies is to reduce the sum costs of crime and the costs of avoiding crime. Thus, both land use policies and policing strategies might “work” even if they fail to reduce crime itself—dissolving the fear of crime has real, tangible benefits for communities.
While the great contribution of the book is in fleshing out
the meaning of disorder and how it affects cities, Garnett also teases out a
broader historical narrative from this material. More specifically, she argues that municipalities have
adopted land use regulations as a (inferior?) substitute for order maintenance
policing strategies that the Supreme Court found unconstitutional in the 1960s
and 70s. Most of my quibbles
with the book come out of this argument.
First, I think Garnett is simply more confident in the ability of police
to exercise discretion without abusing their power. I think I might prefer a planner enforcing order not because a
policeman can throw me in jail, but because a policeman can shoot me with so
few consequences. Second, I’m not
entirely convinced that the rise of property regulations as order-maintenance
strategy is tied to the constitutional revolution of the Warren Court. Arguably, at least, the jump in
trespass-zoning schemes results from the constitutional blessing provided by
the Supreme Court earlier in this decade. This might simply be an example of power-starved local officials jumping at any regulatory tool they can get their hands on.
A final thought: I would have liked to see Garnett focus her lens on how municipalities should navigate the tension between elites and so-called ordinary people when setting order maintenance policy. In so many of the conflicts described in the book—the rise of the new skid rows, the regulation of street vendors, and the ban on home businesses—the good of poor neighborhoods seems at cross purposes with a city’s desire to compete against suburbs for middle class residents. During the first part of the book I felt the argument was building toward a defense of land-use devolution—turning over more land use power to neighborhoods. Garnett acknowledges devolution as a possible solution but doesn’t it give the full-throated defense that I thought her insights warranted. Why?
To sum up, Ordering the City is a fascinating read and makes
a huge contribution to the literature on the urban form. For too long land use issues have existed beyond the realm of
criticism in political discourse. Hopefully,
the convincing arguments provided by Nicole Garnett will begin to change that.
Ordering the City
Since the book as a whole grapples with the extent to which governmental efforts to impose (various sorts of) order add or subtract value from urban areas, it might be interesting to approach the taxonomic task from a different angle by classifying not disorder but ordering efforts. The categories might look something like this: “aesthetic ordering,” “social ordering,” and “law and order ordering.” Again, the lines between the categories are not clear-cut, and a given law or policy might be motivated by more than one objective. Nonetheless, it seems useful to bring out into the open the fact that not everything that passes as order maintenance has as its true objective the maintenance of either law and order or pleasing aesthetic environments. Land use controls have long been wielded to maintain a particular type of social ordering that has a particular set of distributive consequences. Garnett’s approach optimistically suggests that if we could only figure out what kinds of disorder are objectively benign, we could alter policy incrementally to reduce the costs associated with unnecessary forms of disorder suppression. I am less optimistic. The most potent barriers to change may stem not from insufficient knowledge about the nuanced and multifaceted nature of disorder but rather from political power and entrenched economic and social interests. It is also worth emphasizing that not all ordering is imposed by governmental bodies. Instead, the various sorts of governmental ordering collectively produce the conditions under which interdependent locational decisions are made by individuals and businesses; this governmental role in structuring self-ordering deserves policy attention as well.
Nicole Garnett’s important book covers a tremendous amount of ground, and does so very skillfully. It’s a must-read for anyone who cares about urban issues. I want to focus my initial remarks on two facets of the project.
The first is taxonomic. In Chapter 3, Garnett offers a “four-category taxonomy of disorder” that includes “physical disorder,” “social disorder,” “crimes,” and “economic activities.” Her well-taken point is that there’s disorder and then there’s disorder; not all phenomena answering to that name pose equivalent threats, or perhaps any threat at all. Yet her analysis emphasizes that disorder is not only heterogeneous, but also at least partly in the eye of the beholder. For example, Garnett cites Sampson and Raudenbush’s 2004 study (http://www.wjh.harvard.edu/soc/faculty/sampson/articles/2004_SPQ_Raudenbush.pdf) finding that perceptions of disorder are significantly influenced by racial and economic factors. Given the level of subjectivity in perceived disorder, one wonders whether any effort to separate “bad” disorder from “good” disorder for policy purposes is doomed to produce unmanageable blurring of the lines between these subcategories (cf. “blight” in eminent domain).
The second facet of the book that I want to highlight involves its discussion of mixed-use neighborhoods. Although sympathetic to Jane Jacobs’ intuition that the larger number of “eyes upon the street” in mixed-use areas will reduce crime, Garnett discusses a body of empirical work, regularly ignored in the legal literature, that challenges Jacobs’ thesis. Some studies suggest that mixed-use areas do not, in fact, enjoy lower crime rates than single-use residential districts. While these results complicate the question of how to arrange urban life, they do not necessarily suggest that single-use zoning is superior. The reason is simple, but often overlooked in discussions about urban ordering: we care about more than crime levels. Garnett brilliantly invokes Guido Calabresi’s approach to accident costs to make this point. As Calabresi explained, we do not want to avoid accidents at all costs; rather, we want to minimize the sum of accident costs and accident avoidance costs. Similarly, we should be concerned not just with reducing crime, but rather with reducing the sum of crime costs and crime avoidance costs. As Garnett notes, a huge but hidden set of crime avoidance costs involves simply staying home. Policies that make areas feel safer help to draw people out, reducing those costs. Even if crime levels stay the same or increase, the change may well have been worthwhile when crime avoidance costs are considered as well.
I would take Garnett’s argument further and observe that the social stratification that accompanies single-use zoning, to the extent it is motivated by fear of crime, represents an enormously costly crime-avoidance apparatus, and one that delivers its benefits quite unevenly. Here again, however, we must confront the possibility of political barriers to change. If a reconfigured urban landscape could reduce the overall costs of crime and crime avoidance but would also alter the distribution of those costs, we would expect resistance from those who stand to lose.
Ordering the City
Nicole Garnett has written a truly insightful book, full of colorful examples, and careful analysis. It is broad in scope and a discussion of the book could easily go down any number of substantive paths. I want to pick just one of the many interesting points to explore: why she ultimately is less willing to embrace innovation in land use policy than in other forms of government responses to urban disorder.
One of the book’s central themes is the complex relationship between disorder prevention through a “Broken Windows” approach to policing, and through local land use controls. She points out that disorder really exists on a continuum – from actual crime (assault, theft, etc.), to disorderly conduct (loitering, loud music, harassing behavior, etc.), to disorderly land uses (vacant buildings, poor housing conditions, etc.). Government responses to disorder, then, can come from policing, from land use, or both. Garnett appears to be in favor of innovation in policing practices – at least in poor urban communities. She is more cautious about innovation in land use, however, and ultimately endorses incrementalism, arguing against radical change in any direction.
The principal and obvious distinction between land use controls and other kinds of regulatory responses to disorder is the apparent stickiness of land use decisions. There is undoubtedly something to this. The physical destruction of whole neighborhoods through urban renewal is effectively irreversible. Moreover, bulldozer notwithstanding, the built environment tends to be particularly resistant to change. Development that occurs based on existing land use controls becomes all but immune from subsequent regulatory change. The legacy of progressive era public housing is still very much with us. The result is easy to predict: land use policies that turn out to have been misguided can cast a very long shadow into the future.
On closer inspection, however, the effect on the future may not be – or at least may not need to be – quite so long, and the difference between land use and other regulatory responses may not be quite so clear. Physical changes to the built environment are often hard to make. The fact that so many failed housing projects remained standing for decades is testament to the inertia of land use decisions. However, as Garnett convincingly demonstrates, it is often the less tangible forms of community glue that has the most to do with a community’s vitality and success. She uses the term “collective efficacy” to describe a community’s ability to retain “effective social controls.” (p. 134). But collective efficacy is very hard to create. Indeed, while it is undeniably related to disorder, the causal connections are complex and contested, with strong positive and negative feedback loops. But once destroyed, collective efficacy in a community is very hard to restore. Misguided innovation in policing practices, in educational policy, or in other spheres of municipal control are as likely to destroy collective efficacy as changes in land use policies. The same is true of a misguided commitment to the status quo. The effects of policy decisions along these dimensions may not be any easier to reverse than land use decisions.
Changes in the built environment also need not have as much of a lock-in effect as the law often provides. There are, of course, ways in which existing development patterns can be changed. Eminent domain is the ultimate backstop, and provides governments with flexibility to impose new land use plans despite existing development patterns. Other tools serve a similar role, however, at much less cost. For example, amortization provisions for prior non-conforming uses can help to reduce the lock-in effect of outdated or misconceived land use policies. It is therefore particularly interesting that one of Garnett's specific prescriptions is to increase the protection of non-conforming uses. (p. 198-99). In her view, this will protect property owners from fickle and wrong-headed changes to land use planning. It would, indeed, have that effect, and it would also foster valuable and important reliance on government land use policies. But it comes at a substantial cost. It reduces the flexibility of governments to change course and to try different approaches to land use. In that regard, Garnett's prescriptions are entirely consistent with her commitment to incrementalism. Because it is hard for governments to change course, they should do so only carefully. But a different kind of response is possible as well: make it easier for governments to change course so that they can be more innovative. I have recently argued for ratcheting down protection for prior non-conforming uses, at least partly for this reason.
While Garnett's book paints a bleak picture of the history of government innovation in this regard, there are success stories as well, as Garnett also explores. The question, ultimately, is one of opportunity costs. Is innovation and the risk of getting land use policy wrong worse than the risks of not innovating? It will depend on a lot of factors, including the costs of changing course. But I suspect that there are at least some situations in which trying to innovate is better than the incrementalism that Garnett embraces, and the communities should be given the tools to try.
Garnett has done a valuable service by examining the wrong-headed (and the successful) approaches to urban disorder over the years, and by considering them across disciplines. She is convincing when she argues for caution. But there are times, too, when the risks of getting it wrong are even greater than the risks of not being bold. At the very least, after Garnett's excellent book, we have a clearer sense of the stakes.
Third Circuit on sexting
The Third Circuit this week affirmed the preliminary injunction prohibiting a Pennsylvania District Attorney from prosecuting a teen-age girl, in one of the first widely publicized sexting cases (which I wrote about here and here last year). Slate's Dahlia Lithwick weighs in on the Third Circuit decision.
Cell-phone photos of three teen-age girls had been sent around to about 15 boys in the school. The DA* threatened to bring felony child porn charges against all the students (the boys who received the photos and the three girls who took them) unless they agreed to participate in an "education" program. In the program (divided into male and female groups) the girls would "gain an understanding of what it means to be a girl in today's society, both advantages and disadvantages," including writing reports about appropriate female behavior and why what they did was wrong. Instead, the three girls sued, although only one of the three still had a live controversy in the court of appeals (the DA had promised not to prosecute the other two).
The court avoided what I had called the "lurking" Younger abstention problem. The informal adjustment proceeding into which the DA sought to place the girls had not yet begun, thus was not a pending proceeding (the lawsuit arose from his efforts to initiate those very diversion proceedings, which required consent by the girls and their parents). More importantly, informal adjustment proceedings--which utilize the court's social-service and supervisory resources rather than its formal and coercive powers and allow no opportunity to raise constitutional issues--are not the type of judicial proceedings for which federal courts should abstain. This may be an interesting problem for Fed Courts next year.
On the merits, the court, through very careful framing, tried to avoid several potential problems with the First Amendment claim. First, the case was not about the infringement of the girl's First Amendment liberty to take or send the original sexually explicit photographs of herself. Rather, it became a compelled speech case--the constitutional problem was the prosecutor compelling the girl to participate in the education program, which included having to write an essay discussing why what she did was wrong and what it means to be a girl and how to show "sexual self-respect". The girl thus had a First Amendment liberty to refuse to participate in the program.
Second, the retaliatory prosecution was defined as an as-yet-undefined future threatened prosecution if the girl did not participate in the education program. This is important, because the prosecutor already had threatened prosecution once, at the start of the controversy--a threat that could not be retaliatory, because it was not in response to the protected activity (refusing to engage in compelled speech by participating in the education program). So the constitutional violation was the DA's threat to begin a future retaliatory prosecution if the girl refused to participate in the diversion program and write the compelled essay.
But this framing raises some tricky issues. First, the court had to explain why the prosecutor's actions here (giving a potential defendant the choice of "Enter this diversion program, including acknowledging what you did wrong, or be prosecuted") is any different than any other deal that prosecutors frequently reach with defendants or juveniles involving diversion programs. It generally is not deemed retaliatory if a prosecutor, having made an offer of a diversion program that is rejected, then initiates a prosecution for the underlying activity. Second, the court recognized the strong presumption of regularity behind charging decisions and the limited power of federal courts to second-guess those decisions.
I am not sure I am convinced by the court's answers to these concerns.
1) Implicit in the entire discussion is an assumption that any prosecution on child-porn-related charges would be invalid, although the court simultaneously disavows any position on that question. It insists that any prosecution would be retaliatory because the DA lacks probable cause (at least at this time) to believe that the child porn statute had been violated by the photos at issue. This was partly because there was no evidence that the girl had possessed or distributed (as opposed to simply posing for) the photo. But it also depends on the assumption that taking and sending a photo of yourself cannot constitute child pornography. I share that conclusion as a matter of substantive law, but I think the court needed to be more explicit.
2) Because the diversion program involved compelled speech, this ceased to be an ordinary "submit-to-adjustment-or-be-prosecuted" because the girl had a constitutional right not to participate in the program. Of course, all criminal suspects have constitutional rights to refuse to consent to informal resolution and to go to trial and put the state to its proof. What the court said makes this case different is that the girl had a First Amendment right not to participate in the program because of the compelled-speech component.
3) Most diversion programs require the participant to admit and discuss what he did wrong. But, the court insisted, the required essay here would have been unique because admitting she had done something "wrong" in this case could not have been a discussion of legal wrongs. Rather, it was only a moral or sociological or social wrongs having nothing to do with the criminal or juvenile justice systems. Again, however, this required the implicit conclusion that she could not have violated the child-porn statute on these facts.
4) The court described this as one of the "rare instances" in which a federal court can assess the quantum of evidence underlying a threatened prosecution and find that quantum so lacking as to make the prosecution retaliatory, thus emphasizing the uniqueness of the case (which I suppose is true).
In the end, I am not sure I buy this result or the reasoning. Any prosecution of this girl should fail--under the statute and as a First Amendment matter. But I am not convinced that the diversion program at issue is so unique as to raise an independent compelled-speech problem. And I am not convinced that the mere threat of prosecution (the thing that prosecutors do every day) states an independent First Amendment violation that a federal court can enjoin in a § 1983 action.
* Now former DA, actually He lost his reelection bid in the fall, something that happens less than 10 % of the time, probably probably because of his unconscionable behavior in this case. Of course, we might wonder why his successor continued to pursue the case to the Court of Appeals.
Meares on "Ordering the City"
The following post is from Tracey L. Meares, Deputy Dean and Walton Hale Hamilton Professor of Law, Yale Law School:
I applaud Nicole Garnett for her smart and thorough review of the relationships between land-use regulation and disorder. There is much to chew on here. As I did, I found myself reflecting on one study with which I was familiar before reading the book and which Garnett cites twice. The study, co-authored by my former colleague, Robert Sampson, and Stephen Raudenbush, is unique. Sampson and Raudenbush test the hypothesis that perceptions of neighborhood disorder are socially constructed. Specifically, they sought to determine whether, once adjusting for a measure of observed physical disorder, racial composition impacts individuals’ reports of disorder. As it turns out, neighborhood racial context helps shape residents’ perceptions of disorder. Using data collected from Chicago neighborhoods, Sampson and Raudenbush demonstrate that as the percentage of black residents in a neighborhood increased, so too did perceptions of disorder by residents in each ethnic group residing in that neighborhood including blacks. As far as I know, this is the only study of its kind, but I don’t think it is necessary to demand several replications before pursuing the point. People’s perceptions of disorder are fueled by the physical disorder they see, unsurprisingly. More surprisingly, however, people’s perceptions of disorder are driven very powerfully by the number of black neighbors they have.
I think this point complicates some of the prescriptions Garnett advocates in her book. It is true that historically zoning was used to disadvantage racial and ethnic minorities – especially African Americans, so Garnett’s skepticism of zoning is potentially congenial to a program that advances the interests of this group. On the other hand, as racial and ethnic minorities gain political power in many urban centers, there is reason to be more sanguine about locally-controlled zoning, just as one might be more comfortable with municipal policing today than that of 40 years ago. Garnett explains near the end of the book that the new urbanist approach is to regulate building form, rather than land use. But given the Sampson and Raudenbush research, I worry that the aesthetic demands of the new urbanists might also be skewed by social construction. Replacing one form of expertise-driven regulation for another might not lead to the kind of participatory regulation that is one sure solvent of the binds created by decades of disenfranchisement. Before I jump on the band wagon, I think I need to hear a bit more about how the new approaches address old and durable problems.
Randy Barnett and Health Care Constitutionality
Am I reading Randy Barnett correctly to say that the health care bill will be found constitutional unless the Supreme Court decides to act unconstitutionally itself? Here's his conclusion:
Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won't be five votes to thwart the popular will to enact comprehensive health insurance reform.
But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won't go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.
If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.
You might have heard of it: Bush v. Gore.
I know he says that the individual mandate violates the Commerce Clause, but even he has to recognize this is a minority opinion. So he's holding out hope for Bush v. Gore II? Yikes.
UPDATE: Orin Kerr says: 1%.
Complexity and the City
Thanks to Matt for the invitation to participate in this book club on Nicole Stelle Garnett’s Ordering the City. Thanks also to Nicole for writing such an engaging and enjoyable book.
Ordering the City is refreshingly non-doctrinaire. If there is one overriding theme in the book, it is that the problems facing cities are complex, and that the solutions to these problems, if they can be found, are likely to be equally complex and multi-faceted. There is a tendency among academics, government officials, and pundits to make categorical arguments about cities (and, I suppose, about pretty much everything else), and it isn’t hard to find smart people advocating opposite sides of any give issue. Community policing reduces crime! Community policing doesn’t reduce crime! Eminent domain should never be used as a tool for redevelopment! Eminent domain is an important tool for redevelopment! Let the market make all land use decisions! Use planning to avoid market failures!
I have personally held, at various points in my life, fairly strong and doctrinaire positions about these issues one way or another. And I have been thinking about these issues for almost my entire life. My mother was a city planner, first for Pittsfield, a small city in western Massachusetts, and later for the Boston Redevelopment Authority. From the time I was in elementary school, dinner table conversation was frequently about urban renewal, zoning, historic preservation, and the various idiocies occurring at City Hall. I was probably one of the few American children who could identify Jane Jacobs. When my mother died last year, I inherited her author-signed copy of The Death and Life of Great American Cities, a classic book that seems to be one of the biggest influences on Ordering the City.
Reading Ordering the City crystallized something that has been in the back of my mind for the last few years: the doctrinaire positions that I and others have held about these issues are not so much right or wrong, but instead often miss the point. There are no easy answers, and it is a mistake to approach any broad and complex issue from one narrow perspective. This isn’t to say that theories or big ideas aren’t important – they are. It’s just that context matters, and what works in one situation might not work in another.
Take, for example, Jane Jacob’s influential idea that “economic activity will increase, not undermine, neighborhood-social ties and will suppress disorder.” (OTC, p. 5).
Jacob’s position always made a great deal of intuitive sense to me, and I think it has a lot of truth to it. But it is a mistake to reason from this important observation directly to the conclusion that economic activity is always a good thing for a neighborhood. I lived for 13 years in New York City’s West Village, just south of the Meatpacking District. In the early- and mid-1990s, the Meatpacking District was largely vacant at night, and did not feel safe at all. By the early 2000s, the Meatpacking District was a hopping commercial district that was vibrant and that felt safe. But the same kind of economic activity, just two blocks south, might seem problematic in established residential areas where noise and crowds raised quality of life concerns. The economic activity surrounding a restaurant might be welcome, where the economic activity surrounding a nightclub might not. The right answer for Little West 12th Street might not be the right answer for Jane Street, even though the distance between the two is only a couple of hundred feet. And, of course, what might be the right answer for the affluent West Village might not be the right answer for a poor neighborhood somewhere else in New York City, or somewhere else in the world.
Community policing is another example. There is some debate about whether community policing reduces crime. As the discussion in Ordering the City emphasizes, however, focus on crime reduction alone would miss important parts of the story. Community policing makes people feel safer, and that feeling of safety might matter as much or more to people than actual safety measured in statistical crime rate data. Regardless of their specific impact on crime rates, community policing and other order-maintenance policies might “make cities more attractive places to live, thereby improving the lives of current residents and helping them compete with suburban alternatives.” (OTC, p. 129). Focusing on crime rates alone – a logical and intuitive thing to do in considering policing strategies – would be a mistake.
Faced with a highly complex balance of competing social goods and preferences, it is tempting to try to rely on the market to order the land use of a city, because the market would generally be better than the government in reflecting the varied preferences of the city’s residents. The organic growth of vibrant city neighborhoods championed by Jane Jacobs was largely the product of market forces, not government planning. But markets fail, and pretty much everyone except the most hard-core libertarian would concede some role for the government in ordering the city. The difficulty comes in trying to get government actors to use a light hand, and to free up space for the market to create the vibrancy that make cities amazing places.
Even if complexity makes it a mistake (or at least risky) to rely on broad and categorical theories to order the city, academics can give important advice to policymakers. As I noted above, ideas are important, even if careful thought is required before these ideas are applied in any given context. Two lessons from Ordering the City deserve special note.
First, small government interventions might be better than big government interventions. Take, for example, the use of eminent domain. The sad history of urban renewal counsels against the broad use of eminent domain for mega-development projects. More recent takings like those in New London that led to the Kelo litigation suggest that this lesson has not been fully internalized by government actors. On a more modest scale, though, the selective use of eminent domain can spark the organic revival of an entire neighborhood. New York’s Upper West Side is probably a better place now than it would have been if the use of eminent domain to clear the space for Lincoln Center had been much broader in scope. Mega-projects also tend to lead to a kind of group-think that can be incredibly dangerous. My mother’s graduate school thesis was on the relationship between mega-project urban planning and madness-of-crowds phenomena like the Dutch tulip craze, and the comparison has always struck me as apt.
Second, it is a mistake to base urban policy on intuition and on reasoning by anecdote. Government officials, especially, need to be cognizant of how their own backgrounds can color their views on policy issues. The different preferences of people from different backgrounds comes up in various contexts in Ordering the City – Nicole, for example, notes that “My parents, who both grew up in rural Kansas, are likely to have lower thresholds [for background noise] than someone who grew up on Manhattan’s Upper East Side.” (p. 75). (I have long had a working, and purely anecdotal, theory that vacationing Americans from big cities like Rome, where suburbanites tend to prefer Florence.) Policy makers need to take these preferences into account not only in evaluating what city residents want, but in how their own background and upbringing might shape their views of ideal city environments. In both Ordering the City and her other work, Nicole has noted the potential for conflict between the values of the urban elites who make the plans and the non-elite residents whose neighborhoods are being planned. Elites, for example, might place a higher value on certain environmental and aesthetic qualities than on conflicting qualities such as affordability. It should be a fairly trivial point that the preferences of the residents of a community should be the focus of efforts to order the city.
Welcome to the Book Club on "Ordering the City"
Today begins our book club on Nicole Stelle Garnett's "Ordering the City: Land Use, Policing, and the Restoration of Urban America." Click here for more information on the club. We hope you'll join us in the comments.
Sunday, March 21, 2010
On Conspiracy Theories and the Prison Industrial ComplexBusiness Insider is not one of the usual places where I go for news, but I got there this morning via the Prison Law Blog. The newssite suggests that hedge funders like Bill Ackman might be displeased with the recently dropping prison rates. The reason? Counting on growing imprisonment rates, Ackman has invested heavily in Corrections Corporations of America. Here is his presentation on the company. One of the slides bears the title, "Tenants Unlikely to Default". Bill Ackman's Presentation on Corrections Corp of America (CXW) @ the Value Investing Congress Much has been written about the business aspect of prisons, and especially on privatization. The broader context is discussed in Nils Christie's Crime Control as Industry, which defines the prison system as a mechanism of "depersonalized pain delivery". A more personal-political statement, highlighting racial differences as well as the economic angle, can be found in Angela Davis' The Prison Industrial Complex. For our purposes, this is an important discussion to have when policymakers are contemplating contracts with CCA for out-of-state institutions as overcrowding relief. The question is whether it is accurate to see Bill Ackman's cost-benefit calculation as proof of an intentional conspiracy to keep the prison industry alive and well. And if so, who's in on the conspiracy? My sense is that a more subtle and nuanced description will do better. While CDCR employment depends on prisons, not all CDCR employees cynically hope for overcrowded prisons. If anything, CCPOA decry prison overcrowding, if only because it makes the correctional staff's job more difficult. Yes, there are those who make profit off the size of our correctional apparatus. But it's important to distinguish actors with financial interests from actors within large bureaucracies who operate out of inertia, and some of whom probably rejoice in the news of population decline.
Saturday, March 20, 2010
NYRB series on prison rape
The prison population may be shrinking, see Hadar's recent post, but it's still pretty rough in there. Prison rape is one of those pesky moral disasters that somehow the penal system can't quite manage to fix, although the New York Review of Books two-part essay by David Kaiser and Lovisa Stannow points out that some prison systems have nearly eliminated rape, while others, e.g. Texas, don't appear to be trying very hard. Here are the links: The Rape of American Prisoners, and The Way to Stop Prison Rape. The essay is a great (and disturbing) overview of the factual, legal, and political aspects of the problem--I'll probably assign it in my seminar.
The 2003 Prison Rape Elimination Act (PREA) triggered a massive study of prison rape, and created the National Prison Rape Elimination Commission. Kaiser and Stannow work for Just Detention International, a human rights organization that has been involved with the Commission in studying the new data and drafting reforms. The introduction starts with a harrowing description of the pervasiveness of rape in juvenile facilities, mostly committed by staff, thus adding a new and urgent twist to the school-to-prison pipeline problem. From the introduction:
Across the country, 12.1 percent of kids questioned in the BJS survey said that they'd been sexually abused at their current facility during the preceding year. That's nearly one in eight, or approximately 3,220, out of the 26,550 who were eligible to participate. The survey, however, was only given at large facilities that held young people who had been "adjudicated"—i.e., found by a court to have committed an offense—for at least ninety days, which is more restrictive than it may sound. In total, according to the most recent data, there are nearly 93,000 kids in juvenile detention on any given day. Although we can't assume that 12.1 percent of the larger number were sexually abused—many kids not covered by the survey are held for short periods of time, or in small facilities where rates of abuse are somewhat lower—we can say confidently that the BJS's 3,220 figure represents only a small fraction of the children sexually abused in detention every year.
What sort of kids get locked up in the first place? Only 34 percent of those in juvenile detention are there for violent crimes. (More than 200,000 youth are also tried as adults in the US every year, and on any given day approximately 8,500 kids under eighteen are confined in adult prisons and jails. Although probably at greater risk of sexual abuse than any other detained population, they haven't yet been surveyed by the BJS.) According to the National Prison Rape Elimination Commission, which was itself created by PREA, more than 20 percent of those in juvenile detention were confined for technical offenses such as violating probation, or for "status offenses" like missing curfews, truancy, or running away—often from violence and abuse at home. ("These kids have been raped their whole lives," said a former officer from the TYC's Brownwood unit.) Many suffer from mental illness, substance abuse, and learning disabilities.
The Commission has completed its recommendations which contain new national standards. Attorney General Eric Holder has until June to issue them, but that may not happen. From the second piece:
The commission's recommended standards have been submitted to US Attorney General Eric Holder, who by law has until June 23, 2010, to review them and make any changes he deems necessary. Then he must issue them formally, following which they will become nationally binding. Now, however, he is being pressured to weaken the standards. And the opposition to the commission's recommendations is led by corrections officials: in particular, by professional associations such as ASCA, which has accused the commission of being "one-sided and myopic" in its approach, and gone so far as to call it "childlike."
These corrections officials seem to have a great deal of influence over the current Department of Justice. The review it has undertaken since June 2009 resembles the commission's in many ways, but what had been an open and inclusive process under the commission is now largely closed. We know which agencies are participating in the Justice Department's internal working group on the standards—including officials from the Bureau of Prisons, who are also opposed to important aspects of the commissions recommendations—but we still do not have a list of the group's members. Neither survivors of prisoner rape nor their advocates now have any formal role. It appears certain that Holder will request an additional year, or perhaps even more, for his own review.
Health care reform and pedagogical tools
Rick's post on his missed opportunity to use deem-and-pass in class brings up a question I have been thinking about for a while.
I taught Legislation once, long ago (although I might consider doing it again), using the Eskridge/Frickey/Garrett casebook. The book opens with a lengthy narrative on passage of the Civil Rights Act of 1964--at the time, one of the signal pieces of federal social legislation that relied on all sorts of legislative-procedure dancing (filibusters, committee-assignment choices, committee chair power, committee chair assignments, party affiliations, House/Senate agreement).
Congress is potentially on the verge of passing (ken ayina hora) the most significant piece of social legislation since Johnson's Great Society. And it has had similar procedural dances, of which deem-and-pass is only the latest (and most controversial).
Assuming the bill passes, should the updated version of the casebook use a new legislative story on the events of 2009-10? Is this too new an example? Is the legislation too controversial (thus allowing political/partisan passions to distract from the procedural issues)? Is there something about the process that makes it a bad example?
Is "Deem and Pass" Unconstitutional?
Mike McConnell seems to think that it might be. He offers an argument that the procedure might violate the requirement that both Houses of Congress vote on the same bill. Personally, I would have thought that the "enrolled bill" rule of Marshall Fields would have obviated any constitutional problem, but, given my enormous respect for Mike's analytical smarts, I'll give the question more thought.
Meanwhile, I am kicking myself that this debate is happening in March rather than January, when I covered the rules of congressional procedure in Administrative & Regulatory State. Back in January, I told my class that these apparently boring and incomprehensible rules were the life and soul of legislation. I told them that the Rules Committee could hold together their Party just so long as they were able to formulate substantive outcomes as procedural technicalities. Back then, I could tell that they were all bored and confused. If I had only given them the "deem and pass" procedure rather than House Rule House Rule XVI, clause 6 (on the "amendment tree," which is what I actually gave them), I bet that they would have been glued to C-Span trying to analyze the operation and policy merits of the rule.
Darn. Better luck next year.
Friday, March 19, 2010
How not to attack local control of education
Susan Jacoby's op-ed piece in today's New York Times beautifully illustrates how not to attack local control of education. Jacoby calls for a national curriculum, national teacher standards, and national investment in teacher training, arguing that local and state control of education "is ill-suited to the needs of a 21st-century nation competing in a global economy." She unfavorably compares the United States' system of K-12 education to that of France by noting that "No Frenchman could conceive of a situation in which school officials in Marseille [sic] decide" on local curriculum the way that the Texas school board can choose to make Texas' textbooks more conservative.
Aside from misspelling Marseilles' name, Jacoby's piece follows the usual script first written by Horace Mann when trying to import a Prussian model of the Common School into Massachusetts during the 1830s: Serve up a Yankee's delusional fantasy of European bureaucratic competence and Jacobinical nationalism as a standard by which to measure American schools' alleged shortcomings while ignoring real conditions in America. If such pieces are intended only as a way for elites to blow off some frustrated steam about goings-on in Texas, then their failure to come to grips with, or even mention, the problems of educational centralization can be ignored as irrelevant to their purpose. For those, however, who want to write a serious critique of American educational decentralization, however, Jacoby's piece nicely illustrates three blunders that any competent fan of centralization should avoid: Don't simply ignore the ways in which centralization might exacerbate the problems of (a) bureaucratic sclerosis; (b) cultural conflict; and (c) parental self-interest.
(1) Don't ignore the problem of centralization and bureaucracy. There is a substantial literature, starting with Chubb's & Moe's 1988 book, Politics, Markets, and America's Schools and more recently exemplified by the empirical work of Paul Peterson (see, e.g., his contribution in a volume edited by Caroline Hoxby) suggesting that students are better served by many competing educational providers than by a single large school district. Chubb & Moe suggested one causal mechanism behind these findings: Schools are more effective when principals have more autonomy to choose a team of teachers united behind a single educational vision, but schools governed by larger and more centralized school districts tend to deprive principals of the necessary autonomy. In particular, teachers' unions may insulate their members from meaningful performance measures, including discipline or re-assignment by principals, such that stronger teacher unions diminish educational performance (see, e.g., Hoxby 1996), and unions may be stronger in larger school districts (see, e.g., Rose & Sonstelie 2004), where parents have fewer choices and more costly routes to political participation. Caroline Hoxby's study of charter schools, published last Fall and suggesting that charters significantly improve student performance, is only the latest piece of important empirical evidence suggesting that centralized control of schools might not serve the best interests of students.
One does not have to accept the conclusion that competition improves performance. There is a voluminous and conflicting literature on the question, some of it highly technical -- indeed, nit-picking -- about how to code variables like district competitiveness (for instance, the Rothstein-Hoxby debate of five years' ago on Hoxby's use of rivers and streams as proxies for exogenous school district fragmentation to deal with the issue of reverse causality). But one cannot write an op-ed that simply ignores the controversy and expect to be taken seriously.
(2) Don't ignore cultural conflict. Since Jacksonian Democrats resisted Horace Mann's called for greater state and professional control of education in Massachusetts, there has been a tendency for educational reformers who like centralization to assume that their opponents are defying some obvious national consensus about what constitutes a good education. But the problem in America is that we Americans lack much of a consensus on what makes for a good school. Whigs like Horace Mann thought that their program of civic morality was non-sectarian, while their Democratic opponents thought that it was a Yankee Pietist plot to brainwash their kids, denigrating their traditional Catholic, Baptist, Lutheran, or just anti-Yankee cultures. (On this conflict, see Carl Kaestle's classic account, Pillars of The Republic, at 139-69).
Jacoby assumes that a federally led curriculum reform would enforce "a curriculum consensus reached by genuine experts in the subjects being taught," thereby avoiding the foibles of Texas. Oddly, she ignores the fact that the feds were led by a Texan not so long ago: Does she think that those eight years were a bad dream that will never repeat itself? In any case, the putative "curriculum consensus" might be a fantasy if we Americans are bitterly divided over everything from whole language (versus phonics) and sex ed (versus abstinence). The French govern a far more homogeneous culture than American society -- one far more tolerant of expert leadership and far less tolerant of religious and linguistic minorities, where (for instance) wearing a head scarf on public school property is grounds for expulsion. The notion that Americans would tolerate a similar level of expert control is a dirigiste delusion: Rather than enforcing the expert curricular ideals of Harvard Yard in Texas, the federal government would more likely become enmeshed in a quagmire of irresolvable cultural conflicts that would make health care reform look easy.
(3) Don't ignore the self-interest of parents. How does one get anyone to invest in the education of other people's children? Centralized finance is one mechanism -- if one assumes that voters' incentives to maintain school funding does not decline as the money is spent farther from home. Voters, however, might lose interest in financing schools when the nexus between their dollars and their own kids' education or house values becomes more attenuated. This, at least, is the suggestion of some research suggesting a link between school finance equalization efforts in California and declines in per capita educational spending. Again, one need not accept such claims: The evidence linking Serrano v. Priest with Prop. 13 is contested. But one cannot simply ignore the controversy: Even an op-ed with a word limit ought to acknowledge that there could conceivably be a link between voter interest in education and voters' perceived returns on their educational dollar.
On the New York Times op-ed page, however, one can apparently ignore a quarter-century of controversies over educational centralization without losing credibility as a pundit. If the only point of such a piece is to rally the faithful to the Whiggish banner of the One Best System of schooling, then I guess such a piece does no harm. But it does tend to confirm the stereotype that the New York Times is just one more echo chamber for the ideologically like-minded.
Homosexuality as Defamation: When Will It End?My previous post on cyberbullying involved, among other things, a claim by the plaintiff that his reputation was injured by being called gay. Just last month, a district court judge decided that a reasonable jury might determine that it is defamatory to call someone gay. Robinson v. Radio One, 2010 Westlaw 606683, (N.D. Texas, Feb. 19, 2010) I find cases like this fascinating because they expose the public policy choices that underlie the decision whether to treat a statement as defamatory or not.
Thirteen years ago, I lamented in print that "[c]ourts have been slow to embrace a progressive view by declaring that an allegation of homosexuality cannot be libelous. The courts act as if they are not in a position to pick and choose but must accept social prejudices as they find them." I wrote then, and I still believe, that the defamation cases involving a false attribution of homosexuality are comparable to the pre-1960s cases finding it defamatory to call a white person black, and I concluded by expressing the "hope that one day the modern homosexuality cases will seem as anachronistic as the pre-1960s race cases." I hold this view despite the fact that I understand that being falsely labelled homosexual can result in real harm. And I am sure some will contend that ignoring the reality of homophobia won't make it go away but will instead leave a plaintiff who has been falsely labeled homosexual without compensation for harm caused by a wrong-doer. However, I would contend that defamation's symbolic function is as vital as its instrumental one. Courts can, have, and should continue to declare the values of certain groups as too antisocial to be validated by law.
Fortunately, some courts are beginning to share this view. The U.S. District Court for the Southern District of New York rejected the claim that being called gay is defamatory, see Stern v. Cosby, Case 1:07-cv-08536-DC, as did a federal district judge in Massachusetts in Albright v. Morton, 321 F.Supp. 2d 130 (D. Mass. 2004). Indeed, the Massachusetts district judge
Despite the district judge’s willingness to leverage the symbolic function of defamation law, the First Circuit ended up affirming the dismissal on narrower grounds, holding that the photo was not reasonably susceptible of a defamatory meaning, because readers who realized the man in the picture was homosexual would also realize that the man was not the plaintiff. Moreover, the caption, which identified plaintiff as Madonna’s secret lover, and accompanying text made it clear that the plaintiff was heterosexual. Therefore, the First Circuit concluded, “given the [district] court’s correct finding that the photograph and its caption make no imputation of homosexuality, we need not decide whether such an imputation constitutes defamation per se in Massachusetts.” Amrak Production, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005).