Friday, December 31, 2010
My month-long stint here is up. Thanks to Dan and the others for having me. This has been fun, if exhausting. Happy new year to everyone.
Prawfish New Year's Resolutions
I am interested to hear the New Year's resolutions of my fellow law professors. Inspire me! For many years I believed New Year's resolutions were a waste of time, but I now welcome the chance to reflect on whether I'm doing what I ought to be doing. I also believe that making your commitments public helps you meet them. So here are mine.
Last year I resolved to give more presentations, meet more people in my field, and be less sheepish about promoting my work. I've made some progress on those resolutions, though I can always do more. This year, I resolve to write faster by being more organized and planning my writing projects so they build on one another. It slows you down when you try to reinvent the wheel every time you start a new project. Luckily I've finally found a subject that I want to write about over and over until I understand every aspect of it, and I'm hoping that focusing on this subject will help me achieve my resolution. However, I will also have to learn to say no when I'm invited to engage in activities or writing projects that don't advance my goal. I've never been good at saying no (in a professional context!!), especially if the invitation includes a little flattery. I am going to try to be more disciplined and think about the opportunity costs of letting my scholarly agenda be dicated by the invitations I receive.
I have a few more simple professional resolutions for the New Year. I want to include mid-course quizzes in my upper-level classes because I have been very happy with the effect they have had in Torts. I want to learn as much about the state of law practice today as I can so that I can give students good advice and train them properly. I want to serve on a university-wide promotion and tenure committee so that I can understand the system better and give better advice to untenured law professors. I'd like to see if I'm capable of raising money, in case I ever want to be a law school dean.
From a work-life balance perspective, I hope to encourage more UF law students to join our law school running and walking club. As an overcommitted working mother, the club has been a godsend for me and has had a number of unintended positive consequences. I've really gotten to know a number of students on a personal level that I might never have known otherwise, which is immensely rewarding. You learn as a teacher that you can't make a difference for every student, but you can make a difference for some, and it is easier to do that if you really get to know them. Even more significantly, perhaps, I've seen students making valuable connections with each other that they wouldn't otherwise make. How often do 1Ls get to connect with 3Ls in a meaningful way in law school? (If you are in Gainesville, Florida come run with us. Information is always available on the student-created Facebook page called Running with Lidsky)
Finally I resolve, again on the work-life balance front, to try to make a greater separation between work life and home life. My sons are 12, 9, and 6, and they all seem to be at pivotal moments in their lives for different reasons. I'm grateful and proud to have a professional career that I love, but I'm sorry to say I sometimes find myself working or being consumed emotionally by work issues when I should be focusing solely on my sons. (Like New Year's Eve?)
Please share your resolutions. I promise to find them fascinating.
Thursday, December 30, 2010
The Good Old Days of Grading (Not!)
With nearly all my students doing exams on computer now it's easy to forget how awful the very act of reading exams used to be. Horrible handwriting -- not skipping lines (despite my clear instructions) -- in pencil -- or marker that bleeds through the page -- which the students wrote on both sides on -- with infinite cross-outs and arrows pointing me God-knows-where. And then it's on to the next blue book ('BOOK 1 OF 5" -- ugh).
But still I have to say I smiled when I ran across a handwritten exam recently and encountered something I remembered with a fond smile -- the ever-scrawlier handwriting toward the last few pages of the bluebook. Ah yes, my child, I can see you were running out of time. Did you manage to spit out that last major point before time was called? Did you panic? Did your hand cramp up at that crucial moment? Your neat cursive gives way to block letters, ever cruder, ever larger, so that by the end you're barely getting three words on a line. I must say I got a little emotionally invested -- I hope you get it ...I see it coming ... you're setting it up ... there it is ... yes, my child!: the law is not narrowly tailored! And so the plaintiff wins! He does, he does, he does, my child! And so do you! Three additional points for my intrepid writer! Well done, well done.
Then it was on to the next bluebook print-out ("PAGE 1 OF 17").
Wednesday, December 29, 2010
Here's to you, President Adams
In reading a review of several books about John and Abigail Adams I learned that there's an Adams Memorial planned for Washington, D.C., somewhere near the White House. It has to be an official effort -- there's legislative authorization for a foundation, which has a website (though to judge from it, apparently not much else yet).
I like the idea, and wish it well. There's something quite attractive about honoring a non-charismatic, by all accounts plodding, but careful and thoughtful figure. Absolutely -- he engineered the Alien and Sedition Acts, and his legacy will always carry that. But there was a lot that he did that was right. John Marshall, keeping us out of war with France, and generally keeping the system running when it could have collapsed in the absence of George Washington.
But more than on the merits, I like the symbolism of the idea. As I said, there's something especially attractive about honoring someone non-charismatic. Jefferson's statue in his memorial is undeniably heroic. Lincoln's is stately but melancholy, maybe because how we know his Presidency ended. Roosevelt's is almost lost, and is certainly de-emphasized, by the "wandering through history" sense you get from visiting his memorial. Adams' -- if it's true to what we think we know about him -- won't be any of those. For a country that has become so charisma and fame-obsessed, it's nice to imagine a memorial to a President who wasn't dashing, didn't become fabulously wealthy or live on an estate, and who earned his place through plodding hard work. And in our current age, we could learn from his example in defending the hated British soldiers accused of murder over the Boston Massacre.
So here's to you, President Adams. And to the Memorial Committee: as soon as we see a model of the statue, I'll be sending in my penny.
Tuesday, December 28, 2010
Searching for realism in popular culture
I have written before that one of my pet peeves is the woefully inaccurate portrayal of lawyers and the legal system in popular culture, to which others have pointed out that the problem is one of having specialized knowledge. Thus, physicists are similarly likely to be bothered by gravity on the Starship Enterprise.
On that note: After the jump is a handy chart evaluating major sci-fi films are their scientific accuracy (or lack thereof). Star Wars and The Last Starfighter get it most wrong; Apollo 13 and The Right Stuff get it most right.
Monday, December 27, 2010
Um, just one little question before our interview is over: what exactly are your worst law review article(s) and why?
If you haven't seen it, Kim Krawiec from the Faculty Lounge asks (yet) another fascinating question of law professors. The comments are also very interesting. Check it out.
Conditional Spending and the Australian Experience
Following up on my prior post on conditional spending grants, I would like to note a closely analogous experience in another country. In Australia, which also has a federal constitution with enumerated powers (with unenumerated powers reserved to the states), the states are basically the slaves of the federal government. The reason is that the federal government has almost plenary control using conditional spending grants.
The neatest trick is that one of the conditions of federal grants in Australia is that the states do not levy an income tax. In 1942, at the height of the Second World War, the Australian federal government increased the federal income tax by the highest level levied by the states at the time. The federal government then offered to reimburse states this extra revenue -- on condition that the states do not levy an income tax. After the High Court of Australia upheld this scheme, all the states capitulated.
To this day, I remain surprised that Congress has not attempted to replicate this trick in the United States. I'm sure that some pretextual benefit to the general welfare (e.g. to prevent people the paperwork of having to file state taxes) can be conjured up.
Provisional AALS Section on Transactional Law and Skills petition
From Tina Stark-
If you are attending the AALS Meeting, please come to the organizational meeting of the provisional AALS Section on Transactional Law and Skills and sign the petition in favor of creating the new Section. The meeting is being held on Wednesday, January 5th from 2:00 p.m. to 3: 45 p.m. at the Hilton Hotel, Yosemite A, Ballroom Level. We need signatures from at least 50 professors from at least 25 law schools. Please stop by. Signing will just take minute. A copy of the petition is attached.
If you are unable to attend the meeting, you can sign the attached petition and send the original (not a PDF) by snail mail to me for receipt no later than January 15, 2011.
Professor Tina L. Stark
Emory University School of Law
1301 Clifton Road
Atlanta, GA 30322
As the Section will not yet be formed, no official business will be conducted, but we will discuss the purpose of the Section and the process for gaining provisional and then permanent status.
Have a wonderful, happy and healthy New Year.
How much should I worry that in-class exams reward speedy thinking and writing more than clear thinking and writing?
My least favorite holiday tradition is grading my 1L exams, and it is not only the drudgery of reading many dozens of answers to the same question. What makes me least happy about grading in-class 1L exams is the persistent nagging feeling that those who are able to think/write faster in the compressed time I give them to answer my questions do consistently better that those who may think/write more clearly but do not get their thoughts on paper as quickly.
In all my upper-level classes, I give take-home exams with strict word limits in the hope of encouraging/favoring clear thinking/writing over speedy thinking/writing. But there are administrative challenges with giving a take-home to 1Ls, so I revert to the traditional in-class model for my fall Criminal Law class. And, perhaps aggravated by the fact that I like giving a very hard exam with the hope of rewarding those students who know the material best, I find that the students who tend to do especially well on my traditional in-class exam tend to be those who find the time to write the most.
Perhaps I worry too much: maybe those students who are able to write the most are those who know the material best and thus are, in fact, those who are the clearest thinkers. But figuring others in this blog arena might have thoughts on this topic, I'd like to hear other opinions on whether my concerns here are overblown or spot-on.
'Tis the season... for grading gems
I am knee deep in exam grading, snowed in with stir crazy kids, so maybe I am laughing a bit too hard at some of my exam "gems."
For your consideration:
"A good argument could be made that the agent had no authority." That's the end of the discussion on that point. I agree that a good argument could be made and would further add that a good argument should be made.
“This vote was not valid because you need a majority of the disinterred directors to approve it.” It’s hard enough to get the disinterested directors on board- after they have actually been buried and dug up, I am guessing your odds drop even more.
“The Restatement provides many, many rules on this, too many to mention.” Curious choice- go ahead and mention a few…
Can you top those?
Happy holidays to all who celebrate and happy grading to all who grade.
Sunday, December 26, 2010
Limits on Congressional Power in the General Welfare Clause
Randy Barnett and David Oedel have an article in the Wall Street Journal (subscription, but can circumvent though Google) arguing for a rather radical limit on Congressional spending. According to Barnett and Oedel, a particular item of federal spending must benefit the "welfare of the people of each and every state" in order to count as providing for the General Welfare of the United States. So an earmark specific to Nebraska that relieved the state of Medicaid expenses would be unconstitutional. Although this is not my area, and many people have been recently burned by underestimating Randy's arguments about limits on Congressional power, color me skeptical on the argument.First, it is not clear why Barnett and Oedel require parity between states but not individuals. After all, why not say that General Welfare means each and every person, rather than each and every state? Where the constitution required parity between each and every state, such as for direct taxes, the provision was made expressly. Of course, to require every particular item of federal spending benefit every person in the United States would lead to obviously ridiculous results, but that doesn't make drawing the line at state-by-state parity any better.
This leds to my more serious objection, which is that particular items of federal spending will always benefit specific states. Barnett and Oedel argue that a military base in Nebraska will benefit the entire nation. But it is hard to imagine how, say, a single janitor sweeping the hall in a federal building in Hawaii will benefit North Dakota. And if we start really stretching logic to find some benefit -- e.g. cleaner hallways in Hawaii will improve the overall efficiency of the federal government -- then that defeats Barnett and Oedel's entire purpose. After all, paying for the medical care of Nebraska residents will obviously benefit the rest of the United States, since it will stimulate economic activity as well as improve the health of Nebraska residents, which will reduce communicable diseases that they might carry to other states, which again will make everyone healthier and improve economic welfare. The point is only that the benefit is somewhat attenuated. But by conceding the military base example -- which of course they had to as a bow to reality -- they necessarily concede some degree of attenuation is persmissible.
Finally, it strikes me that Barnett and Oedel base their argument on a textual mistake. The relevant provision of the constitution is not directed to particular items of spending. It is directed to particular items of tax. The constitution authorizes the levying of taxes to provide for the general welfare -- it only implicitly says those taxes may then be spent. The level of generality is therefore not the particular items of federal spending, but the particular tax being levied. And the relevant tax -- the income tax -- does provide for the general welfare. It does so by being carved up into millions or billions of different pieces of spending. Some of those pieces of spending will benefit individual people or states; but the overall scheme gives some benefit to everybody. And it is inherent in the scheme that some people (and some states) will get more than they put in, while others less.
While everyone should be troubled by particular states or constituencies getting disporportionate shares of the pie because they happen to be in a good political position (having the swing senator), it bears repeating that not every bad law is an unconstitutional law.
On "The Literature is Vast"
For the book manuscript I'm working on with respect to First Amendment institutions, I included today a short discussion of the rules-vs-standards debate, with a typical footnote beginning, "The literature on this topic is vast" and followed by a set of canonical cites. In doing the research, I could not help but be amused by the fact that at least fourteen articles use almost the exact same words, putting "rules," "standards," "literature," and "vast" in the same sentence.* (I didn't bother to check for synonyms like "voluminous" and so on, which I'm sure would at least double the total.) So not only is there a vast literature on the rules-vs-standards debate, but there is a fairly sizable literature of articles describing the rules-vs-standard literature as vast!
Just as amusingly, although there is a vast literature suggesting that the literature on this subject is vast, everyone in the end cites the same few authors: typically, Louis Kaplow, Kathleen Sullivan, Pierre Schlag, Fred Schauer, Duncan Kennedy, sometimes Russell Korobkin or Cass Sunstein, and one or two others. So the literature of articles saying the rules-vs-standards literature is vast is roughly twice as vast as the actual number of generally agreed-upon canonical articles on the subject.
Of course, that's not necessarily a contradiction; there are lots of rules-vs-standards articles, but only a few that are widely agreed to be great. It's not clear that this is really a strong consensus; once a canon forms, it's generally more efficient to just cite to it than to bother doing the work of sorting through the literature for hidden gems or trying to de-canonize one of the unworthy chosen greats. After a while, citation begets citation without much qualitative judgment entering into it. And timeliness and good title-selection help too: Geoffrey Stone's articles on content distinctions and the First Amendment are great, but they are also relatively early and comprehensive treatments of that subject, and their titles mean they show up in every basic literature search. Still, it's amusing to note that although everyone agrees that the rules-vs-standards literature is vast, everyone also agrees that only a decidedly non-vast number of articles on the subject appear to be worth reading.
I imagine this happens all the time and that folks in every field could find similar examples. ("The literature on judicial review is vast. See, e.g., Marbury v. Madison, Bickel, Thayer, and, um, that'll do." "The literature on transaction costs is vast. See R.H. Coase, The Problem of Social Costs, and . . . no, just stick with Coase, actually.") Commenters are welcome to chime in with favorites of this kind from their own specialties.
Saturday, December 25, 2010
Defamed Law Profs Win $5.2 million Against West Publishing
Here's a report of a defamation win by two law profs against West Publishing that seems, well, a little excessive based on the reported facts. According to the report, the defamation claim was based on false attribution of authorship of a poorly done pocket part. I guess the profs didn't buy the argument than any publicity is good publicity. I'm dying to know more, because there must have been more for the verdict to have been this large. The plaintiffs were David Rudovsky and Leonard Sosnov.
Friday, December 24, 2010
It's been said that Christmas may be too joyous to restrict to Gentiles alone. Whether this is true, I'll leave to others, but I wanted to take a moment to wish a wonderful and joyous Christmas to all our readers and writers in the Prawfs community who are celebrating it this weekend. May your holiday be filled with love and laughter, and our days together replete with joy and peace.
DADT Repeal and On-Campus Military Recruiters
This post is an inquiry, not a comment. I have seen a general New York Times story on the future of ROTC after the repeal of DADT, and this (well-deserved) piece on Tobias Barrington Wolff of Penn Law and the repeal of DADT. But I haven't seen much if any discussion about the future of on-campus military recruitment at law schools in the wake of the repeal. Of course, under the Solomon Amendment, law schools receiving funding were obliged to make those recruiters welcome. But there is a difference between a grudging welcome and an open-armed one, as Journey observes. Recall that the law schools opposed equal access to students by military recruiters solely or primarily because of the military's discriminatory policies, and that the Supreme Court made clear in the Solomon Amendment case that the law schools were free to voice their disagreement with those policies even if they were obliged to provide equal access to the recruiters.
Now, however, with the repeal of DADT, what stood as the primary reason to be unhappy about the presence of military recruiters is being dealt with. I might have expected to see news releases from the AALS and the major law schools, especially those that were full-throated in their opposition to equal access, celebrating the repeal and emphasizing that this will allow them to allow and support, in good conscience, the recruitment of law students to the defense establishment and the war machine (a phrase I do not mean in an insulting fashion).
Of course it's the Christmas/holiday season, and there are fewer people around to issue releases and so on. But I might especially have expected a news release from the AALS in advance of the annual meeting, celebrating the possibility that we will have more citizen-soldier-lawyers drawn from the ranks of the law schools.
Am I missing something? There may have been such announcements and I may just have missed them. Is anyone aware of any statements of this sort?
Christmas Music, Presented by the Borough of Brooklyn (Whether You Like It or Not)
My normal evening commuting path takes me from Brooklyn Law School to the subway stop at Jay Street. This route takes me down two blocks of Fulton Street, a shopping district in downtown Brooklyn. Every Christmas season the city, in addition to displaying holiday lights, plays Christmas music from loudspeakers on the street. I have to admit it often annoys me. It's not that I dislike the music itself; I don't mind Christmas music as a general matter. But the idea of the city broadcasting music onto a public street, not as part of festival or a special event, but for over a month every year, really grates. It reminds me of this Depeche Mode Album Cover, which in turn reminds me of this wonderful Depeche Mode video from the same album. In turn, that reminds me of the fantastic Terry Gilliam movie, Brazil. And the government satirized in "Brazil" leads me, ultimately, to come full circle and think of Pollak.
Pollak? That would be Public Utilities Commission v. Pollak, the 1949 Supreme Court case where the Court upheld, against First and Fifth Amendment challenges, a federal law authorizing radio broadcasting to be piped into streetcars in Washington. It's an interesting case, most notably because it features the first instance of the use of the term "captive audience" in a Supreme Court opinion -- in Justice Douglas's dissent. It's also interesting because Justice Frankfurter recuses himself, apparently because he's so annoyed by the music on the streetcars (Justices rode streetcars back then?) that he felt the need to recuse himself. As he said, "My feelings are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it." Wow.
So I guess I'm in some good company: I feel like a captive, as Justice Douglas argues, and I'm annoyed, just like Justice Frankfurter. But on the merits, what can you do? It's really not unconstitutional (don't take my word for it: seven Justices voted to uphold the practice in Pollak). And that's got to be the right result: if creches are constitutional as long as they're next to reindeer, then "White Christmas" must be constitutional (I've heard only one religious song so far this season, which presumably isn't enough to fail the endorsement test). But as a citizen I really have to protest this uninvited government-funded serenade on my commute. Do people really like this? Or is this the kind of thing that nobody will protest, so no bureaucrat will risk heat by getting rid of it?
On second thought, forget what the Court says: If I hate it it must be unconstitutional, right? Bah, humbug!
Thursday, December 23, 2010
The Social Security Trust Fund Accounting Trick
Over at Dorf on Law, Neil Buchanan has a post raising the prospect that the "payroll tax holiday" might eventually undermine one of the key foundations of political support for social security, the trust fund. Neil and I basically agree on the descriptive: the Social Security Trust Fund is an illusion, and it is an illusion that is fundamental to protect its political backing. I suspect we disagree on the normative, whether basing the largest federal program on an illusion is good government policy. Below the fold, I attempt to explain how this illusion operates.The reason that the Social Security Trust Fund is an accounting illusion is slightly complicated to explain. Suppose we have an individual, John Doe, and his wife, Jane Doe. John earns $60,000 per year, and Jane earns $40,000 per year, so their household income is $100k. Let us assume also that the Doe household spends $70,000 per year in ongoing expenses like rent, food, and utilities. Furthermore, they give $40,000 per year to Jane's parents, who are sick and need constant medical care. Thus, the Doe household runs a $10,000 per year deficit, which is placed on John's credit card.
So far, so good, and everyone would say that the Doe household runs a $10,000 per year deficit. They also would have no retirement savings.
Suppose that John and Jane put together the following nice little trick to get some retirement savings. At the beginning of every month, Jane's income would be put into a seperate Savings Account. On the second of the month, John would withdraw the entire amount from the Savings Account, and give the money to Jane's parents to pay for their medical care. At the same time, he will write a promissory note to Jane, promising to pay back the money into the Savings Account in the future, when John and Jane retire. The Does would then continue to do everything exactly as before: John earns $60k, spends $70k on things other than Jane's parents, and they put $10k on the credit card.
The Does would also go around saying that they are putting $40,000 every year into their Savings Account. And people would laugh at them, though somehow people don't laugh when Uncle Sam does this.
The reason this doesn't work is because the Does are blatently double-counting the $40,000. If John's promissory note to Jane is a worthless piece of paper, they have no retirement savings -- the retirement money is being spent on Jane's parents. If John's promissory note to Jane is a meaningful piece of paper, then the Does do not have a $10,000 annual deficit. They have a $50,000 annual deficit.
This, in a nutshell, is how the social security Trust Fund works. Substitute John and Jane for "current working-age taxpayers" and the Savings Account for the Social Security Trust Fund, and there you have it. If the Trust Fund really is devoted to future Social Security benefits for today's workers, then you must take the payroll tax revenue out of the calculation of the federal deficit, but still keep social security payments to today's retirees (payments to Jane's parents) in that calculation, which would make the deficit explode (the $50,000 in my example). But if we say that the trust fund is an illusion, a worthless piece of paper like John's I.O.U. to Jane, then we, like the Does, have no retirement savings and still something of a deficit ($10,000 in my example).
Jews and Christmas Music, Redux
With our own "serious MOJ-er" Rick Garnett enjoying the festive times in Israel, I thought I'd share this interesting set of reactions from an Orthodox Jewish friend in San Diego on why he loves Xmas music. As to my own feelings -- which admitted are not formed enough to be "thoughts" -- they are a bit more ambivalent, but Mike makes some good points over which I'm still mulling. I'm curious to hear your own thoughts (or feelings for that matter). In any event, to all those celebrating, a very merry Christmas to you and yours.
Btw, if you're unable to join Rick in the Holy Land for falafel on Christmas Day, perhaps you'll want to try this place assuming you're in the NYC area. Who knows, you might even run into Justice Kagan there?
With Xmas on my mind, that also suggests the end of the year and the arrival of the new one. I will be putting together the list of guest bloggers for the first half of 2011 imminently. If you are a prawf (or about to be one this coming fall), and you are interested in a guest stint on Prawfs or know someone who is interested, please email me right away and let me know which month between January and June works best for you -- we generally expect guests to post 2-4 times a week during their month long stint. If possible, please let me know your first and second choice. Thanks and have a great holiday weekend!
Wednesday, December 22, 2010
"I will not compromise"
This subject is already getting a bit old, but before it completely disappears I wanted to note, and then ask about, John Boehner's post-election statement in an interview that "we will not compromise." Of course, this is partially political theater - in this case, throwing down the gauntlet to the Obama Administration that the Republican House majority will oppose him on major policy initiatives. And it's completely appropriate for a party leader to make it clear that he opposes the agenda of the other party. But I'm curious if people think there is something new to this anti-compromise rhetoric. Isn't compromise what's supposed to happen when you govern?
In fairness, the full statement is that "we will not compromise on our principles." And he did say that he would work to find "common ground." So the statement is not as sharp as it appears at first glance. Still, when the reporter pressed on this point he insisted that "compromise" had a bad connotation among the American people -- that it signaled a sell-out of people's preferences, as he believes them to have been expressed in the midterm elections.
I'm speculating here, but I would guess he's aiming his words at Tea Party types who feel unrepresented by politicians. But regardless of his motive, the questions remain. Is this rhetoric new? If it is new, is it a problem? One can always say, "it's just rhetoric," but the problem with that is, rhetoric matters. Congressmen Boehner obviously chose "finding common ground" over "compromising" (even if he described the other option as compromising principles). So he must think the difference matters to the American people, or at least the slice he's trying to connect with. If it does matter, then I again pose the questions: is this anti-compromise rhetoric new (or at least atypical), and, if so, is there something troubling about treating compromise as a dirty word by linking it to selling out?
The more I think about it, the more I do think there's a significant difference. "Compromise" implies giving something up, in exchange for getting something. "Common ground" means finding the golden spot where everyone gets something they want but nobody gives anything up. If this is true, then is it troubling that the incoming Speaker of the House is telling the country that his party is not going to give anything up?
I don't think this is hair-splitting. Do others?
Legislative Preferences, Levels of Generality, and Meaning
My earlier post on discerning majority will when contradictory preferences exist on different levels of generality has led to a long and interesting exchange with Orin Kerr. The sum of our disagreement seems to come down to whether a legislature (or demos) can ever really have contradictory preferences, or at least express contradictory preferences in legislative enactments. I say yes, Orin seems to say no.
So far as I can understand, Orin's position seems to be that if the same body expresses a disliking for a general category (e.g. animals in the park), but liking of a more specific instance of the category (e.g. dogs in the park), then we must reconcile these apparently contraditory preferences by holding that the specific trumps the general. So if the legislature enacts a statute saying "no animals in the park" but then enacts a statute saying "everyone must exercise a dog in the park," then we should understand that the reference to "animals" in the first enactment really meant "all animals except dogs." And if and when the legislature enacts more instances (cats) that contradict the original enactment, the understanding is not that the original enactment was repealed, but that the legislatures original meaning contained those exceptions as well.
Orin's position is not really exceptional. It is most clearly supported by a line of Supreme Court cases culminating in Marsh v. Chambers, where the Supreme Court basically held that because the First Congress included so many people from the constitutional convention, anything passed by the first congress is constitutional. This makes sense only if we understand the First Congress and the constitutional convention as essentially the same legislative body, and have an assumption that the same legislative body cannot (or at least is unlikely to) make contraditory pronouncements.
That said, I still think it is wrong. The cheap point is that Marbury v. Madison invalidated a statute enacted by the First Congress. More fundamentally, this conception of textual meaning says that text means, and only means, whatever consequences the people who drafted it thought it would produce. It is what Jack Balkin calls "original expected application." At the extreme, practically nobody really subscribes to this view of textual meaning, since it would imply that we would really have to ask what James Madison thought about the internet when dealing with the First and Fourth Amendments.
If we accept that text has independent meaning from the subjective expected appliation of its drafter, then legislatures can make self-contradictory enactments because they can have self-contradictory preferences at different levels of abstraction. A legislature that simultaneously says "no animals in the park" and "everyone must walk dogs in the park" is contradicting itself, not having some secret usage of the word "animal."
Tuesday, December 21, 2010
First Amendment Rules and Standards
My contribution to the con law professor roundtable I blogged about here consisted of a short piece that considered Citizens United, US v. Stevens and Humanitarian Law Project v. Holder from the perspective of rules and standards in First Amendment doctrine. They're interesting cases to compare -- especially the first and the third, although Stevens' discussion of the Chaplinsky categories of unprotected speech is relevant as well, in addition to being important in its own right.
As the entire world knows by now, in Citizens United Justice Kennedy took a strong, rule-based approach to the First Amendment, in the form of his presumptive rules against identity-based speech discrimination and content-based speech restrictions. At least somewhat analogously, in HLP Chief Justice Roberts purported to apply "more demanding scrutiny" to the suppression of the expression in that case (i.e., more demanding than the scrutiny in US v. O'Brien). Nevertheless, he ended up largely deferring to Congress's judgments about the extent to which aid to terrorist groups is fungible -- even if takes the form, as it did in HLP, of speech assisting such groups' attempts at peaceful dispute resolution. Finally, in Stevens, the Court, again speaking through Roberts, described the Chaplinsky categories not as resulting from the Court's ad hoc balancing of the benefits and costs of types of speech (such as obscenity) but as describing a historical consensus that such types of speech were outside of the First Amendment's protections (presumably because someone earlier -- the Framers, American society in 1791 -- engaged in that balancing).
An interesting point about these cases -- among a lot of others -- is HLP's seeming inconsistency with the Citizens United and (to a lesser degree, Stevens), and what that inconsistency suggests about the constraining effect of rigid rules in the First Amendment context. The classic exposition of the justification for such rigid rules in the First Amendment is Justice Souter's statement that rigid rules "keep the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said." My reading of these cases -- in particular, HLP -- makes me wonder about whether that dynamic really works. I'm not necessarily disagreeing with the result in HLP. But I do wonder how its deference to Congress can be squared with the "more demanding scrutiny" that the Court applies to what it describes as a "content-based regulation of speech."
Of course, the restriction in HLP falls in an intermediate zone between statutes that restrict speech only as a collateral matter and those that are aimed directly at content. It doesn't ban all speech of the sort the speakers wanted to make, just speech made in association with the particular groups. And it does so as part of a statute that bans providing assistance, not a statute that singles out speech. And there was a compelling government interest at stake. But these features of the law push it in the direction of the speech restriction at issue in Citizens United. And we know how stringently the Court reviewed that restriction.
Still, national security is a big deal -- more precisely, it's a big, difficult, deal, one that presents difficult empirical and policy questions for a court that doesn't have access to the information Congress has. It's a difficult question what courts should do when confronted with a speech claim that runs into a federal regulation based on this sort of interest. But having said that, I wonder whether anything is gained by a court pretending to do some form of heightened scrutiny when it more or less just defers to Congress on these issues? And, moving beyond the case itself, how much credibility does it then have when it confidently intones the rigid rules in Citizens United and Stevens? Indeed, in Citizens United Justice Kennedy notes his own view that content-based restrictions on political speech should be simply per se unconstitutional, rather than subject to strict scrutiny, before applying the strict scrutiny standard on behalf of the Court. Yet he joins HLP. It's more than odd. It's enough to make one despair of the Court acting in a principled way when the stakes are high. Kind of like that case about ten years ago or so.
A really nice facet of this issue is the position of Justice Stevens. Again, as all the world knows, he wrote the dissent in Citizens United, which was a full-throated attack on the idea of rigid First Amendment standards. (Remember the "not even close" statement he makes when considering the majority's argument that the First Amendment doesn't allow identity-based distinctions with regard to speech.) And in HLP? He joins ... the majority, leaving the liberal bloc, on what I think was the last major decision he participated in. It's a telling way for him to leave the Court: reminding us, by his votes, that rigid standards don't do the job, at least when the issues are as difficult as they are in these cases.
Monday, December 20, 2010
Constitutional Authority for Legislation in the 112th Congress (the House, Anyway)
Making the electronic rounds over the weekend was a proposed rules change by the incoming Republican leadership in the House, to require any new bill to include a statement identifying the particular source of constitutional authority for the substance of the legislation. In particular, the new language to Clause 7 of Rule XII would specify that:
A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution. The statement shall appear in a portion of the Record designated for that purpose and be made publicly available in electronic form by the Clerk.”
I haven't thought that hard about this rules change, but it strikes me as a fairly silly political trick that will be utterly devoid of legal significance. It's not just that Congress has never had to specifically identify the source of its power for legislation in the past; it's that, if memory serves, the courts have often upheld legislation based on powers other than the one (or two) most obvious / likely candidates, whether or not Congress identified that provision as a source of its power. Nevermind the separate but equally distinct possibility that a bill will be amended between introduction and passage to regulate based on different enumerated powers than those initially identified by the bill's sponsor...
Do folks disagree? That is, does anyone think that a court would strike down a federal law that is a valid exercise of Congress's constitutional authority on the ground that it's not a valid exercise of the power Congress thought (or "said") it was exercising? If not, is this federalism-inspired theater? Something more sinister?
Surreal CLE moment: Can one get CLE credit in Illinois for auditing a class that one simultaneously teaches?
In Illinois, at least, one can get CLE credit for "Part-Time Teaching of Law Courses" at "an ABA-accredited law school" -- but only if one is a lawyer who is "not employed full-time by a law school." Illinois MCLE Board Rule 795(d)(6)(i). According to the same rule, "[f]ull-time law teachers who choose to maintain their licenses to practice law are fully subject to the MCLE requirements established herein, and may not earn any credits by their ordinary teaching assignments."
This rule barring "full-time law teachers" from counting their "ordinary teaching assignments" as continuing legal education might strike one as a bit peculiar. After all, how can something be continuously and legally educational when taught by a part-timer but not equally continuously and legally educational if taught by a full-time prawf? But the Illinois rules get downright surreal once one considers Illinois' CLE rule for auditing courses at ABA-accredited law schools. It turns out that, under Illinois MCLE Board Rule 795(d)(2), one can get CLE credit for"[a]ttendance at J.D. or graduate level law courses offered by American Bar Association (“ABA”) accredited law schools" even if the course is "not taken for law school credit towards a degree" but merely audited. (Rule 795(d)(2)(iv)). Moreover, there is no exception for "full-time law teachers" in this rule awarding CLE credit for auditing (as opposed to teaching) a law school course: Full-time profs who audit law school courses apparently are just as eligible for CLE credit as any other lawyer.
It turns out that I have fallen in arrears on my Illinois CLE obligation, because, as a "full-time law teacher," I cannot get credit under Rule 795(d)(6) for any of my "ordinary teaching assignments." (Who knew? Does any other state exclude prawfs from getting CLE credit for their own ordinary teaching duties?) So here's my question for you textualists out there: Can I get CLE credit for auditing my own courses that I taught while a full-time prof at Michigan and NYU? After all, I think that I was a model auditor of my own courses, attending every single session religiously, reading the material assigned pretty carefully, and participating actively in class discussion. I did not always take the examination that I wrote (although I usually prepared a model answer, albeit not under exam conditions) -- but I do not think that Michigan or NYU require auditors to take the exam. So, if I can get my past and present deans to provide some "written certification evincing that [I have] complied with requirements for the course and attended sufficient classes to justify the awarding of course credit if [I was] taking the course for credit," (Rule 795(d)(2)(v)), then am I in the clear with the Illinois CLE rules?
More seriously, what could possibly be the rational basis for barring full-time prawfs from getting CLE credit for "ordinary teaching assignments" when non-academics who co-teach or even audit the same courses can get full CLE credit? Is this asymmetrical treatment of academics and non-academics simply an expression of practitioners' and adjuncts' spite towards prawfs? Or is the idea that the auditors learn more from a law school course than prawf who actually teaches it?
Levels of Abstraction in Majoritarian Will
Alexander Bickel coined the term "counter-majoritarian difficulty" to describe the legitimacy problem faced by courts when they strike down popularly enacted statutes. While it is definitely a problem, I am not sure that it is very often necessarily a problem of counter-majoritarianism, though sometimes it is. More often, the debate is simply the level of generality at which we define the majority's preferences.
Take flag burning. If you ask the majority of people whether flag burning should be banned, the answer would be "yes." If you ask whether the majority of people whether we should ban "expressive speech" -- entirely putting aside whether the First Amendment forbids this -- the answer would be "no." But as long as we concede that flag burning is an instance of "expressive speech," then these preferences conflict (and for those who don't agree that flag burning is expressive speech, imagine some other distasteful activity -- e.g. KKK marches -- that fits the bill). Unlike Bruce Ackerman's conceptualization of the problem as an intertemporal conflict between different majorities, often it is a conflict within the same majority, where the preferences are measured at different levels of abstraction. A court that strikes down a flag burning ban is contradicting today's majority preference for the ban, but effectuating the same majority's more general preference for protecting expressive speech.
Thus conceptualized, the problem is not limited to constitutional law but is well known in voting theory. Its most common manifestation in real life is probably the public's preferences on government spending. In the abstract, the public prefers reductions in spending in order to lower taxes and lower deficits. At the same time, majorities of the public also love individual spending programs. These two preferences conflict. Hence our deficit problems.
Saturday, December 18, 2010
The Beatles = Sandy Koufax?
Hey, it's a slow Saturday morning. This idea comes from several recent cultural releases: The Beatles music coming available on iTunes (I was listening to Sgt. Pepper while running this morning); an old documentary about the Beatles that TiVo found for us; the recent 30th anniversary of Lennon's murder; and the well-received new documentary Jews and Baseball: An American Love Story, which features an interview with Koufax (who agreed to appear in the film only when convinced that the story of the Jewish-American love affair with baseball cannot be told without him).
The link? Both are regarded, by many, as the greatest ever at what they did (rock group, left-handed pitcher). Both enjoyed relatively short careers marked by dominance (the Beatles run from 1962-70, Koufax from 1961-66). And both then disappeared overnight* for somewhat analogous reasons (Koufax's body no longer worked, the Beatles no longer could work together--and I'll leave out Yoko).
So to what extent have both endured in our minds because their careers were, relatively speaking, like comets. We never saw Koufax struggling as a 35-year-old who had lost something off his fastball. We never heard the inevitable mediocre Beatles album without a single that could capture the public's ear. We never saw them trying unsuccessfully to adjust to new musical tastes. We never saw them as 65-year-olds, voices shot and bodies ravaged by years of drug use, still trying to strut around the stage (of, course, the Beatles stopped touring for the last four years together, so this may not be fair). And the arguments that either was not the greatest ever always zero-in on that lack of longevity--Koufax did not last as long as Randy Johnson, the Beatles did not last as long as U2.
What we have for both are memories of a relatively fleeting period. And good things get better in our memories over time when there is nothing new or recent to affect that memory.
Anyway, just a thought. OK, back to real work.
* Putting aside whatever the former Beatles did as solo artists or members of other groups, some of which was terrific, some not so much. And put aside the question of if there would have been a reunion (and how many) had Lennon not been killed.
Friday, December 17, 2010
A Question of StyleIs there ever a legitimate reason to use the word "firstly" rather than "first," or "lastly" rather than "finally"?
I just returned from a really terrific Con Law roundtable on the Roberts Court at Five, at the University of Louisville, organized by Russ Weaver. I'll be blogging about a few of the topics we discussed of the course of the next week or two.
I'll start with a pedagogy point. At some point during the discussion (which, as befits the term "roundtable," was an unmoderated discussion between the participants), the issue of teaching and testing came up. It was a lively discussion: a number of participants saw the Roberts Court -- and even the Supreme Court in general -- as primarily a political, not a legal, institution, which raised interesting issues about, among other issues, how we teach and how we test.
The particular question I want to raise today concerned the idea of testing using politically fraught fact patterns, such as the constitutionality of the health care law. One participant said he used that law as a hypo on his final exam. I was not enormously surprised to hear that, but I still have some concerns, the plausibility of which I'm wondering about and on which I'd love to hear some reaction. Basically, the issue is this: if a prof asks a question about something controversial, will students feel pressured/tempted to try to guess the prof's political position on that issue, and skew their analysis accordingly? This is presumably a bigger issue the more the prof takes the position in class that law is indeterminate at least to some degree, and that decisions, at least at the Supreme Court level, are as much political as they are legal.
Of course, there's nothing necessarily wrong with thinking that way, and if you think that way it makes sense (and is more honest, to boot) if you test that way, especially if you spend a lot of class time examining the "law is politics" claim. Moreover, there's surely nothing wrong with driving home (and testing on) the idea that doctrine provides a box of tools that a competent, creative lawyer has to be able to use. So even if you do think (and teach) that law is politics, you can insist that students give an answer couched in competent legal analysis. But if a prof does that, and then gives the health care law as an exam hypo, and asks "is it constitutional?" or "how would a court rule?" then I wonder if that's really playing fair.
The obvious fix is to change the call of the question, to ask something like "make the strongest argument you can for the law's (un)constitutionality." But even then I wonder if there's a level playing field -- if the prof says that law is politics, then asks students to take and defend a "political" position they disagree with, might a student feel disadvantaged as compared with students with the opposing views? Or if the prof is, say, a liberal, and asks "make the strongest argument that the health care law is unconstitutional," would a student feel like she's being set up?
Note that the problem here is not just one of reality, but of perception as well. Probably one of the most corrosive things students can think is that, after working hard all semester, the exam was slanted against them. So I'm wondering: are these real issues? How have students and profs confronted them?
Trifurcating the Espionage Act? Me on ACSblog on L'Affair Assange
Over at ACSblog, I have a guest post up about yesterday's House Judiciary Committee hearing on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks." In particular, I suggest that yesterday's hearing may have produced the conclusion that the true "answer" to the current problems with the Espionage Act is three different statutes--one for spies, one for government employees and contractors, and one for private citizens with no specific intent to benefit a foreign power. The devil is in the details, of course (especially for the third statute, which raises tons of First Amendment concerns), but my own view is that this would be a pretty good start...
What does it mean to have a theory of federalism?
At the risk of being tediously repetitious, I have to take exception to an assertion by Jason Mazzone in today's New York Times. According to Mazzone's op-ed piece, Judge Hudson's distinction between action and inaction in his decision striking down the "minimum essential coverage" rule is "a limit that makes sense of past cases, is steeped in the law’s traditions and allows the court to complete the task it began a century ago." I beg to differ: As I've noted earlier for believing that this action-inaction distinction is, in terms of federalism, a senseless distinction.
Don't get me wrong: I agree that the action/inaction distinction makes plenty of sense as a theory of individual liberty. Forcing people to do stuff generally constrains their liberty more than barring them from doing stuff. But this distinction is completely unrelated to the question any doctrine of enumerated powers must answer, viz., "why should we trust the states more than the feds to impose the challenged regulation?" If one's legal distinction sheds zero light on this question of relative institutional competence, then it is senseless to use the distinction to gloss Article I, section 8's limits. If it is an unduly oppressive burden on liberty for Congress to require consumers to buy health insurance (or a Chrysler car or whatever), then why is it any less of an unduly oppressive burden for the states to do so? If you cannot answer this question, then your action/inaction distinction is unrelated to any theory of federalism.
"So what? Who needs a theory of federalism?" Mazzone might reply: "One only needs five votes to make law, and legal distinctions unrelated to the purposes of the constitution are great at reeling in those votes." That was Chief Justice Rehnquist's M.O. in Lopez, United States v. Morrison, Morrison v. Olson, and South Dakota v. Dole. Rehnquist would write what I call a "fact sandwich" opinion in which he would start with a generalization too abstract to do any serious work, recite some "factors" or distinctions that would distinguish the case at hand from past cases, and then announce a conclusion. There was no effort to attach those factors to the abstract statement of general constitutional "first principles" with which Rehnquist began his so-called analysis. Why bother? He was the Chief and had his five votes: he'd leave the theory to the profs.
Judge Hudson pulled a Rehnquist -- serving up "factors" untethered to constitutional purpose and distinguishing cases with functionally pointless distinctions -- and it galls me to see an academic as smart of Jason Mazzone applauding him for it.
Mazzone praises the action/inaction distinction for distinguishing past cases: As he rightly notes, none of those old laws upheld in past decisions required action, after all. Mazzone's praise reminds me of Rehnquist's famous "precedent slaloms" in Lopez dodging past old cases by noting that none had involved "non-economic activity." In response, I want to scream, "And none of those cases involved a cabinet member named Sebelius. So what? Why is this distinction relevant to federalism -- that is, to the theory that the feds should do some things and subnational governments, other things? Mazzone has no answer to this question: He seems to think that one "makes sense of past decisions" by distinguishing them with concepts borrowed from other unrelated areas of law (torts, criminal law, etc), as if fashioning constitutional rules were a word game and not a sober effort at self-government.
But constitutional law is not -- and should not be -- a verbal game. Just because one's proffered distinctions and factors can survive the shell game of precedent-distinguishing and nose-counting that SCOTUS and its aficionados flatter themselves to call "legal reasoning" does not mean that one has actually fashioned a rule that will promote good governance of a great republic. The ultimate purpose of the enumeration of powers is (to quote the sixth of the Virginia Resolutions that formed the blueprint for Article I, section 8) to give Congress the power "to legislate in all cases for the general interests of the union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation." If one cannot explain how the action/inaction distinction marks a line between areas where the state are and are not "separately incompetent" to act, then one has just piled up more pointless doctrinal verbiage.
Why is this sort of "doctrine" not sufficient if it gains the necessary five votes? Because no nation -- and no majority of the SCOTUS -- will tolerate for long a formal rule that bears no relationship to practical purposes of the Constitution. Sure, Hudson's ramshackle distinction might win five votes from this Court -- but then the next Court, with a couple new members, will distinguish away the so-called doctrine, disgusted with the practical emptiness of the distinctions that the doctrine tried to make law. That's what has happened with the economic/non-economic distinction in Lopez and Morrison: Being functionally senseless, the Court distinguished them into oblivion in Raich.
Unless one can explain why one's rule will match governmental powers with governmental capacity, one has not fashioned a sensible rule that ought to govern the practical affairs of a great republic. Contrary to Mazzone's assertion, one has not even "made sense" of past decisions. Instead, one has just continued to the tradition of empty formalism that has given federalism jurisprudence a bad name.
Nation Braces for Productivity Boom from Randian Economists
Since the election of President Obama, Americans have lived with the fear that libertarian economists across the country would no longer have the same incentives to write, consult, or otherwise contribute to the economy. The president's promise to end the Bush-era tax cuts for the wealthy, along with the expiration of restrictions on the estate tax, had raised concerns that these uber-productive members of society would take their talents and withdraw from society. However, with both Houses passing the $850 billion "stimulating taxes" bill and President Obama expected to sign it into law, economists are now looking forward to a boom in their own productivity.
"Certainly, we can now expect more movies, novels, concerts, and even orthodontia," predicted one Randian economist, who asked not to be named because he was embarrassed not to be working that very moment. "But we can expect the highest productivity jump from economists. We are the most sensitive to the slightest change in incentives, so from now on it's Katy bar the door!"
It was unclear what immediate effects the change in productivity will have on such economic markers as GDP, the trade deficit, or the unemployment rate. But the nation's mood is expected to brighten as this talented group of thinkers begins to participate in the labor market to their fullest economic ability.
"The possibilities are endless," said the economist. "It could be giving a talk, writing an article, editing a journal, and so on. These contributions will have a huge impact on the economy. We may even write original op-ed pieces."
One group, however, had mixed feelings about the passage of the tax compromise. Although children of Randian economists can now look forward to a larger inheritance, they no longer expect to spend more time playing with their parents. "My father said he was going to build a tree fort with us after Obama was elected," said one child who asked for anonymity, in fear of getting a time-out if named. "But just yesterday, he said his incentives had changed. At least the taxes he takes out of my allowance won't go up, either."
Thursday, December 16, 2010
Friend v. Friend
I am very excited to announce the publication of my latest book, Friend v. Friend: The Transformation of Friendship -- and What the Law Has To Do With It (Oxford 2011). It is a meditation on one of our most important social institutions that has too often been marginalized by our laws, our politics, and social science. The book suggests ways for public policy makers to grow more sensitive to how their choices impact friendship in society, as well as ways for lawyers and legislators to promote and facilitate friendships. I hope you find it provocative; it challenges some core assumptions we routinely make about the separation between the private sphere and the public sphere.
Amazon has it at the cheapest cost. I will hope to write a few substantive blogposts on the book -- and some newer work I am doing in the area -- over the next few weeks. Thanks to so many readers who helped me with this project over the years.
Institutional Failures: Duke Lacrosse
I am happy to announce publication of Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System, a collection of essays on the Duke controversy just published by Ashgate (and available on Amazon and in supermarket check-out aisles). Contributors include Angela Davis (American), Sam Kamin (Denver and a former GuestPrawf), Robert O'Neil (Virginia), KC Johnson (Brooklyn College, History), Ellen Staurowsky (Ithaca College, Sports Management and Media), Jane Kirtley (Minnesota, Journalism and Law), Craig LaMay (Northwestern, Journalism), and Rachel Smolkin (USA Today).
Doing this book was a great experience, as well as an educational one. I learned that editing chapters is, in some ways, harder than writing things yourself, because you have to balance and preserve multiple voices. I also learned a lot about organizing an edited volume, in particular over-soliciting chapters and trying to see the big picture in advance when finding contributors. I do think the final product tells the full story of the Duke mess from a number of different perspectives and a number of different disciplines, which is what I was hoping to do.
And hey, just in time for holiday shopping.
All Espionage Act, All the Time...
For those who haven't yet had their weekly fix of all-things WikiLeaks and the Espionage Act, I'll be testifying later this morning at a hearing before the full House Judiciary Committee on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks." The hearing is supposed to be covered live by C-SPAN3 starting at 10 a.m. (EST) (here), and the testimony should be up on the Committee's page by later today.
Given both the topic and the witness list, it promises to be an interesting discussion...
Christie's War against the Mount Laurel Doctrine: Do Conservatives Really Like Private Property Rights?
Last Friday, the New Jersey Assembly approved A-3447, legislation that would abolish the Council on Affordable Housing ("COAH") and significantly reduce New Jersey municipalities' obligations to accommodate the regional need for affordable housing in their zoning ordinances. Republicans actually wanted the bill to reduce suburban obligations even further.
In effect, the bill is an effort by an unholy alliance of Republicans and suburban Democrats to eliminate the 1985 New Jersey Fair Housing Act, the statutory implementation of the Mount Laurel doctrine. That doctrine, in turn, is the product of the New Jersey courts' thirty-five year war on exclusionary zoning. Under Mount Laurel, each municipality's zoning ordinance must permit sufficient residential uses to accommodate that municipality's "fair share" of the "regional need" for affordable housing. Although the Assembly is controlled by Democrats, the impetus behind gutting the New Jersey Fair Housing Act comes from Governor Chris Christie who has made the war on the Mount Laurel doctrine a centerpiece of his tenure. The opposition has come from urban Democrats who as recently as 2008 have attempted to strengthen the Fair Housing Act.
This political alignment might seem paradoxical. After all, are not suburban conservatives supposed to be supporters of private property? How, then, can they now be cheerleaders for local zoning? Zoning law is the single most intrusive regulatory interference with property in land existing in the United States: The average zoning regulation makes EPA's rules look positively libertarian. Consisting of a detailed mesh of command-and-control style regulations governing virtually every aspect of buildings -- their use, height, bulk, footprint, etc -- zoning unquestionably raises the price of housing through the restriction of housing supply.
Have Republicans gone socialist in their fondness for zoning? I think that there are two ways to understand this odd conservative solicitude for suburban zoning: (1) Hostility to class and race integration of the 'burbs and/or (2) hostility to redistribution of wealth.
First, race and class might take priority over property rights in conservative ideology. Libertarian rhetoric against intrusive government is just fine -- but not when it allows low- and moderate-income housing to invade your suburban enclave. Second, hostility to redistribution of wealth might trump hostility to regulation in conservative ideology. By insuring that each resident live in a structure of similar value, restrictive zoning insures that each resident pays a similar property tax bill, thereby transforming ad valorem property taxes into an annual fee reflecting the average costs of living in the jurisdiction.
Of course, suburban homeowners who loathe Mount Laurel might embrace both motivations simultaneously. The test for disentangling these motivations (class/racial snobbery or simple fiscal stinginess) might be whether the centralization of New Jersey's fiscal system erodes support for suburban zoning exclusion. Already, the New Jersey courts have centralized property taxation to some extent by imposing a degree of fiscal equalization on municipal educational spending. If Christie follows through on his promise to cap property taxes, then the effect of zoning decisions on one's property tax bill will be further eroded. Will New Jerseyites' love of exclusion be eroded as well? If not, then we will have a data point about what matters most to conservatives who claim to love private property.
As a conservative with a soft spot in my heart for the fee simple absolute, I cannot help but pine for the days when Republicans actually fought against restrictive zoning. Under Jack Kemp's watch as Secretary of HUD, the Republicans actually issued a report denouncing regulatory barriers to affordable housing. Taking seriously their commitment to private property rights, the Kemp Commission actually recommended that the federal government take steps to break down suburban walls to accommodate poor households' housing needs.
Now an aspiring "moderate" Republican like Christie makes war on the very principles for which Kemp, then regarded as a darling of conservatives, once crusaded. How times have changed.
Wednesday, December 15, 2010
The illusory patent quid pro quo
Following up from my previous post on patent language, it often eludes people (even patent lawyers) that much of the intuitive appeal of patents hinges on a rhetorical trick. The intuitive appeal of patents is based on a supposed quid pro quo: the patentee gets the invention that he creates. The rhetorical trick is how to define this invention. Invariably, patentees who create one version of something seek to obtain a monopoly over every version of the invention. For example, a person who invents the first bicycle might say:
I claim as my invention a transportation device comprising a handlebar and two wheels.
This sentence sounds clearly correct, and the inventor has created a bicycle. But patent law deems this sentence to really mean a monopoly over every transportation device with a handlebar and two wheels, including future motorcyles that the patentee did not create.
As I detail in this article, the idea of quid pro quo as a basis for patent grants is an illusion. Every patentee is using this rhetorical trick to claim a broader class of things than his actual creation, the question is how abstract one gets in describing the invention. For example, the claim above could be reworded more abstractly to describe "a transportation device comprising wheels," which would then create a monopoly over every wheeled device including cars and planes.
Sometimes the trick works and the patentee obtains his patent. Sometimes the trick fails and he doesn't. And whether the patentee should obtain a broader class of things than he creates is a very tricky question. But in all cases there is a rhetorical trick doing much of the work. Those who maintain that the patent system is fair because it contains a quid pro quo -- the patentee gets what he creates -- are relying on empty rhetoric.
The Patent System as an Enforcer of Intensive Parenting
Thanks to Dan and the other permanent bloggers on PrafwsBlawg for having me back. Recently, I have been studying the ways in which the law enforces Intensive Parenting. In an article titled Over-Parenting my co-author Zvi Triger and I show that parenting has changed over the last two decades. The contemporary parent is is on a constant quest to obtain updated knowledge of best child rearing practices and use this information actively to cultivate her child and monitor all aspects of the child’s life. In the article we highlight the drawbacks of Intensive Parenting and caution against its incroporation into the law.
Yet, Intensive Parenting is not merely about social norms. The intensive parent uses a vast array of technologies to cultivate, monitor and remain informed. Technology companies cater to the norms of Intensive Parenting and reinforces them by producing technologies that facilitate Intensive Parenting.
This fall, Apple received a patent for a technology that enables parents to control the text messages their children send and receive. Parents can use the technology in different ways. One way is to prevent children from sending or receiving objectionable text messages. But, control can take more subtle forms. For example, the patent abstract states the technology could require that a child learning Spanish will text a certain number of Spanish words per day.
As we know, children today text hundreds of messages a day. It seems, in fact, that texting has at least partly replaced conversations. In generations that preceeded texting, parents did not filter their children's conversations from objectionable messages nor could they enforce the practice of Spanish away from the class or home. Yet, parents driven by Intensive Parenting norms to regulate and monitor every aspect of their child's life can now control their children's social conversations away from home.
I am often asked - so what does the law have to do with Intensive Parenting? In our article, we show some ways in which the law purposefully endorses and enforces intensive parenting norms. Here, however, we have an unexpected and unintentional enforcer of Intensive Parenting - The Patent Office. The Patent Office has awarded Apple a patent and through this action indirectly enforced Intensive Parenting.
How does the award of a patent to a parental texting control technology enforce Intensive Parenting? First, the goal of awarding a patent is to encourage innovation that promotes progress. In this instance, the award of a patent encourages innovation in parental control technologies. Secondly, although the patent system does not employ moral criteria in deciding which inventions warrant a patent, it does have an expressive value. For many in the general public, the grant of a patent endorses an invention as a good and useful invention. Hence. by granting a patent to an invention that lets parents control an important part of their children's social life, the patent system effectively promotes intensive parenting norms.
Tuesday, December 14, 2010
Is a technical background necessary for patent lawyers?
One of the most frustrating things about teaching patent law is dealing with the perception that patent law is somehow "off limits" to people who do not have strong science and math backgrounds. I suspect that most tax professors face the same problem. Students are convinced that patents are incomprehensible without deep scientific knowledge.
In one way, the perception is justified. Patents often are incomprehensible, but it is not because one needs deep scientific knowledge to understand them. Instead, it is simply that most patents are linguistic monstrocities. For example, here is a typical patent claim describing the simple invention of a weight plate with three handles (the "claim" is the part of the patent that describes what it covers):
"A weight plate for physical fitness including: a plate body formed with a central throughbore and having a plate periphery; said body further formed with solely a triad of spaced apart elongated handle openings disposed generally equiangularly and positioned radially outwardly from said central throughbore and at least midway out from the center of the body to said radial periphery, said openings having respective outboard edges cooperating with said plate to define a triad of integral handle elements for grasping by a single hand to effect transport of said weight plate."
Nobody can understand this claim on the first pass, science background or not. But complicated langauge is hardly unique to patent law, since almost every elaborate regulatory regime (tax, but also food and drug, envionmental protection, and communications) involves very complicated legal language. Becoming proficient in complicated langauge is a general skill that all lawyers should share. Another piece of evidence that helps debunk the theory that patent law is complicated becuase it involves science is this recent paper finding that technically trained district judges do no better in avoiding reversal than their unwashed brethren.
Of course, the perception that patent law requires strong scientific skills that are rare among people with legal training is a net benefit to me, since fewer patent lawyers means that my skills command an anticompetitive premium in the market.
Taxes and Marginal Utility
In fact, the desire for higher taxes often seems to justify itself solely by the motive to level down. . . . . For all the talk about "fairness," Mr. Obama, Mr. Sanders and their fellow Democrats never really tell us what the magic number for fairness is. Is it 35% of income? 50%? 75%? Though they never commit themselves to an actual number, in each and every case we get the same answer: Taxes should be higher than they are now, for their own sake.
... [T]he politics of higher taxes now rests almost purely on stoking resentment. If Republicans hope to regain the moral high ground, they need to remind citizens that the argument for lower taxes and government that lives within its means is not an argument about numbers or federal revenues. It's an argument about the ability of all our citizens to realize their dreams and opportunities.
Why is anyone who suggests higher taxes on income over $250,000 "stoking class warfare"? Isn't it a matter of simple economics?One of the basic principles of economics is diminishing marginal utility. Marginal utility represents the change in utility from the increase in consumption of a particular good or service. As you get more and more of a good, your marginal utility with each increment generally decreases. Eventually, you can have so much that an additional increment adds nothing to your overall utility. Money is not a good or service, but it represents the ability to obtain goods and services. And thus one would expect money to have diminishing marginal utility as well. The more money you have, the less utility you get from each addition dollar.
So if you're constructing a tax code, it makes sense to keep this in mind. The lower the income, the higher the utility each dollar represents to that individual. Since the government is indifferent as to which dollar it takes, it makes sense to take more money that has a lower utility to the taxpayer. Doesn't $100 mean something different to someone who makes $30,000, as opposed to someone who make $30,000,000? Isn't that what the parable of the widow's mite is all about?
There are reasons not to have higher taxes on higher income -- they may hurt productivity or investment. But to claim that their only justification is class warfare ignores some basic economics.
UPDATE: Sarah Lawsky has a paper that challenges the assumption of diminishing marginal utility. Here's an abstract, which claims: "while some evidence does support declining marginal utility, other evidence suggests that a significant number of people actually experience increasing marginal utility, at least over some range of wealth." I'm curious about this evidence. The paper is apparently forthcoming in Minn. L. Rev., but I could not find a copy on the Interwebs. If anyone has any evidence contra diminishing marginal utility, please chime in.
No, this is not a gay man's whiny complaint about how our sisters are holding up our masculine march toward sexual orientation equality. It's really about female same-sex albatross couples. Personally, I wish the couple well and hope that one day their homes on Midway and Hawaii will recognize their union. (Good luck with the eggs, too!)
Federalism & healthcare: The dangers & benefits of confusing individual rights with federalism
Judge Hudson's opinion holding unconstitutional Obamacare's "purchase insurance" mandate (aka the "minimum essential coverage" rule) rests critically on the notion that there is some fundamental distinction between the feds' forcing action and requiring inaction. Somehow, a federal measure becomes less necessary and proper for the regulation of interstate commerce if the measure requires one to participate in such commerce than if the measure bars such participation.
At one level, this is deeply silly. Suppose that the feds do not forbid Farmer Filburn from consuming home-grown wheat but instead require him to consume wheat that has traveled in interstate commerce. Is it not obvious that the latter measure is more directly related to the regulation of interstate commerce than the former? At least with the "buy interstate wheat" mandate, there is some commercial activity being required. How can this not be regarded as interstate commerce?
I suspect that the real unwritten basis for Judge Hudson's opinion (and Randy Barnett's legal theory on which it is based) is the notion that, when the feds impose paternalistic or otherwise especially intrusive burdens, then their impositions ought to be reviewed with especially suspicious scrutiny under the doctrine of enumerated powers. Put another way, a libertarian theory of rights ought to be built into the limits on the federal government.
Is this mixing of rights theories and federalism theories wise?
Here is an advantage of the amalgamation of rights and federalism: Federalism becomes a sort of "libertarianism lite," a way to pursue libertarian goals by indirection. The feds are barred from traducing the libertarian, anti-paternalistic ideal, but the states can still experiment with meddlesome mandates or live-free-and-die rugged individualism. As activism goes, this devolution of controversial rights theories to the states has a certain moderation about it: The states can compete, and the best theory of rights can eventually win, one might argue, and the courts need not directly foist their preferences on the rest of us.
Here is the equally obvious disadvantage: Such a theory of federalism is structurally otiose, because it does not provide any account of whether subnational capacity to regulate the activity in question really reflects subnational preferences. If, for instance, healthcare mandates are affected by significant interstate economies, then one might predict that states will be incapable of imposing those mandates even if their citizens really want to do so. Such a collective action problem surreptiously enforces libertarianism without actually defending it explicitly: It is not libertarianism lite but rather libertarianism covert. Put another way, it is a sort of intellectual dishonesty likely to discredit federalism.
The antidote, of course, is some thoughtful account of how the states actually can address the issue that the feds are barred from addressing. Sadly, this ingredient is missing from Judge Hudson's opinion: there is no discussion of whether federal action might be "necessary" because state action is afflicted by external effects that lead to collective action problems. The opinion reads not like a defense of federal diversity but an attack on laws that force individuals to take actions (even obviously commercial actions).
As someone with libertarian inclinations, I endorse that latter attack. But using the doctrine of enumerated powers to advance this attack seems calculated to bring that doctrine into disrepute without really advancing the libertarian agenda in the long term.
Unanswered questions after Costco v. Omega
The Supreme Court has split 4-4 (Justice Kagan recused) in Costco v. Omega. This is one of those sleeper cases where the Court's decision--when the Court reaches a real decision--will probably affect every American consumer in some way, but nobody will know. The issue is whether the Copyright Act's "first sale" defense applies to foreign made goods. The reason that most people probably couldn't care less about the issue is that most people have an extremely cramped view of what is copyrighted.
The first sale defense basically says if the copyright owner lawfully sells something to a consumer, such as a DVD with a copyrighted movie, then the consumer can resell that DVD. This principle is fine, until copyright owners notice that they have to sell DVDs in China at greatly discounted prices in order to compete with pirates there. Noting this problem, Justice Ginsburg in a concurrance in a previous case suggested that, because the statute codifying the first sale doctrine immunizes only goods "made lawfully under" the U.S. Copyright Act, this means the first sale doctrine only applies to copyrighted goods made in the United States. Note the key word is "made," not sold. Under the narrowest interpretation of the first sale doctrine, even something sold in the U.S. by the copyright owner is not covered by the first sale doctrine if manufactured abroad.
At this point, most people probably still don't care very much, since only a small number of people import classic copyrighted goods like books and DVDs from other countries and want to resell them. Except then we see the actual "copyrighted good" at issue in Costco v. Omega: a watch where the only copyright is over a tiny logo etched into the back. The point is that practically every good in the market is a copyrighted good. Which means that if Justice Ginsburg's view is right, then reselling practically anything made abroad -- a Japanese made Toyota, not to mention all the things "made in China" -- becomes copyright infringement.
Because the Court split 4-4, all eyes will be on Justice Kagan in the next case where she isn't recused. Given the stakes, it is only a matter of time before this issue returns.
Monday, December 13, 2010
Crush Videos and Obscenity
Last week President Obama signed into law the Animal Crush Video Prohibition Act of 2010, Congress's response to the Supreme Court's decision striking down an analogous (but far broader) statute last term in US v. Stevens. The statute raises a number of interesting issues, but one that struck me off the bat is the concept of "obscene" crush videos. The statute focuses heavily on obscenity: it includes a finding that crush videos satisfy all the requirements under the Court's Miller standard, and its operative provision requires that a video be obscene before it comes under the prohibition.
So here's my first-blush question: does the concept of obscenity make sense in the context of sexual fetishes not involving sex? In Miller the Court explicitly says that obscenity statutes must confine themselves to depictions of sexual conduct. And indeed, conceptually the Miller elements seem to be a bad fit with sexual fetishes involving activity most of us would consider non-sexual. For example, it's one thing to say that a depiction of sexual activity appeals to the prurent interest in sex; there's a sense of voyeurism about sexual depictions that easily fits into the concept of prurience. But a depiction of crushing an animal, or of a man or a woman in a police uniform, or of any other scene that someone might find to be titillating? For most of us these depictions have minimal sexual content, but for those with the particular fetish, their sexual content is quite high.
There's an obvious -- if ironic -- truth here: people who have majoritarian sexual stimulants -- call it "good looking people getting naked and acting sexually" -- can expect to have the most extreme versions of their sexual "fetishes" subject to regulation (at least at the margins), while people with distinctly minority tastes -- e.g., getting turned on by uniforms -- will usually have a protected supply of material. Nobody would ever think of banning depictions of uniforms because some people find them a turn-on. The interesting question arises when there are depictions of conduct -- such as crushing animals -- that presumably has, at best, miniscule social value, but that serves as a sexual fetish. Can we appropriately think of that as obscenity? Maybe we can, but it seems we'd have to alter not just the technical aspects of Miller's holding, but our entire conception of what it means for something to be sexually obscene.
Sunday, December 12, 2010
Ten years after Bush v. Gore
Today marks the tenth anniversary of Bush v. Gore and the end of the 2000 Presidential Election. As Ann Althouse says, what would it have been like to be a blogger at that time. At Election Law Blog, Rick Hasen has a series of reflections on the case from Lyle Denniston, Heather Gerken, Rick Pildes, and Nate Persily. Edward Foley adds his thoughts. Of course, views on the entire controversy still are colored by politics--compare Eric Alterman with George Will.* And on a personal note, I enjoy teaching the case in Fed Courts and forcing students to see that there at least purported to be some law going on there.
For now, I want to give a thought on the lasting visual image of this night. As Pildes recalls:
In an image that remains iconic of that night for me, two of NBC's top reporters stood on the steps of the Court, lit up by television lights and framed by the deep-black of a December's night sky, as they took turns reading out loud paragraphs from the Court's decision.
I don't remember if I was watching NBC or another network that night; reporters for all the networks were doing basically the same thing. It all reminded me of watching a bunch of thoroughly unprepared 1Ls who had not done the reading or even thought about what the case might say, had been cold-called, and were trying to bluff their way through it, reading the opinion and answering questions as they went, jumping around from page to page trying to find the key language that would tell them the result and the end-game, and stammering through their answers.
Another reason not to cold call.
* While I share Alterman's political and historical views, I also would point out that Will's commentary closes with a hypothetical that, deliberately or otherwise, completely misstates the meaning of 3 U.S.C. § 5 (the statute the Court cited as grounds for ending the recount).
Is it fair (or of any use) to describe Mark Madoff's suicide as part of his dad Bernie's "punishment"?
As detailed in this ABC News piece, which is headlined "Madoff Son Found Dead On 2nd Anniversary of Dad's Arrest," one of the sons of Bernie Madoff took his own life last night. Here are the basic details:
Two years to the day, and almost the precise hour and minute, of his father's arrest by the FBI, Mark Madoff, son of the disgraced Ponzi schemer Bernard Madoff, was found hanged inside his Manhattan apartment, an apparent suicide according to police.
Madoff had reportedly learned in the last week that he faced possible criminal charges in both London and New York.
Madoff left behind several emails, including one to his wife, Stephanie, telling her that he loved her, but no explanation of why he chose to take his life. "I love you," the email said. "... send someone to take care of Nick."
In a separate email to his lawyer Martin Flumenbaum, Mark Madoff wrote, "No one wants to hear the truth take care of my family," according to law enforcement sources. He also sent one to his wife and to his father-in-law asking that someone come to get the couple's two-year-old child.
Upon receiving the emails, which were written in the early morning hours after 4 a.m., Stephanie, who reportedly was in Florida with at least one of the couple's other children, contacted her father. He came to the apartment and found his son-in-law hanged in the living room around 7:30 a.m. Saturday, police said. The two-year-old was sleeping peacefully in a bedroom nearby, police sources said.
Madoff had used a black dog leash to hang himself, police said. His labradoodle, Grouper, was found nearby unharmed.
"At about 7:30 this morning police responded to 158 Mercer Street," said New York City police commissioner Ray Kelly. "Mark Madoff was found hanging from a pipe in the living room of the apartment. Mr. Madoff apparently left some email notes. There was no note at the scene, but [he] communicated with members of the family."...
According to sources close to the family no one could have seen the suicide coming, although Madoff, 46, had been distraught, felt unemployable, and was sure that he would never be able to extricate himself from the thickets of notoriety....
Madoff and his children were being sued for all of their wealth and he faced the prospect of criminal prosecution in two countries.
I am never quite sure how to respond emotionally or intellectually to a high-profile suicide of someone I have never known. But I am sure that this sad additional chapter of the saga surrounding Bernie Madoff's spectacular crimes prompts a number of questions for the sentencing scholar in me.
One theoretical question appears in the title of this post, and I especially mean for the question to prompt some reflection on the relationship between personal pain and the concept of punishment. The connection between pain and punishment is getting lots of scholarly attention lately, and the fact that Bernie Madoff must be experiencing personal pain as a result of his son's suicide leads me to wonder if this event might be thought of as another part of his punishment.
A related practical question concerns whether Bernie Madoff now regrets having pleaded guilty. At the time of his guilty plea, the only significant benefit Bernie seemed to garner was the chance to try to protect his family from some of the fall-out from his crime. But the suicide of his son suggests that Bernie's efforts to shield his family were not especially successful.
Friday, December 10, 2010
Wikileaks and TMI: A Scholar's Perspective
I've been feeling guilty for not blogging about Wikileaks after the release of diplomatic cables (see my earlier post here). The problem is that the story is so rapidly evolving, and I've been so busy (it is, after all, THAT time of year), that I didn't want to weigh in and just duplicate the thoughts of others or sound off in a way that betrayed a lack of understanding of all the factual nuances of the case. I'll just have to content myself with providing a link to Daniel Drezner's piece in The Chronicle of Higher Education, which deals with some aspects of the brouhaha I've also been thinking (but not writing) about. I've been thinking about how journalists cope with the sudden dumping of thousands of pages of disjointed information (which, despite its volume, may not really be "ALL" of the information). What happens when you have too much information, rather than not enough? Does it make the role of a learned intermediary sorting through thousands of pages of raw data and putting them in context more important rather than less? Are journalists equipped to perform this role?
Drezner's piece recognizes the problem of TMI from a historian's perspective and worries about getting "caught out" by a document release that suddenly casts a different light on the intent of policymakers than one could glean from the events themselves. Drezner also considers what the Wikileaks controversy means for the future of government secrecy. He frets that government will significantly tighten the clamps information in the future in response to the controversy. On this point, I suspect his fears are misplaced. The Wikileaks controversy reveals that even if the government wishes to exercise more control over information in the future, it simply can't. [Admittedly, though, I still fail to see how Bradley Manning had access to so much information, apparently without much oversight (assuming those are the facts).]
Sixth Annual "Conference on Christian Legal Thought" (at AALS)
Details after the jump. The gathering includes our own Paul Horwitz.
The Sixth Annual Conference on Christian Legal Thought
Books on Christianity and the Law
Saturday, January 8, 2011
Thursday, December 09, 2010
Of capacity, contractual and otherwise
I had just started grading what seems like hundreds of exams, and I got to thinking about contractual capacity. Okay, thinking about contractual capacity is sort of like grading, so I can take a break, right? Okay then. Contractual capacity is typically thought of as the ability to understand the nature, purpose and consequence of the arrangement- are you capable of understanding that what you are entering into is a contract? The law chooses to protect those lacking capacity from entering into binding contacts, and in the case of one such group, our minors, we presume that they lack capacity.
So why the difference in tort law? A recent New York case got some ink about a month ago when Justice Paul Wooten in Manhattan ruled that a little girl named Juliet who was accused of running down an 87 year old woman with her training-wheel encumbered bicycle on a NYC Manhattan sidewalk two years ago could be sued for negligence.
Juliet and her accomplice were riding their bikes on the sidewalk and ran into this elderly woman who was leaving her building. The elderly woman died three months later, of unrelated causes, but it’s still sad and it’s still not a great fact for little Juliet.
Juliet was, at the time of the incident, 4 years and 9 months old [or as my little daughter would say 4 and ¾ - I wonder at what point do we stop giving our age including quarter years?] Her lawyer argued that infants under the age of 4 are non sui juris, or incapable of negligence as a matter of law. Justice Wooten declined to stretch the non sui juris rule to kids over 4, and after all, little Juliet was virtually 5.
Keep in mind that the ruling by Justice Wooten did not find that the little girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward.
So my question to you all is whether 4 and ¾ years is old enough to be sued for negligence? Little Juliet couldn’t enter into a binding contract yet. She probably can’t even get a library card, depending on the relevant library rules [in my town kids need to be able to write their name in legible cursive- I’m lucky they even gave me a card.] Meanwhile, I’m keeping my kids firmly on the playground blacktop populated only by other little kids and brave parents, to preserve my assumption of the risk defense.
Why Allowing States to Go Bankrupt is a Horrible Idea
At the end of November, an article by David Skeel in the Weekly Standard got many conservative folks a-chattering about letting states go into bankruptcy. The new meme apparently has already had policy ramifications, as James Pethokoukis reports:
Congressional Republicans appear to be quietly but methodically executing a plan that would a) avoid a federal bailout of spendthrift states and b) cripple public employee unions by pushing cash-strapped states such as California and Illinois to declare bankruptcy. This may be the biggest political battle in Washington, my Capitol Hill sources tell me, of 2011.
That’s why the most intriguing aspect of President Barack Obama’s tax deal with Republicans is what the compromise fails to include — a provision to continue the Build America Bonds program. BABs now account for more than 20 percent of new debt sold by states and local governments thanks to a federal rebate equal to 35 percent of interest costs on the bonds. The subsidy program ends on Dec. 31. And my Reuters colleagues report that a GOP congressional aide said Republicans “have a very firm line on BABS — we are not going to allow them to be included.”
In short, the lack of a BAB program would make it harder for states to borrow to cover a $140 billion budgetary shortfall next year, as estimated by the Center for Budget and Policy Priorities. The long-term numbers are even scarier. Estimates of states’ unfunded liabilities to pay for retiree benefits range from $750 billion to more than $3 trillion.
It's clear that states like California and Illinois are much closer to financial default than anytime in the recent past. But allowing states to go bankrupt -- i.e., creating a mechanism which would allow a court to restructure a state's future financial commitments -- is a bad idea with terrible consequences.Why is bankruptcy necessary? As Skeel makes clear throughout the article, the main culprits are overpaid public employees:
California—recently dubbed the “Lindsay Lohan of states” in the Wall Street Journal—has a deficit that could reach $25.4 billion next year, and Illinois’s deficit for the 2011 fiscal year may be in the neighborhood of $15 billion. There is little evidence that either state has a recipe for bringing down its runaway expenses, a large portion of which are wages and benefits owed to public employees. . . .
With liquidation off the table, the effectiveness of state bankruptcy would depend a great deal on the state’s willingness to play hardball with its creditors. The principal candidates for restructuring in states like California or Illinois are the state’s bonds and its contracts with public employees. . . .
California’s most important creditors are its bondholders and its unionized public employees. . . .
Are public employees overpaid? Well, it depends what you mean. If you mean that they are paid more than the states can afford, given the current tax revenue, the answer seems to be "yes" in many states. But are they paid more than they negotiated? No. Are they paid more than comparable private employees? The evidence is mixed. For example, look at this article in the Oregonian about public employee pay:
Yet one fundamental question underlying the debate is whether Oregon's public employees are overpaid.
The objective answer is generally no. Not yet anyway.
It's true that on average, state employees make more than private-sector workers. But the average says more about the professional-type jobs dominating the public work force, and the vast number of unskilled, low-paying jobs in the private sector, than it does about state pay practices.
When the analysis focuses on comparable jobs and education levels, the total compensation of state employees is slightly less than their private-sector counterparts and slightly more than public employees at other levels of government and in neighboring states. That conclusion is consistent whether the data comes from the state's compensation surveys, academic and private-sector analyses, or federal data.
Moreover, look at this graph from the Oregonian:
The highest point on the graph -- the 2004 pay and benefits to the average employee -- is $61,301. That's the highest point on the graph. Average 2009 salary is $41,200. The average California public employee salary is $57, 536. By the way, click on that link and you'll see that the five highest paid public employees are two head coaches (each making over $2 million) and three med school professors.
So yeah, let's allow states to go bankrupt. The bondholders would likely get killed -- and who knows what the interest rates on state bonds would go up to. Skeel is sanguine: "The bond market wouldn’t be happy with a California bankruptcy, but it is already beginning to take account of the possibility of a default." Um -- I think the possibility of bondholders losing money is MUCH greater once Congress allows states to go bankrupt, and I think the bond market would "take account" of that much differently. Oh -- "And bondholders can’t pull their funding the way a bank’s short-term lenders or derivatives creditors can." So that's nice -- they're trapped like rats, so what they do about it doesn't really matter. And state bondholders are usually older folks who need "safer" holdings, but I guess that only means they won't be around so long to complain about it!
What about that other group of creditors?
As for California’s public employees, there is little reason to suspect they will be running anywhere.
Do I hear a little chuckling after that?
If the public thinks it's overpaying its public employees, there's an easy remedy -- elect representatives who won't pay as much. Of course, this is when the same folks who defend Citizens United will bemoan the awesome political power of public unions -- like this, perhaps:
During his recent campaign, Governor-elect Jerry Brown promised to take a hard look at California’s out-of-control pension costs. But it is difficult to imagine Brown taking a tough stance with the unions. Even in his reincarnation as a sensible politician who has left his Governor Moonbeam days behind, Brown depends heavily on labor support. He doesn’t seem likely to bring the gravy train to an end, or even to slow it down much.
So the only answer is to cut off federal assistance. And rather than raising taxes or slashing expenses, the current leadership of states like California and Illinois can take the state into bankruptcy and tell its bondholders and employees to go jump off a pier.
I'll give Skeel one point for consistency -- he was against the AIG and Bear Stearns bailouts; he thought they should have gone bankrupt, too. But they didn't. To me, the case for a federal bailout of a state is much stronger than a bailout of a financial institution. The state isn't going anywhere. The feds can get their money back in a variety of ways. And whereas a bankrupt business cannot get more money out of non-existent customers, a state can always raise taxes or even sell off public holdings. It may not be pretty, but the money is there.
One final note -- a point that shows the absurdity of where we are. If this federal government bails out AIG so that Goldman can get a $1 for every $1, but then lets states restructure their debts so that a 65-year-old ex-cop get $0.25 on the dollar, there may in fact be rioting in the streets. And that would be bad for the economy, no?
UPDATE: Felix Salmon also thinks the bond market would freak out.
Vladeck on Diane Rehm
Negotiating with Hostage Takers
Reading media reports, President Obama apparently justified the tax cut compromise by saying that "it is tempting not to negotiate with hostage takers." This, to me, reflects a seriously warped understanding of the proper way to deal with hostage takers. Temptation implies that there is a clearly right course of action, but our emotions tug us in the other direction. In the case of hostage takers, the temptation is to pay the ransom, whereas the clearly right course of action is to not pay, since paying might save one hostage but provides an incentive for future hostage taking. Obama's comment suggests that he doesn't share this view.
I wouldn't want to get too hung up on a stray comment that was probably written by s apeechwriter anyway. Actions speak louder than words. Except . . . Obama's actions in cravenly caving on just about every issue except healthcare (and even then caving on the public option) suggest that this is not a stray comment but really his guiding philosophy.
Even a Republican who opposes every single one of Obama's domestic priorities should be troubled by the fact that the President of the United States has a penchant for cravenly caving to people he regards as hostage takers, even going so far as to think it is his moral obligation to so cravenly cave. In a large and dangerous world, there are many foreign enemies who often take hostages, either figuratively (e.g. North Korea) or literally (e.g. North Korea). That the current U.S. President may be the most incompetent hostage negotiator ever to hold the job does not make me feel good as an American. While you are more likely to be bailed out if taken as a hostage, you are also more likely to be taken as a hostage in the first place. . .