Saturday, June 30, 2012
Diseconomies of Scale: The case for limiting federal involvement in educational policy
Today's New York Times reports that the Obama Administration has granted yet more waivers from No Child Left Behind's patently unrealistic 2014 deadline for meeting statutory educational goals. NCLB was supposed to be renewed in 2007, but Congress has been too paralyzed by partisan gridlock to revise federal educational policy. The Obama Administration has stepped in to fill the vacuum with patently lawless but also absolutely essential waivers of NCLB's "mandatory" goals, replacing them with a sort of "cap-and-trade" educational benchmarks in which multiple disadvantaged groups can be lumped together into a single mega-group, such that lack of progress in one group can be offset by educational achievements of the others. These waivers are lawless, because NCLB nowhere provides such discretion to the executive: Far more than immigration policy or executive privilege, educational policy under the Obama Administration is Exhibit A for Terry Moe's and William Howell's thesis that the executive relentlessly expands its power in the American constitutional system.
It is hard to blame the Obama Administration for waiving preposterous NCLB educational goals: These goals were pulled out of the sky by national politicians with short time horizons and a taste for inflated rhetoric. Yet the Obama Administration seems hell-bent on repeating the hubris of NCLB by attaching various "core curriculum" standards as conditions for its NCLB waivers -- curriculum standards that can succeed only with sustained local support that U.S. DOE Secretary Arne Duncan cannot possibly conjure up from Washington, D.C., even assuming that he stays in power for another four years. Mike Petrelli of the Fordham Institute warned Duncan against this hubris almost a year ago, noting the danger of provoking a backlash that will discredit the curricular proposals (all of which, on their merits, seem pretty sound to me). But the Obama Administration proceeds apace, apparently oblivious of the fact that they do not have the educational foot soldiers in place to carry out the reforms after the waiver agreements are signed in DC.
As I argue in a paper forthcoming in Notre Dame Law Review, the problem is that education suffers from diseconomies of scale. As one enlarges the scale of government providing or supervising educational services, the population becomes more heterogeneous and the gridlock, more intractable. It is the old "Federalist #10" story -- but with the moral reversed: The national government's inability to respond to a decisive national majority turns out to be a tragedy, not a benefit. The problem is not that the feds' ideas about how to promote good schools are bad ideas: The problem is that the feds lack the capacity to mobilize stakeholders who care about children to support those good ideas. When the feds play the heavy, micromanaging providers through conditions on federal dollars, the typical result is that, at best, those conditions are simply ignored and, at worst, those ideas are discredited by angry subnational backlash.
The Hoover Institute's Koret Task Force Report on educational reform, to my mind, provides the best blueprint for a federal role in educational policy: Provide data to help parents make informed choices and directly finance low-income households’ education in public and private schools to overcome problems of educational inequality. I do not say that this modest role is the world's best educational program -- only that it is the only educational program that the feds can sustain over the decades necessary to turn our schools around.
Friday, June 29, 2012
Of "Victory," Voir Dire . . . and Vacation
This summer I am writing an article that is in part about a 2009 Connecticut decision regarding the scope of voir dire in a same-sex sexual assault case. As part of that research, I read a well-done student piece by Paul R. Lynd that appeared in 1998 in the UCLA Law Review entitled Juror Sexual Orientation: The Fair Cross-Section Requirement, Privacy, Challenges for Cause, and Peremptories. Lynd's student work was supervised by Prof. Bill Rubenstein, and it remains a good read more than a dozen years later, describing cases including the Dan White trial. But what I found most thought-provoking was Lynd's argument why, in 1998, it was problematic to ask jurors about their sexual orientation. He explained: "The pressure to conceal gay or lesbian sexual orientation would be particularly strong in states where gay and lesbian sexual conduct remains illegal and in the majority of states where employment discrimination based on sexual orientation remains legal." Of course, these concerns remain valid in many jurisdictions and contexts today. Unless I missed something during all the ACA coverage, DOMA remains in force and ENDA has not yet been passed. On the other hand, since Lynd's article appeared, the SCOTUS decided Lawrence v. Texas. Six states and the District of Columbia now recognize same-sex marriage. In fact, just tonight I purchased Linda Hirshman's new book declaring Victory for the gay rights movement. Reading Lynd's article, I found myself wondering whether courtroom dynamics and jurors' privacy concerns might be changing, at least regionally. In some states, might increasing numbers of jurors find themselves answering voir dire questions that reveal the gender of their spouse? And will that process make the whole thing less of a big deal? Of course, answering direct questions about your sexual orientation under oath, in open court, is different from deciding to announce your [same-sex] wedding in the New York Times. Russell Robinson has described the dangers of government-enforced outing. But a world in which such wedding announcements are routine is a changing world. Has the privacy calculus described by Lynd in 1998 changed too? And is this part of the "victory" hailed by Hirshman? At any rate, with that, I am signing off for June. Toting Hirshman's book, I am heading to New Hampshire to vacation with my fiancee and our children. I look forward to guest-ing again at prawfs in September, and hope that everyone finds time to relax with their families this summer!
Chief Justice Roberts: Pro-Taxation Kind of Guy?
For an interesting perspective on Chief Justice John Roberts may be the (intellectually) lineal descendant of Louis Brandeis, take a look at John Witt's erudite post over at Balkinzation. John notes that Roberts clerked for Judge Henry Friendly who was Brandeis' favorite clerk -- and Brandeis was one of the majority upholding the Social Security Act in Steward Machine v. Davis. John also notes that Friendly, as a judge, generally ruled in favor of a broad reading of the feds' taxing authority. So maybe Roberts' reliance on the federal taxing authority has deep roots?
Note, by the way, that Steward Machine relies on an almost perfect nexus between the burden imposed by the denial of a federal tax credit and the burden imposed on a federal fisc by state refusal to create a system of unemployment insurance: In states where there is no state payroll tax, the feds impose a federal payroll tax to cover the cost of the federal UI system to replace the system that the state refused to create. A federal power to impose regulatory taxes cabined by such a tight nexus is no threat to any rational system of federalism. As I noted earlier, there are hints in Roberts' opinion suggesting that he would limit federal taxing authority by some such nexus to distinguish "penalties" from true taxes. If so, maybe Roberts inherited Brandeis' love of federalism as well as deference to federal taxing power.
20 quick reactions to the Juvie LWOP cases (Miller and Jackson)
I had the chance to read the Mandatory Juvie LWOP cases this morning and thought I'd share some reactions and questions I had for those of you who have read the opinions also. [Some comments will be cryptic to those who haven't read--sorry.] Admittedly, many of these reactions are concerns I have as I think through the recent cases' relevance to the constitutional arguments I'm making in Luck or Law, my work in progress having to do whether there's reason to think that indeterminate sentencing schemes (for adults) are unconstitutional. So I hope you'll forgive any sense of looking at this case from the hammer-nail perspective. After the jump, 20 rushed observations and questions.
1. First, I noticed Justice Kagan's loose language in the first paragraph talking about "our cases' requirement of individualized sentencing for defendants facing the most serious penalties." The cases she later refers to have to do with the death penalty only (b/c Harmelin is still good law and allows mandatory LWOP for adults) and in fact don't require purely individualized sentencing, but rather require that some finding more than a mere killing be present (ie., Gregg is still good law). So it's important that we don't equate Kagan's description of the case law as amounting to the same kind of individualized sentencing present in Williams v. New York.
2. I was surprised that more of the majority didn't join in the concurring opinion by Breyer and Sotomayor. Why do you think at least Kagan and Ginsburg didn't join in?
3. Here's my biggest question. I have trouble understanding the problem with the idea of a mandatory statute if it is one that builds in the determinations of culpability that are so important to the majority. For example, say a state passed a statute that roughly said: if you're a) 17, and, b) upon a state-funded (or privately funded) psych eval, turn out to show no basis for diminished culpability because you're incredibly smart and mature, never experienced any abuse or neglect, and c) you intentionally killed a bunch of people, and d) there are no other mitigating factors that a judge (or jury) could find by a preponderance of evidence having to do with a factor that we've not already alluded to in this statute, then e) we want you to sit in prison for the balance of your life. No exceptions to LWOP, in other words, unless there's an express determination of mitigating factors by the court/jury. In situations where there were findings of mitigating factors, then LWOP could categorically not be used.
If you leave out the parole option, this addresses all of what bothers the Court in Miller so long as it's a judge/jury that has a chance to make a determination of (global) culpability prior to sentencing. And yet, it seems like the Court is requiring that no hint of mandatoriness is allowed even when there is a much narrowed class of persons affected. Am I wrong? Why couldn't something like this also address the issues d/p cases for adults post Woodson/Lockett.
I don't get why it is constitutionally unkosher for the legislature to set out ex ante the criteria for global culpability analysis, especially when it leaves a safety valve for ex post deviations when the decisionmaker seeks to mitigate on the base of a factor not previously considered and embraced (or expressly rejected) by the legislature?
4. In referring to Miller's prior offenses, Kagan referred to criminal mischief as "criminal mischief." Are the scare quotes there because of doubts about the nature and contours of the crime. Typically it's a crime against property not involving theft, such as defacement or destruction. So why the scare quotes for that but not for truancy?
5. I'm interested, like many other crim law theorists, in the relevance of bad luck and resulting harm. The Court imposes a distinction between homicide and nonhomicide offenses (fn 6) even though the presence of a dead body might be a function of bad luck to the offender. If an offender intends to kill someone but fails to do so, shouldn't a legislature be permitted from a constitutional perspective to make attempts to calibrate punishment to culpability rather than harm? I'm not saying mandatory LWOP should be available for any juveniles--in fact, as a policy matter, I don't think juveniles can even be retributively punished, and I'm not sure they can from a constitutional perspective either. I'm just curious about the line-drawing going on. I worry that the Court might unwittingly be signing on (or reaffirming from Graham?) a position that is rejected by many if not most crim law folks. I'm not sure this can easily be disregarded as dicta either. Am I wrong about that?)
6. Kagan's description of Miller's case had a tincture of blaming the victim. She took special effort to mention that the person killed by Miller was an adult who was drinking and getting high with Miller. This came up as the kind of fact that might mitigate Miller's culpability or the wrongfulness of the action. Is this the kind of mitigation we want judges and juries to make? (Color me doubtful.)
7. It seems the clear holding from the case is that the institutions of parole must always be available in every jurisdiction for juveniles who are convicted (even though it's clearly constitutional to remove parole for anyone convicted as an adult). I think I can sign on to this but since I'm skeptical that parole as presently practiced for adults is constitutional because of how it permissibly operates in a lawless fashion, I worry that this new constitutional mandate for juveniles is problematic too. I guess it's fair to note that the court works one case at a time and whatever may be unconstitutional about parole is not before the court re: this case. (I worry that the Court has too sunny a view about parole and that this blinds them to the triviality of their remedy here.)
8. I shared Justice Alito's observation that the Kagan opinion used the word "children" to refer to all minors. This is a rhetorical move, and not a regrettable one necessarily, but perhaps somewhat misleading and at least worth noting.
9. As a meta-matter -- reflecting on the sources or the ratio decidendi -- the Court focused on precedent's trajectory and what had to be preferred policy views (that I share) rather than much looking at text or history or objective trends about evolving standards of decency. Again, I don't necessarily disagree with this move or the ultimate decision, but it's always important to note how the various modes of interpreting the Constitution either support or conflict with each other. (Indeed, I wonder how Richard Fallon would view the reasoning of this case. In a famous HLR article on constructive coherentism in constitutional interpretation, he put precedent the lowest ranking in terms of privileged sources. By roughly disregarding the "unusualness" here, did the Court botch this decision on Fallon's view?)
10. Looking at Kagan's last paragraph, it seemed more evidence for the view that negative retributivism serves as a constitutional value. This was a position I attributed to the Court here, in discussion of the Panetti case, among others.
11. I always enjoy the idea of constitutional math. This case reduces to: Graham plus Woodson/Lockett = Miller.
12. Re: Breyer's concurrence: what if you lack intent to kill but nonetheless kill someone as a juvie: would he think LWOP is permissible? If so, wouldn't this embrace of moral luck upend the values of Tison? In other words, isn't felony murder constitutionally crappy in the absence of evidence showing that the principal's wrongdoing is also attributable to the accomplice? I would hope that the focus for imposing the most severe punishments would be on the culpability of the offender and not the accidental or reckless appearance of a dead body. Cf. my earlier point about moral luck in note 5.
13. Re: Roberts' dissent, it seems from the first couple pages that the mere fact of pervasive punishment practice is enough to make it not unusual and therefore categorically not an 8A violation. This has interesting implications for my indeterminate sentencing argument; b/c indeterminate sentencing is still the dominant sentencing procedural practice, it means that if the argument I want make is to get any lift, it would have to be done under a non-8A provision, at least to appeal to Roberts and the 3 other conservatives. The only way around that might be to appeal to the historical argument Laurie Claus makes about the cruel and unusual clause as a harbinger of equal protection values. This was an interesting reading of the 8A and the 1689 Bill of Rights. Anyway, something I'll have to think about. I guess the mere fact that Roberts' view is a dissenting view might mean that I can still argue there's an 8A argument against ISS because unusualness is not really all that important anymore...just thinking out loud here, not sure I'm persuaded by this.
14. The various dissents all reflect the concern that opinions have a dynamic effect in shaping attitudes toward decency and punishment. And they all worry about this development because of how it might allow judges to displace democratic assessments of the policy issues. (See the evaluation of the Court's claim that LWOP for some juvies "will be uncommon.")
15. It's no doubt a trite and certainly too broad-brushed an observation but here it is: the conservatives seem to have less trouble permitting democracy to do its work in the context of punishing minors than in the context of allowing it pass social welfare legislation. Flip it around and you note the liberals are more skeptical about democracy when it comes to punishing kids than they are with managing 1/5 of the economy through health care legislation. Yeah, I think that's about right :-)
16. Re: Thomas's dissent, gotta give him credit for his convictions re: the anemic use of the 8A. So, on his view, it's constitutionally fine for the mandatory imposition of the death penalty on 14 year olds for a variety of non-homicide offenses. Wow. Ok, seriously, why is it the case that the history is dispositive of the way to interpret the original public meaning of the words? At best it is relevant evidence about the expected application of the framers but how does that fix the semantic meaning let alone provide a decision rule? I don't get it entirely. Or, perhaps I get it, but I don't think CT and AS have explained their math in these opinions adequately.
17. I wish Thomas' opinion would rely more directly on the historical sources for his claims about the history instead of the judicial opinions that reflect his view of the history. I'm particularly troubled by what I see as a conflict b/w the legal history of the discretion allowed to judges in cases like Williams 1949 (and also told by Stith and Cabranes in 1998 book on fear of judging) and the story about discretion told by Thomas in this case (or even Apprendi's majority).
18. Re: Alito's dissent: why doesn't he mention the fact that Coker also used foreign law, not to mention some of the earlier 8A cases?
19. Alito's reference in n. 2 to the grounds for sentencing guidelines is interesting for my LOL project. I wonder if he's open to the constitutional values of guidelines or just the policy benefits.
20. Dramatic ending to the opinion: "The Constitution does not authorize us to take the country on this journey."
Ok, that's it. I'm out. Happy weekend!
Thoughts on Alvarez
As a citizen and admitted liberal Democrat, my main focus going into yesterday was on ACA. As an academic, my real interest was in United States v. Alvarez, the challenge to the Stolen Valor Act. My partisanship trumped my intellectual interests for a day (there I go, ignoring our motto again), but now I'm back. Mary-Rose Papandrea does a good analysis at CoOp and she and I have similar First Amendment visions, so I generally agree. [Update: Margot Kaminski has more thoughts, including a tension between Justice Breyer's approach and the commercial speech doctrine and about other areas of in which the issue of protection for false speech may arise]
A few further thoughts.
1) All three opinions seem sedate, without a lot of the soaring rhetoric and efforts to separate the speech from the speaker that we often see in First Amendment cases, although Kennedy's lede ("Lying was his habit") is a nice touch. Maybe everyone was exhausted from everything else going on this week.2) Kennedy applies "exacting scrutiny," but using slightly different language. He speaks of a requirement that the restriction be "actually necessary" to achieve its interest and a requirement of a "direct causal link between the restriction imposed and the injury to be prevented." He pulls that language out of Entertainment Merchants (the violent video games case), although it was used in a slightly different context. It sounds as if this is invigorating the "least restrictive means" prong of the strict scrutiny test, but it is hard to know precisely what this new language means.
3) The entire Court was very accepting of the government having a compelling interest in maintaing the integrity of, and respect for, military awards. I am surprised that we did not see at least a mention of the various flag cases (Johnson or Barnette), where the Court rejected the idea that the government can restrain speech to ensure respect for government and government symbols. From the logic that false speech is not an unprotected category, it should follow that government cannot restrict false speech to serve that interest, just as it cannot restrict non-factual speech or advocacy to serve that interest.
This is especially so because Justice Alito spent some time talking about the harm caused by these false statements to "the very integrity of the military awards" and "the system of military honors." But is that any more subject to harm (justifying restrictions ons peech) than the integrity of the flag?
4) Breyer's concurring opinion is troubling, even more so because Kagan joined it. The latter is surprising because Kagan's scholarship indicated a far more speech-protective position than this opinion showed (although Mary-Rose points out that it is consistent with the argument she made as S.G. in Stevens). But Breyer is harkening back to early Justice Stevens, who lowered the level of scrutiny for low-value speech in two plurality opinions (see Young v. American Mini-Theaters and Pacifica). But Stevens never got a majority for this approach; Justice Powell always resisted the judicial role in judging the "value" of speech. I had thought that a majority of the Court had moved away from the idea that something content-based got anything less than strict scrutiny based on its perceived value. Breyer did not deny that the SVA was content based, but he insisted, after some discussion, that this intermediate scrutiny was appropriate. Breyer is at this point applying general balancing tests for all cases, looking for, as he says, "proportionality." This opinion reads a lot like his concurring opinion in Bartnicki.
5) I expected the Court to invalidate the law. My only hesitation had been the possibility that a majority might seize on the government's argument that false statements are protected only to the extent necessary to afford "breathing space" to true speech. In some ways, all three opinions adopted this view. The difference is the plurality finds a chill on speech from any government power to dictate truth or falsity, while Justice Breyer and Justice Alito are only concerned with speech about social sciences, arts, history, philosophy, etc.
6) This decision should mean that electoral lies statutes also cannot withstand First Amendment scrutiny. I suppose the distinction would be that this case turned on a harm principle and the absence of any harm caused by lies about military awards, while recognizing that other laws which punish lies (such as perjury and the prohibition on making false statements to the federal government) interfere with government processes, sufficient harm. Is there an argument that elections are government processes?
Comments on ACA post-mortems
A couple of comments on other people's commentary on the ACA decision:
1) At CoOp, Joseph Blocher is "genuinely confused" by Chief Justice Roberts's explanation for why his Commerce analysis was necessary. I discussed what I believe to be his syllogism on this, although I doubt its merit. I previously raised the issue of how this plays out, as with ACA, when Congress enacts legislation pursuant to several powers. Joe raises the opposite concern: Suppose Congress enacts legislation explicitly relying on only one power and the administration defends on that power alone. Can the Court decide that the law "reads more naturally" as grounded in a power on which Congress never relied and analyze that power (as a necessary part of the decision and thus part of the holding) before discussing the power on which Congress actually relied? That would create a truly strange way of understanding congressional power and the scope of judicial review. It is also ironic given Republican instence at the start of this Congress that all laws include explicit reference to the power source behind the law. Can courts now ignore (or supplement) what Congress says?
2) At Balkinization, Joey Fishkin (who predicted the result a couple of weeks ago) call the decision a "massive victory for liberalism" because ACA will now be implemented and soon will become part of the fabric of the social compact. People will become accustomed to having health care or its option or to paying the minimal tax knowing that health care and health insurance will be available when (not if) they need it.
I want to flag one of Fishkin's points: "The glib libertarian vision of young men (and it is always young men) free to go without health insurance (and freeload if they get sick, of course) will gradually lose its grip on the public consciousness." This is an interesting point, both in the rhetoric (which he accurately describes) and in the demographics. Are otherwise-healthy 25-year-old women more likely than similarly situated men to have and use health insurance because of gynecological needs? And how does (or did) that gender disparity play in the overall legal and scholarly debates?
Exactly What Sort of Executive Privilege -- Constitutional or Common-Law -- Is Attorney General Holder Asserting?
After reading and re-reading General Holder's June 19th letter, I cannot exactly tell. The answer to the question matters: Some varieties of privilege, I'd argue, should best be regarded as common-law privileges that Congress as a whole can waive with a statute, while others should be regarded as constitutional entitlements that protect the President absolutely, even against a properly enacted federal statute. General Holder seems to mix them up. This is not to say that General Holder does not have a good common-law privilege against a mere unicameral (or uni-committee) subpoena: I'd think that General Holder should win this fight against Darrell Issa on common law grounds. But it matters why he wins, and it is a little troubling that one cannot infer the precise reasons from his letter analyzing the privilege for the President.
In particular, I doubt that a mere Attorney General can claim any Article II privilege (as opposed to a common-law privilege) against an actual federal statute (not at issue here) demanding that the Attorney General or other executive official other than the President himself cough up documents pertaining to deliberations wholly within a cabinet department. Such a power, if recognized would carve a big hole in Congress' powers to enact comprehensive statutes creating frameworks for legislative oversight of the executive -- precisely the sort of statutes that have provided the sorts of controls praised by Jack Goldsmith in his recent book.
Representative Issa has demanded a lot of documents -- basically, anything pertaining to the executive branch's deliberations concerning the correction of inaccuracies in the Department of Justice's letter of February 4th, 2011. Some of these documents presumably pertain to deliberations wholly with the Department of Justice, some (perhaps) to deliberations between DOJ and the White House.
It would be worrisome for the President to claim some constitutional entitlement to bar Congress from demanding the former documents, not only because such a position seems wholly inconsistent with the relevant precedents (see, e.g., In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)) but also because it is hard to see, as a matter of text or common sense, why officials carrying out duties assigned by Congress can exercise statutorily conferred powers in ways barred by statutes. A privilege rooted in Article II would presumably give the Attorney General precisely such a power to resist not merely a subpoena of one House of Congress but also a statute enacted pursuant to Article I, section 7.
On the other hand, I have little doubt that General Holder has a common-law privilege to withhold documents pertaining to an ongoing internal investigation. This is a well-recognized common-law official privilege to protect "deliberative processes" within the executive branch. Such a privilege has been read into the FOIA as exemption 5, and it makes sense to read the same into 2 USC § 192 defining committee subpoena power, especially against what seems to me like Chairman Issa's blatant fishing expedition (carried out with a sweeping seine). If Congress wants to abrogate this common-law privilege by statute, then they can do: 2 U.S.C. section 192 certainly does not qualify.
General Holder's June 19th letter to the President, however, does not distinguish between common-law and constitutional privileges: It seems to assert both, without really distinguishing between them. "The documents at issue" and "documents of this kind" all are constitutionally privileged, according to Holder: To reenforce the point, Holder cites then-Acting AG Paul Clement's letter of July 27, 2007 letter regarding documents pertaining to internal White House deliberations about Bush's dismissal of nine U.S. Attorneys. But Clement's letter dealt only with internal White House deliberations, not every scrap of paper generated within DOJ: Is Holder really claiming that the Article II privilege covers the latter as well as the former?
The difficulty is that Holder does not describe the relevant documents with precision sufficient to know whether a plausible Article II argument could be made. Such a privilege might cover Holder's advice directly to the President or the President's immediate staff, but it surely does not cover Holder's discussion with his own staff. Holder notes that the "documents at issue were generated in the course of the deliberative process concerning the Department's responses to congressional and related media inquiries into Fast and Furious" (page 3). But such a description does not differentiate between "Article II-privileged" documents and "common law-privileged" documents: It surely includes both types of documents. Likewise, Holder argues that, because the Committee's inquiry pertains to "ongoing criminal investigations and prosecutions," they are protected by "executive privilege" )(page 4). True enough -- but which kind of privilege? The protection for deliberations pertaining to ongoing criminal investigations has always been understood as merely a common-law "deliberative process" privilege that Congress can waive.
I'd agree that such internal deliberations are protected by a privilege "quite similar to" attorney-client privilege (quoting again from Holder's letter) -- but, again, this privilege is surely merely a common-law protection that, if Congress so wishes, it can also waive: I doubt that governmental officials enjoy a due process right to keep their internal deliberations with "their" attorneys confidential, if they are being sued in their official capacity. If Congress were silly enough to demand that federal prosecutors or other subordinate executive officials plan their trial strategies according to the dictates of the Open Meetings Act, FACA, FOIA, or what have you, I assume that Congress could so. This would be so disastrous for executive effectiveness that no such waiver would ever make it past two houses of Congress -- but Congress has that power, right?
So I would have thought -- but Holder's letter muddies the issue. That the common-law protects Holder's deliberations from subpoenas like that issued by Darrell Issa or any other committee chair seems to me eminently reasonable. That the constitution itself does so seems to me a mite worrisome. And I cannot tell which claim General Holder is making. Yes, I understand the dynamic described by Terry Moe and William Howell under which Presidents over-reach in their assertions of legal entitlements. But, given the ruckus about President Obama's continuing his predecessor's aggressive assertions of executive power, it would have been nice for Holder to be a bit clearer about the scope of his claims.
The Two-Handed Lawyer - Reprise
I visited at the Tulane University Law School in 2006-07, the year after Hurricane Katrina. I recall Dean Larry Ponoroff introducing a program, oh, in about February 2007, noting that it was the first one not to be about Katrina. In that same spirit, let me be the one of the first to post something not about about a Supreme Court decision handed down yesterday.
It occurred to me as I was letting it go live that it was a demonstration of the thesis: there is something fundamentally different about perceiving something (like a problem) and analyzing it versus deciding and actually doing something. You can think all you want about this paragraph or that, this footnote or that, this abstract or that, but when you click the button, you've acted, and made a commitment, and are obliged to deal with the consequences (if any).
Anyway, it's a consideration of thinking versus doing, and why "thinking like a lawyer" and doing like a decider might be ships passing in the night. The revised abstract follows the break.
Here is the abstract:
Business clients sometimes refer derogatorily to their “two-handed” lawyers, implicitly distinguishing between the thinking that leads up to a decision and the decision itself. A “two-handed lawyer” is one who can analyze a problem on one hand and on the other hand, but tosses the actual decision back to the client. The observation invokes something fundamental about objective information, subjective judgment making, and the commitment to action. “Thinking like a lawyer” is a prototype of the rationally analytical mindset residing at one end of the mental continuum, and the entrepreneur’s impatience with allocating the risk of failure is a prototype of the commitment to action residing at the opposite end. If leaping is the metaphor for the business decision, then the systematic assimilation of data through rational analysis–the lawyer’s stock in trade – plays a crucial role. The leaper uses that analysis to assess distances and capabilities. But the decision to leap is something quite different. The leaper’s subjective experience of the “aha” moment of a business decision (or any decision, even when made by lawyers) defies scientific reduction. It is really only accessible through the subjective lived experience of the decision-maker. Deciding is more like action than thought.
In his iconic The Reflective Practitioner, the late Donald Schön criticized a mode of thinking he called Technical Rationality. Prototypical legal analysis is an exemplar of Schön’s Technical Rationality, applied methodically and systematically as a means of helping others to understand their circumstances and to optimize their positions in light of risk and uncertainty. Prototypical entrepreneurs and investors, however, are obliged to decide and to act. The mental process that leads to action is deeply subjective, personal, intuitive, and often ad hoc. The most effective business lawyers do not merely analyze and offer “two-handed” alternatives. Instead, they put themselves in the position of the decider and understand what it means to take the leap of a business decision. This article is a reflection on the reasons for lawyerly “two-handedness” and some preliminary thoughts on overcoming it. The affective toolkit for getting beyond rational analysis to action includes attributes such as epistemic humility, epistemic courage, self-awareness, and the willingness to accept responsibility for the consequences of one’s decisions. The practical toolkit will follow in another essay.
The 2011 Term and the Progressive Legal Agenda
With the ACA decision in the rearview mirror, I thought I'd take a quick stab at a more holistic reaction to the Supreme Court term that effectively came to a close yesterday. And at first blush, it certainly seems as if the October 2011 Term was a shockingly successful one for progressives--especially if one considers the bullets that were dodged. Maybe it's just that the bar is so low in light of the past few Terms, but here are a few highlights:
- In the headline-grabbing cases from this week, the Court came within one vote of invalidating the entire ACA; within two votes of leaving all of SB 1070 intact; and within one vote of allowing juvenile life without parole to persist. And yet, we wake up today with the ACA intact, SB 1070 largely gone, and juvenile life without parole a relic of a misbegotten past.
- In the same week, six Justices held that the First Amendment prevents the government from criminalizing harmless lying; and the Court dumped a case that many suspected would recognize new limits on Congress's power to empower private citizens to sue to enforce federal laws.
- Going back a few months, this was also the Term where the Court came within one vote of eviscerating Ex parte Young, only to punt; where 5-4 majorities produced surprisingly progressive decisions in three high-profile ineffective-assistance-of-counsel cases (to say nothing of the 7-2 outcome in Maples); and where the Court made a splashy, if limited, step into the Fourth Amendment consequences of 21st-century technology.
- And, lest we forget, the Court also found ways to duck huge constitutional questions in both FCC v. Fox and in the Texas redistricting case back in January, sidestepping the soon-to-be-squarely presented question about the continuing constitutionality of the preclearance regime created by section 5 of the Voting Rights Act.
I don't mean to oversell the point. I have to think that progressives certainly won't be happy with decisions like Knox v. SEIU; the double-jeopardy analysis in Blueford; Florence (the prison strip-search case); Coleman (the FMLA/Section 5 case); and a host of decisions (and decisions not to decide) that I'm sure I'm forgetting and/or underselling. And it also says everything about how low progressive expectations are that the Court ducking big decisions is, in many cases, tantamount to a progressive "victory." But even some of the "defeats" for progressives came on far narrower terms than they might have, such as the reasoning-less summary reversal in ATP v. Bullock (the Citizens United sequel)--which would almost certainly have looked much different on plenary review.
To be sure, there are storm clouds on the progressive legal horizon: the UT affirmative action case; Shelby County and the future of the VRA; the reargument in Kiobel; the Article III standing question in the constitutional challenge to the FISA Amendments Act; and a host of other cases in the food chain in which the Court's conservative majority is likely to assert itself at the expense of progressives. But that's next year. For now, I imagine most progressives will look back on the 2011 Term with a massive sigh of relief about what could've been, but wasn't.
Thursday, June 28, 2012
Emboldened Democrats Move to Pass "Broccoli Tax"
In the wake of their victory in NFIB v. Sebelius, the Obama Administration and its allies in Congress are looking to build upon health care reform by encouraging healthier eating. In a press conference held after the Supreme Court's decision, President Obama endorsed legislation to mandate the purchase of vegetables, particularly broccoli, by all Americans. The bill would require the purchase at least three pounds of broccoli each week, as well as one pound of broccoli for each dependent. (Parents would have to buy broccoli for their children up through the age of 26.) Those who do not buy sufficient broccoli will have to pay a fee for the equivalent amount to the federal government.
In promoting the new legislation, President Obama also unveiled a plan for "food exchanges" where Americans could buy their vegetables from private retailers on state-sponsored websites. "These health initiatives, when combined with exisiting programs like ChooseMyPlate and Let's Move, will not only insure a healthy America, but they will also reduce the deficit by bringing down health care costs." The OMB estimated that the broccoli mandate will save the U.S. $320 billion over the next decade.
The president refuted Republican claims that new taxes were being imposed. "It's not really a tax," said the President. "For us to say that you’ve got to take a responsibility to eat healthily is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for your diet of Red Bull and Cheetos."
Senate Democrats, however, acknowledged that the mandate could act as a tax. "I can't imagine anyone would not want to buy broccoli -- it's delicious!" said Senator Schumer. "But for Supreme Court purposes, the fee for not buying broccoli is a tax. It's definitely not a penalty." The Senate version of the bill would require the fee to be paid in pennies at the IRS office in Anchorage, Alaska. Schumer called such a process "a relatively normal means of taxation."
Presumptive Republican nominee Mitt Romney vowed to repeal any effort to mandate the purchase of healthy vegetables such as broccoli. Reporters questioned him about his Massachusetts brussels sprouts program that was enacted during his term as governor, but Romney claimed that the two were quite different. "States are free to propose vegetable-eating initiatives," Romney stated. "But for the federal government to do this violates our fundamental maxims of liberty. Will kale be next? Nobody likes kale."
The ACA and the Marbury Meme: Two Reactions
In light of the e-forrests being felled over today's Supreme Court decision re: the Affordable Care Act, I'm loathe to say much of anything, both because (1) life goes on; and (2) we're reaching that point in the proceedings where everything has been said, it's just that not everyone has said it.
Nevertheless, I wanted to interject two brief rejoinders to one of the memes lurking in the (ever-proliferating) analyses of today's decision--i.e., that Chief Justice Roberts' majority opinion was a political masterstroke (a la Marbury v. Madison) insofar as it allowed him to save the Court while "gutting" the Commerce Clause; or, on different terms, that "supporters of limited government" lost the battle, but may have won / be winning the war. Examples of the former include Larry Solum @ LTB and Tom Scocca @ Slate; examples of the latter include Ilya Somin @ SCOTUSblog and (I'm sure) lots of others I haven't read. Whether this narrative is coming from folks trying to put a positive spin on what to them is a disappointing result or otherwise, I suspect it's going to be one of the common themes in the more studied post-morterms, and at least initially, I'm not convinced:
1. NFIB Isn't Another Marbury. Leaving aside the fact that the case name just doesn't roll off the tongue the same way, I have a hard time seeing much in the Chief's opinion that resembles Marbury at anything other than a hopelessly abstract and superficial level. For starters, Chief Justice Marshall's masterstroke in Marbury was expanding the Court's literal power in a manner that didn't require him to rule against President Jefferson--to the contrary, striking down section 13 of the Judiciary Act of 1789 deprived him of his authority to rule for the side with which his politics were sympathetic. The Federalists didn't win in the long-term; the Court did. Nothing in NFIB v. Sebelius, in contrast, expands the Court's jurisdiction beyond where it stood yesterday, or its unquestioned power to invalidate state and federal laws that are inconsistent with the Constitution (see, e.g., the joint dissent). Although the Chief's opinion surely has institutional value (insofar as, in the eyes of many, it maintained the Court's legitimacy), I dare say that nothing is true about the Court as an institution tomorrow that wasn't true yesterday. And whether NFIB ends up as more of a boon to Democrats or Republicans, it's hard to see how the Court wins in the long-term from today's decision in any way other than because it didn't lose--avoiding the enmity and bitterness of a jaded and disappointed progressive community.
Some might respond that the analogy to Marbury isn't about institutional power, but rather doctrinal misdirection: Hiding important substantive law behind a decision that seems to come out the other way, so that the Court achieves substantive results in the long-term that institutional concerns prevented it from claiming more immediately. Thus, Scocca, suggests, "Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory." Even if this were a fair reading of Marbury (does anyone besides Federal Courts nerds actually care in the long term about Congress's power over the Supreme Court's original jurisdiction), it assumes facts not in evidence about NFIB, specifically that the Chief's Commerce Clause and Spending Clause analyses will have significant weight going forward. That brings me to...
2. It's Spending, Not Commerce, That's Going To Matter. The assumption behind this entire narrative is that Chief Justice Roberts' majority opinion materially advances the ball with regard to constitutional limits on the Commerce and Clause, and is therefore a strategic, if not tactical, victory for those opposed to expansive views of the federal government's regulatory powers. Although I think there's a lot to this claim with respect to the Spending Clause, I'm far less convinced re: commerce. After all, (1) there's a non-frivolous argument that the Commerce Clause analysis is dicta (I just don't buy the necessary-to-the-result analysis); and (2) even if it is a holding, I can't think of a single other statute (or widely discussed proposal) that is vulnerable to the narrowly circumscribed Commerce Clause problems the Chief identifies in his opinion. Corey Yung is unquestionably right that there are lots of quiet penalties for inactivity in federal law. But few that look just like this--that was the whole point, remember? So might today's decision affect how Congress legislates going forward? Sure. The next time Congress wants to take an unprecedented step to require Americans to participate in a market in which there is a plausible claim they would otherwise stay out of, it'll matter whether the Chief's analysis was dicta or a holding. I, for one, will not be holding my breath in anticipation.
As for the Spending Clause, I really do think that, given what the Court (including Justices Breyer and Kagan) did here, today's result is not as sweeping a win for the Obama Administration as many had hoped for / reported. Indeed, I basically agree entirely with what Sam Bagenstos had to say re: how this might matter going forward. Without question, the substantive constraints on Spending Clause statutes will affect future legislation and litigation (albeit probably very little, ironically, with regard to the Medicaid expansion itself, thanks to both (1) the five-Justice Booker-remedy move; and (2) the terms of the ACA deal, which will likely prove too good to pass up even as a pure bribe). And even if the effects are overstated, it's not every day that the Supreme Court recognizes a limit on a particular source of Congress's powers for the first time in 75 years. But, and again unlike Marbury, there was no misdirection here. This was just a different holding on an analytically different issue that just happened to arise in the same case. Had the issues been resolved in separate opinions, or wholly separate cases, we wouldn't even think of the Marbury analogy. And as big a deal as the Spending Clause holding is, as mixed a bag as it makes what happened today, and as important as it may be in the future, none of those does a Marbury make. Sometimes a pig is just a pig.
Heart of Atlanta, Roberts style
Chief Justice Roberts wrote only for himself on the Commerce Clause and Necessary and Proper issues, explaining why the law was invalid on those grounds before turning to taxing issue and ultimately upholding the mandate. The key to Roberts's analysis is that the mandate "reads more naturally as a command to buy insurance than as a tax." It therefore had to first be analyzed (and rejected) as a Commerce enactment. It only could be analyzed as a tax through a saving construction, which only is imposed if the law would otherwise be unconstitutional. Only after that saving construction, the Court then could perform the Taxing Clause analysis.
But because constitutional invalidity must come before the saving construction which must come before the Taxing analysis, making the first step necessary to the judgment. And thus the confusion over whether this is dicta and whether there is a five-vote majority for the Commerce analysis.
In Heart of Atlanta Motel v. United States, SCOTUS upheld the public accommodations provisions in Title II of the Civil Rights Act of 1964. Congress had pointed to and discussed two power sources during the legislative debates--Commerce and § 5 of the Fourteenth Amendment. But the latter would have required reconsideration of The Civil Rights Cases, which held that Congress could not regulate non-state conduct through § 5. The Court upheld Title II on Commerce grounds, without discussing (or feeling it necessary to discuss) § 5.This was despite the following: (379 U.S. at 257)
Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.
But under the approach Chief Justice Roberts took today, the Heart of Atlanta analysis arguably would have had to go as follows (with apologies to NFIB, slip op. at 44):
[Title II is concerned with a moral and social wrong.] The statute reads more naturally as [a way to ensure the Equal Protection of Laws] than as a [regulation of commerce among the several states] and I would uphold it as a way to ensure Equal Protection if the Constitutional allowed it. It is only because [§ 5 of the Fourteenth Amendment] does not authorize such a [law] that it is necessary to reach the [Commerce] power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that [Title II] can be interpreted as a regulation of [commerce]. Without deciding the [§ 5] question, I would find no basis to adopt such a saving construction.
Now, perhaps that would not have been a bad thing, as it would have forced a § 5 analysis and we might have gotten a very different analysis and conclusion than we got 25 years later in United States v. Morrison.
Still, Congress often legislates pursuant to multiple power sources or pursuant to a power source and in light of an outside limitation on power. Are there other instances of the Court insisting that a law must be "read more naturally" as derived from one power than another, such that that power had to be analyzed first and becomes essential to the judgment, even if the ultimate conclusion is to uphold the statute on that other ground? It seems to me that the ordinary (and better) process is to read the statute and accept Congress' asserted power source(s) and evaluate the law under all that may apply. And it ordinarily is (and should be) enough to find one power source on which to uphold it; its invalidity under any other source should not be necessary or relevant to the judgment.
A pro-federalism spin on NFIB's reading of the taxing power
As I just noted, I regard the Court's recent ACA decision as a major defeat for constitutional federalism, because it revives attention to Congress' long-dormant power to impose taxes for regulatory purposes. That power to impose regulatory taxes lapsed into desuetude after the Court expanded the Congress' commerce power in the wake of the New Deal, but, once upon a time, it was the basis for major federal "morality" regulations (against gambling and drugs) during the 1920s through the 1940s. Reviving such a massive power while placing a practically irrelevant limit on the commerce power is not, as Randy Barnett claims, a "weird victory for federalism": It is, to the contrary, a weird victory for nationalism in which, having gagged on the gnat of the commerce power, the Court blithely swallows the camel of regulatory taxes. The taxing power, after all, is not even subject to the minimal limits of Lopez and Morrison, which curtail "non-economic" federal laws directed at (for instance) marriage, education, family law, and other "Culture War" matters. A broad taxing power is, in short, so much worse than a commerce power to impose mandates on private persons that granting the first to gain limits on the second is truly a pyrrhic victory for federalism.
Chief Justice Roberts dropped a few hints in the majority opinion about how the taxing power could be limited in future cases, but some of these limits seem formalistic and silly. The fact that this "exaction" (as Roberts diplomatically calls the mandate) is collected by the IRS rather than, say, HHS seems like the sort of formalism that has given federalism doctrine a bad name.
But Roberts does provides federalism fans with a few small and more substantial consolation prizes. He emphasizes, for instance, that the ACA bars any exaction higher than the average insurance premium that an individual would otherwise have to pay to a qualified insurer (page 35). Footnote 8 at page 36 of the slip opinion also indicates that some such ceiling might be a necessary and not merely sufficient condition for a regulatory tax to be constitutional. Finally, Roberts offers a broad hint that, if Congress were to impose a tax burden so large that the effects were mostly excess burden rather than generation of revenue, then such a tax would not count as a "tax" under Article I, because it would be too "punitive" (pages 42-43 of the slip opinion).
This sort of dicta is encouraging, and, if one were, like myself, both in favor of stronger protections for state power and also inclined to look for silver linings, one might plausibly "spin" this language into a sort of "nexus" text for regulatory taxes: viz., The tax burden incident on some sort of action or inaction must be rationally proportional to the costs of such conduct, or else the tax will be treated as a de facto penalty enforcing a regulation and, therefore, a forbidden end run around the limits of Article I. So read, the language is actually an improvement on the taxing power as described in Kahriger.
Or, at least, that's what this pro-federalism guy says to himself to console himself in the wake of Randy's alleged "victory" for federalism.
Stolen Valor Act: Dumb but not sufficiently illiberal?
Most of y'all are probably browsing the 190 page monster of the Healthcare Cases, but I'm here to interrupt with some news about Alvarez, the stolen valor case. It's both a bit snoozy and breezy -- except for the dissent, where Alito blithely smacks down an academic amicus brief from UCLA's Jonathan Varet. Aside from that brief episode of fireworks, and the somewhat surprising claim made by Alito that we have witnessed an "epidemic" of people falsely claiming military honors, the various opinions are, at first glance, well, bland. The majority, by Kennedy, is not especially persuasive at distinguishing Section 1001 federal crimes from what's at issue here. Neither statute requires any kind of harm, real or threatened. So if you want to throw out one, it seems you have to throw out the other. That seems kind of drastic; the government should probably be able to save itself the trouble of dishonest interlocutors. I'm not saying I would pass both those criminal laws, as drafted, myself. To my mind, the stolen valor statute is a dumb use of the criminal sanction, and legislators should have sought less drastic measures to advance their goals besides plopping more drivel in the Title 18 bucket. But even though it's dumb, it's permissibly dumb.
I don't find myself moved by the slippery slope problems the challengers to the statute make with respect to the kind of breathing room that true speech needs in terms of having some false speech protected. The fact that we all err on the road to truth in the market of ideas is largely irrelevant here because of the mens rea requirements. [Update: I should have thought more of the relevance of the satire issue, which I think is knowingly false speech that's still critical for long term health of democracy; I flag but ultimately disregard that as a useful but not on these facts applicable concern.] So, put aside the truthiness interest, and that leaves an autonomy interest to consider, presumably the sort that Varat was getting at in his amicus brief that Alito batted down. I get that. That interest seems worthwhile and important up to a point. But, as I tried to argue in Retributive Justice and the Demands of Democratic Citizenship, the autonomy interest with respect to criminal legislation has at least two dimensions: the negative one (the right to be let alone by the government) and the positive one (the right to engage in democratic self-government).
To my mind, this statute was not so illiberal that it doesn't deserve (as a moral matter) to be allowed on the books. I suppose such sheepish support probably puts me with the dissenting 3 (certainly not my favorite company: CT, AS, and SA). Not that anyone's asking but were I in a position to have upheld the statute, it would have been with much less rhetorical bombast. More references to Holmes and emphasis on the fragile asininity of democracy and less patriotism. But maybe I'm wrong. I'll need to think it over some more.
Commerce clause majority?
Ethan asks whether there is a binding holding on the Commerce Clause, combining the Chief with the four dissenters. A lot depends on whether the Chief's discussion is necessary and I am not sure I buy his explanation; he seems to be suggesting that they construed the statute to have it be a tax and then upheld it, but doing this first required consideration of the unconstrued text under the Commerce Clause. Mark Graber argued on a listserv that this is similar to Taney's move in Dred Scot, where he first held that there was no jurisdiction because Scot was not a citizen of the United States, then tried to fold the discussion of the Missouri Compromise into that jurisdictional discussion.
Going forward, this is calling to mind some debates over Congress' power to regulate private conduct under § 5 of the Fourteenth Amendment. In United States Guest in 1966, five justices held that a federal prosecution of private individuals for conspiracy to deprive persons of use of public accommodations could go forward, because there were sufficient allegations of public involvement in the conspiracy. Three justices from that majority--Clark, Black, and Fortas-- wrote a concurrence stating "There now can be no doubt that the specific language of § 5 empowers the Congress to enact laws punishing all conspiracies--with or without state action--that interfere with Fourteenth Amendment rights." Justice Brennan, joined by Chief Justice Warren and Justice Douglas, wrote a concurring opinion stating that the prosecution was valid because Congress has the power to reach all conspiracies that interfere with constitutional rights, with or without state action.
So advocates tried to use Guest to argue that there were six justices for a binding rule that Congress can regulate private action through § 5. But the Court rejected this in United States v. Morrison (the Violence Against Women Act case), stating that "three reasoned justices combining with three unreasoned justices is "simply not the way reasoned constitutional adjudication proceeds." Now, I imagine (I have to read the decision) that Roberts did engage in serious analysis on the Commerce issue, so this is not exactly like Guest. Still, the Court typically does not count noses outside of opinions to establish majorities.
In any event, as Tom Goldstein points out, the Chief relied on the activity/inactivity distinction, which likely will not affect many statutes going forward.
A Guess on the CNN/FoxNews Snafu
Both CNN and FoxNews reported initially (as did Diane Rehm) that the mandate had been struck down. Was that based on reading the Roberts opinion, or was it based on The Chief Justice's' way of announcing the opinion in court? Did he start with the Commerce Clause, and then transition with a big "But . . . "? Just curious if anyone was in attendance and could speak to how the moment felt.
More thoughts of others
Rick Hasen here. Also, SCOTUSBlog is hosting a day-long blog symposium; it is still in live-blog mode, but they are providing links.
Solum on the ACA and our constitutional gestalt
And yes, even though I predicted the mandate would be upheld yesterday, I consider myself a loser (at least) because AMK didn't join the majority. Shame shame.
Charles Fried and Randy Barnett Debate on the Subject of:
Contract theory. Fooled ya.
On March 24, 2011, Charles Fried, yes, the same Harvard Law School professor who was lead counsel on the amicus brief supporting the constitutionality of the Affordable Care Act, and Randy Barnett, yes, the same Georgetown Law Center professor who was perhaps the leading academic spokesman for the challenge, concluded their ACA debate over at that other school across the Charles, hopped on the Red Line (figuratively speaking), and came down to Suffolk University Law School.
The next day, just a few steps from the Granary Burying Ground and the Park Street T station, they joined a host of notable scholars we gathered to reflect on the thirtieth anniversary of the publication of Professor Fried's Contract as Promise. If you find that ACA and constitutional stuff all well and good, but really get moving in life when you think about contract theory, you can now access the papers published in the Suffolk Law Review.
There you can consider contract as promise (Fried), contract as consent (Barnett), or any of the other perspectives offered by Professors Barbara Fried (Stanford), Jean Braucher (Arizona), Brian Bix (Minnesota), Richard Craswell (Stanford), Avery Katz (Columbia), Daniel Markovits and Alan Schwartz (Yale), George Triantis (Harvard, now Stanford), Juliet Kostritsky (Case Western), Curtis Bridgeman (Florida State) & John C.P. Goldberg (Harvard), Henry Smith (Harvard), Roy Kreitner (Tel Aviv), and Nathan Oman (William & Mary).
There's also my introduction, which both summarizes the proceedings and puts my particular spin on the whole thing.
We now return you to your irregularly scheduled programming.
The ACA cases, conditional spending, and coercion
I'm not (nearly) as far along as the other Rick is in figuring out what I think of today's ACA cases. I'm glad my friend and teacher Akhil Amar will be okay, and -- unlike Ethan -- I'm inclined to think the Chief did what he did because he thinks, all things considered, it's a pretty-much-right way to go, consistent with his Lopez-esque discussion, early in the opinion, about enumerated powers, federalism, and judicial review. I also still have the view that the efforts, during the lead-up to today's decisions, to anticipatorily establish that a ruling against the Act would be illegitimate, etc., were lame.
Once upon a time, I had a strong interest, and maybe even something approaching expertise, in the conditional spending / regulation-by-contract / South Dakota v. Dole business, and its place in the so-called "New Federalism" (Read this, please). And so, I'm very interested in the question whether language like this, in the Chief's opinion, will have any Congress-disciplining or judge-emboldening effects: "Respecting this limitation [on conditional spending] is critical to ensuringthat Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system." And, later, he connects the Dole / conditional-spending doctrine (if that's what it is) with the Printz and New York "commandeering" themes.
The Financial Impact of the Healthcare Decision...
...was, as I predicted in my post last night, immediate. Here's an email that appeared in my inbox not long ago:
BREAKING NEWS: The Supreme Court just voted to uphold President Obama’s Health Care law.
Republicans threw everything they had at us, and they lost. With you standing with us, we can carry this momentum into November and win a Democratic majority to keep making progress.
Please donate $3 or whatever you can right now: [link to DCCC donation site deleted]
Rep. Steve Israel
(As you can tell from the name, I am not actually a DCCC supporter. Not that there's anything wrong with that!)
Meanwhile, a Twitter feed from the RNCC today reads: "It's up to you now. Got $3 to make sure we defeat the Dems who passed #ObamaCare without even reading it?" And I assume that every private group that lined up on either side of the battle will be reaching out its hand today, using some variant on the "we narrowly avoided an apocalypse, but tomorrow might be different -- give now!"/"we narrowly suffered an apocalypse, but tomorrow might be different -- give now!" approach. All of them apparently asking for just three dollars. So we beat on. . .
Meanwhile, here's some musical entertainment for you.
The Healthcare Decision and the Revival of the Taxing Power: The Costs and Benefits of Formalism in Federalism
There are two species of "federalism decisions" that emanate from the Court nowadays -- formalistic deference and formalistic lack of deference. By "formalistic," I follow Don Regan's definition (in his classic 1995 article on Lopez): “The essence of formalism in legal interpretation is paying no attention to the purpose embodied in the text one is interpreting." Whether the court is deferential to Congress or not, the Court says nothing much about what the Article I doctrine of enumerated powers is supposed to accomplish. Instead, the Court focuses on some factor that is supposed to define a judicially manageable standard -- some gun crossing state lines, some "substantial effect" on commerce, some more or less phoney jurisdictional element, that will make the Court's life easy in terms of producing five votes or supervising lower courts. Rarely, however, does the Court actually ask the fundamental question: "Why should the feds be regulating this issue as opposed to the states? In what sense are the states' incentives inadequate to the task that the feds have undertaken?"
Today, the SCOTUS has continued this tradition by upholding the ACA individual mandate as a legitimate tax. Putting aside the result, the basis for the argument shows that the Court refuses to get serious about explaining why Congress should regulate some topics but not others.
I am no friend of the Commerce Clause argument against the individual mandate's constitutionality: The idea that Congress cannot compel commercial acts because of some ersatz gerry-rigged distinction between mandating and forbidding acts strikes me as just one more formalistic limit unmoored from any consideration of the purposes of enumerating powers. The analogy to Printz was always forced. The lower courts that struck down the mandate always seemed to be confusing a Due Process protection for individual liberty with a Federalism objection based on the right level of government to impose a limit on private liberty. It seemed to me that a federal law regulating the provision of a properly national good like health insurance -- a good that is redistributive in character and, therefore, cannot be properly delivered by subnational governments -- ought to be upheld by the Court.
But, in relying on the Taxing power, the Court has failed to offer a coherent purpose-driven reason for the result. It cannot be the case that the feds always can "encourage" people to undertake actions by taxing their inaction: Such a taxing power would render nonsense the basic idea that the enumeration presupposes something not enumerated.
So... what is the limit on the taxing power? Since Kahriger, the usual doctrine has been that the tax must generate revenue. But this test is patently unsatisfactory, because all taxes generate revenue if they are set just below the level at which they would completely prohibit a taxed activity. A tax on same-sex marriages of, say, $1,000 per marriage would presumably generate some revenue -- but would it be a constitutional exercise of Congress' enumerated powers? If so, then the idea of the enumeration is exploded, except as a formalistic obeisance to the text of Article I. Put another way, no sane framer would bother to enumerate powers if the only limit on the federal government's taxing power is that the tax generate some revenue and that people who wish to avoid the tax can do so through either action or inaction.
So far as I can tell from an initial reading of the 5-vote majority, the Court offers no functional reason whatsoever for its analysis of the taxing power. Indeed, the Court insults our intelligence by describing the conventional analysis of taxation under its prior precedents as somehow "a functional approach" (page 35). Of course, there is nothing "functional" about its definition of the taxing power, if the only relevant factors are the power of a taxed individual to avoid action or inaction that is taxed. If the test is, as Chief Roberts describes it, paying the tax "may often be a reasonable financial decision," then Congress will have fairly unlimited power to regulate any activity simply by imposing an exaction just short of what it would take to eliminate the activity altogether. If the only other limit is that Congress (or the IRS) cannot "penalize" persons who choose to pay the tax, by stigmatizing them as "outlaws" (page 38), then such a limit is worse than formalistic: It is not even consistent with the precedent (Doremus) upholding the Harrison Narcotics tax.
How is such a taxing power consistent with any sensible notion of enumerating powers? Why would any sane framer, whether Hamilton or Luther Martin, Federalist or Anti-Federalist, ever agree to such an arrangement? The Court does not say.
Perhaps it is just too much to ask that the Court follow Chief Justice Marshall's advice that the Constitution’s “great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” Maybe, when the political heat is on and one needs to round up five votes, it is impossible to mark the "great objects" of the taxing power.
But I tend to think that more candor on what exactly the enumeration is supposed to accomplish would actually increase respect for the Court. There are costs to formalism that can outweigh its apparent administrative benefits -- for instance, the frustrating sense that one's constitutional system is a pointless machine of arbitrary rules. I suspect that today's decision will exacerbate those costs.
Moreover, this decision has confirmed my worst fears about the anti-mandate: using individual rights rhetoric to constrain the commerce power has led the Court to unleash a much more dangerous power that had lain dormant for more than a half-century (since Kahriger). Having bought the limit on the commerce clause, the Court has stripped this limit of any functional meaningfulness by re-affirming an essentially unlimited taxing power.
That's what happens when one ignores constitutional purpose -- one gets senseless federalism and senseless nationalism.
Quick ACA Reactions
1. I love that the mandate is not a tax for Anti-Injunction Act purposes but it is still a valid exercise of the Taxing Power.
2. I am genuinely surprised that Kennedy voted as he did. For all his talk of liberty and this mandate being unprecedented, he usually comes around.
3. I don't actually think this is a winner for the Rule of Law. I tend to think Roberts did what he did for pragmatic reasons associated with the Court's legitimacy. I'll take it. But Akhil should still start therapy.
4. I'm confused about whether the Commerce Clause's insufficiency is actually a binding holding. Even if it has 5 votes, it isn't necessary to the result.
What Does the ACA Ruling Mean For You?
If you are a constitutional law scholar and were hoping for Akhil Amar's job after his nervous breakdown, sorry. Make other plans.
The Chief joins Ginsburg, Breyer, Sotomayor, and Kagan.
Opinion here (warning: it's 193 pages)
Stolen Valor Act unconstitutional
Like Paul, I have been waiting for Alvarez as much as anything this term. The Court affirmed the Ninth Circuit and held the statute unconstitutional. Justice Kennedy wrote for a plurality (himself, the Chief, Giinsburg, Sotomayor), with Breyer and Kagan concurring in the judgment to suggest that the statute is unconstitutional as is, but could be redrafted. Alito (no suprise), Scalia, and Thomas dissent.
This explains why the case took so long. I am particularly intrigued by Kagan's vote; I had seen her staking out a highly speech-protective position, so I am curious that she did not go the whole way on this one. And the Chief is turning out to be an (unexpectedly?) strong proponent of a libertarian First Amendment.
Waiting for a judicial announcement
When was the last time that the entire country was waiting for a particular judicial decision that we all knew was coming on a specific day and at a specific time? If you think about the other universally anticipated SCOTUS decisions of recent years, we did not have such prior notice of when the decision would be coming down.
Strangely enough, I keep coming back to the O.J. Simpson verdict. If you remember, the report came out that there was a verdict in the afternoon (I think it was a Tuesday) and Judge Ito announced that the verdict would be announced the following morning. So everyone knew exactly when to tune in and exactly what was coming.
Riley on Indians and Guns
My friend and former colleague Angela Riley has an interesting-looking article with the title "Indians and Guns" in the current issue of the Georgetown Law Journal. Here's the abstract:
The Supreme Court’s recent Second Amendment opinions establish a bulwark of individual gun rights against the state. District of Columbia v. Heller confirmed that the Second Amendment guarantees an individual the right to bear arms for self-defense, and the Court applied this analysis to the states via incorporation theory two years later in McDonald v. City of Chicago. As a result of these cases, it is often assumed that individual gun rights now extend across the United States. But this conclusion fails to take account of a critical exception: Indian tribal nations remain the only governments within the United States that can restrict or fully prohibit the right to keep and bear arms, ignoring the Second Amendment altogether. Indian tribes were never formally brought within the U.S. Constitution; accordingly, the Second Amendment does not bind them. In 1968, Congress extended select, tailored provisions of the Bill of Rights to tribal governments through the Indian Civil Rights Act but included no Second Amendment corollary. As a result, there are over 67 million acres of Indian trust land in the United States, comprising conspicuous islands within which individuals’ gun rights are not constitutionally protected as against tribal governments. With Indian nations thus unconstrained—bearing in mind that gun rights and regulations are oftentimes set by tribal law—pressing questions regarding gun ownership and control arise for those living under tribal authority.
Looks like a good subject for a Jotwell piece, if anyone's interested!
This is also a nice place for me to sneak in a personal comment. Angela and I both taught at Southwestern Law School before moving on to greener (in her case) and hotter (in my case) pastures. Its dean, Bryant Garth, recently announced he was stepping down. I was hesitant to write a full post on this, because I very much appreciate the angry commentary that has recently been volleyed against "lower-tier" schools. (I will point out that, whether it still serves its ancient mission or not, Southwestern has been in the "opportunity school" business for a century now; it's not simply some profit-seeking johnny-come-lately.) Having taught there, I do worry about those issues and about the welfare of students graduating from such schools. But I also want to express my personal gratitude to Dean Garth for the many excellent things he did at Southwestern; from the narrow perspective of a faculty member, he was a terrific colleague and is still an intellectual inspiration. I wish him well and thank him for everything he did for me.
Don't Forget Alvarez!
Although all eyes on the Court will be focused on First American Financial Corp. v. Edwards, it's worth remembering that a potentially important First Amendment case, United States v. Alvarez, will also be decided today. That's the Stolen Valor Act case, dealing with a federal statute that criminalized a knowingly false statement that one has won military honors. It was subsequently amended, I believe, to require the falsehood to involve obtaining something of value, but that was not part of the original statute. I've written some about this case in a larger context here.
The case is important because it revisits the classic statement in Gertz v. Robert Welch Inc. that "there is no constitutional value in false statements of fact." The strongest aspect of the government's case is that the statute, although it may still not have been narrow enough without a requirement of some material gain, focused narrowly on a specific knowing false statement of fact -- not an inadvertent statement and not a statement of opinion. Counsel for Alvarez was pressed hard in oral argument to answer what the First Amendment value is in what Chief Justice Roberts called "a lie, a pure lie."
On the other hand, the Court's recent decisions in Stevens and Brown suggest that the Court is leery of engaging in case-by-case balancing to determine whether a particular speech act is of low or no value. Instead, they have asked for proof that some category of speech -- crush videos, violent videogames, etc. -- is of low value not just as a logical matter, but as a matter of longstanding historical practice. So the outcome in this case will depend in part on how loyally the Court hews to those recent precedents. It will also, it seems to me, depend on the level of generality at which it treats the conduct criminalized by the Stolen Valor Act. If the act is treated narrowly, it is less likely to give rise to slippery slope concerns but also harder to identify as a speech act that has long been treated as falling into the category of low- or no-value speech. if it is treated more broadly as a "pure lie," it may be easier to argue that there is a long practice of regulating such lies. On the other hand, at oral argument the Solicitor General was pressed on the question whether, if the principle is read that broadly, it would not allow a host of other laws criminalizing false statements in other contexts. And the Court recognized that in most of the cases in which it had treated particular false statements as regulable, they were closely associated with longstanding and well-delineated harms.
In reading about this case, I have been interested in the number of scholars who share the idea that false statements of fact as such have no constitutional value. It represents, in part, a move away from Mill and toward other theories of the First Amendment. It suggests that the old idea that even falsehoods have value by serving as a whetstone for the truth is out of vogue. Those arguments have changed my outlook on this case somewhat. But I still hope that the statute is overturned. (See my article above for a full discussion.) My concern is both that there is, or may be, some constitutional value in false statements of fact, and that even if there isn't, allowing the government (state or federal) to begin narrowly identifying "worthless" false statements of fact as subject to criminalization would open the gates too wide to government regulation of speech. But I appreciate, more than I initially did, the arguments against this position. We'll know soon enough which way the Court goes. I'm not sure whether I expect it to address squarely the statement in Gertz, or whether most of the decision will be about applying Stevens and Brown, but it will be interesting either way.
I gather that besides First American Financial and Alvarez, some other decisions will be handed down today.
Why Salazar v. Ramah Navajo Chapter is more than simply a federal contracting case
Last week, the Supreme Court decided two cases involving Indian tribes: Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak and Salazar v. Ramah Navajo Chapter.
Patchak, which has generated more discussion and analysis, was an APA challenge by a neighboring (non-Indian) landowner to the Secretary of the Interior’s decision to take land into trust for a tribe’s casino. The U.S. and the tribe argued that the landowner lacked prudential standing to challenge the decision and that the APA’s general waiver of sovereign immunity did not apply because of a provision in the Quiet Title Act prohibiting challenges to Indian land title. The Court rejected both arguments, effectively opening the door for anyone to challenge land-into-trust decisions. See here and here for some good discussions of the Patchak decision and its potential ramifications.
In Ramah, the tribe (actually several tribes - Ramah Navajo represented a class and Oglala Sioux and Zuni Pueblo intervened) sued the federal government directly over the government’s failure to pay certain costs associated with the tribe’s federal contract, a contract authorized by the Indian Self-Determination and Education Assistance Act.That law, passed in 1975, authorizes Indian tribes to enter into contracts with the Department of the Interior or the Indian Health Service to provide governmental services that the federal government would otherwise have provided. As long as a tribe can demonstrate basic institutional capacity to administer the program, the agencies are obligated to turn responsibility over to the tribe and to provide the tribe with at least the amount of funding that it would have used to fund the program directly, plus administrative and overhead costs (called contract support costs).
The U.S. argued that it was not required to pay all the costs due under the tribe’s contract because Congress had set an express limit on the amount of money that could be used by the agency to pay contract support costs, and that amount was not enough to cover the costs due to all contracting tribes. The Court sided with the tribe in Ramah, holding that as long as the agency’s appropriation for contract support costs has enough money to cover the costs due under a particular contract, it is legally obligated to pay those costs, even if it doesn’t have enough money to pay all tribal contractors. The agency arguably faced conflicting legal obligations. As a matter of appropriations law, it was prohibited from paying the full amount of contract support costs due to tribes. Moreover, a law called the Anti-Deficiency Act makes it a crime for federal officials to spend money that an agency does not have. But as a matter of contract law, the agency was liable to each contractor for its full costs. The Court resolved this conflict by permitting tribes to sue the agencies to recover on unpaid costs, with the government paying the costs from a separate fund.
As other blogs have noted, the U.S. was on the losing side in both cases. In Patchak, the U.S. sided with the tribes, so the loss is not surprising. Tribal interest have lost before the Supreme Court about 80% of the time since 1987 (David Getches and Alex Skibine have each analyzed success rates) and, as Matthew Fletcher has noted, the U.S. tends to lose when it sides with tribes. The bigger surprise is the tribal win in Ramah, one with a majority composed of an unlikely alliance of Justices.
Ramah follows Cherokee Nation v. Leavitt, a 2005 case in which the tribe won a unanimous decision in a similar case about the government’s obligation to pay contract support costs. In the past decade, tribal interests have won before the Supreme Court only four times, and two of these wins (the only wins since 2004 and the only win in the Roberts Court) were contract support cost cases. Why?
One compelling argument is that, in the modern era, tribes fare best when the issues are not Indian law issues at all. In Ramah and Cherokee Nation, the Court viewed the tribes as federal contractors. The tribal position in each case was supported by other (non-tribal) federal contractors (the U.S. Chamber of Commerce and the National Defense Industrial Association filed an amicus brief in Ramah, and they were joined by Aerospace Industries Association in a brief supporting the tribes in Cherokee Nation). The problem (failure to pay contract support costs) affects non-tribal contractors as well. So Ramah might be better described as a federal contracting case in which the contractors just happen to be Indian tribes – not an Indian law case at all.
But it’s a mistake, particularly for teachers of Indian law, to view Ramah and Cherokee Nation as cases that are not about Indian law. They arise under the Indian Self-Determination and Education Assistance Act, which is the central legislative expression of the U.S. government’s modern day self-determination policy, a policy initiated by President Nixon and affirmed by every President since. That policy, which favors tribal control over Indian issues and local governance of reservation communities, was a direct response to prior federal policies favoring pervasive (and remote) federal control over almost every aspect of reservation life, from health care to policing to schools to natural resource management. The rationale for such pervasive federal control was twofold: it was based in part on the idea that the federal government has a trust and treaty-based responsibility to provide many of these services to Indian people, and in part on the widespread belief throughout much of U.S. history that Indians were incapable of providing these services for themselves.
The ISDA affirms the first idea (federal responsibility) and soundly rejects the second (Indian incompetence). Broadly, its purpose is to facilitate tribes’ ability to control the programs and issues that affect their communities. It does so through the mechanism of government contracts. Specifically, the Act allows tribes to enter into contracts with the federal government to run any program that was previously run directly by the Bureau of Indian Affairs or the Indian Health Service. Many tribes have seen tremendous improvements in the quality and responsiveness of programs, such as police, jails, and hospitals, since taking them over under the ISDA.
But make no mistake – federal Indian programs remain devastatingly under-funded, and this under-funding is passed through to tribes via the ISDA. This is precisely why contract support costs matter so much to tribes. When the Act was first passed, tribes received only the amount the agency would have directly allocated to their program, but a lot of the program money was eaten up by indirect administrative costs, for which the agencies generally did not reimburse tribes. For example, while the Indian Health Service would have relied on its own administrative funding to cover overhead and administrative costs of running a hospital on Tribe X’s reservation (e.g., liability insurance and employee fringe benefits), Tribe X would only receive the amount directly allocated to hospital programming, with the agency retaining its full administrative funding. Tribe X might be forced to cover these overhead costs by cutting hospital services or laying off staff.
So Congress amended the ISDA to require the agencies to pay contract support costs. Agencies use a standard formula to calculate these costs, and the amounts are included in each tribe’s contracts and annual funding agreements. The agencies are obligated to pay these costs, subject to the availability of appropriations.
But for years the agencies have not paid the costs due to tribes under their contracts, racking up a pretty big debt to tribes. The problem is that, as more tribes opt to enter into contracts and the agencies are obligated under the statute to agree to those contracts, the amount of money appropriated for contract support costs has not kept pace with the total need (remember, these are chronically under-funded agencies).
The government first argued that no more money was legally available to pay the tribes because each agency’s entire lump sum appropriation had been allocated to other costs, such as program and central administrative costs. In Cherokee Nation v. Leavitt, two tribes (the Cherokee Nation and the Shoshone-Paiute Tribes of the Duck Valley Reservation) challenged this excuse directly, arguing that not having enough money to do everything was not a reason for the Indian Health Service to escape its contractual obligation to pay a tribe so long as the agency’s appropriations were sufficient to cover the contract support costs due under that specific contract. The Court agreed unanimously, holding that the Department was obligated to pay the contract support costs due under a particular tribe’s contract, even when Congress had failed to appropriate sufficient funds to the agencies to cover all necessary program and operating expenses, plus the contract support costs due all tribes collectively.
So while general under-funding of Indian programs provides a ready-made excuse for poor federal services on many reservations, it does not allow the government to escape liability for costs that are enshrined in a contract. As more and more tribes enter into contracts, more and more of these costs will be legally protected. (You might be wondering where the money to pay contract support costs will come from after the agency has exhausted its annual appropriation. The answer is that the U.S. has a separately funded Judgment Fund that exists to pay judgments when the U.S. loses in court, including losses in Contract Disputes Act cases like these).
Even after Cherokee Nation, however, the agencies continued to resist paying. In certain years, Congress actually imposed a statutory cap on the amount of money the agencies could use to pay contract support costs. The annual appropriations bill provided a lump sum for funding the agency, “of which not to exceed” a certain amount could be used to pay contract support costs. The agencies divided the available money among tribes, leaving many tribes with a shortfall. Cherokee Nation did not address the effect of this statutory cap, so the government continued to argue that the cap relieved them of the obligation to pay.
The existence of the statutory cap was the only difference between the two cases. In Cherokee Nation, the money was not available to pay contract support costs because the agency had chosen to allocate it to other things. The Court there pointed out that the agency could have reprogrammed funding from other agency needs to cover the costs due under tribal contracts. In theory, the agency could have directed all available funding to pay tribal contract support costs. In Ramah, on the other hand, Congress had expressly limited the amount of agency funding that could be used to pay these costs. As a matter of appropriations law, the agency was not free to reprogram other funding to cover excess contract support costs. Furthermore, ISDA specifies that the agencies need not take funding from one tribe to pay another, and the Anti-Deficiency Act makes it a criminal offense for federal officials to spend money that the agency does not have. The government argued that interplay of the appropriations cap, the ISDA provision, and the Anti-Deficiency Act meant that no more funding was legally available to pay contract support costs.
The Ramah Court rejected this excuse as well, holding that as long as there is enough money appropriated for contract support costs in a given year to cover a particular tribe’s costs, the government is obligated to pay those costs (and the tribe can sue to recover them), even if the money appropriated is not enough to pay the costs due under all contracts and even if Congress expressly limited the amount the agency was authorized to pay for such costs.
When tribes act as federal contractors, the Court has been willing to come out strongly in their favor using “ordinary Government contracting principles,” even against the U.S. and even when it means imposing a fiscal obligation on the federal government in an era when federal spending is widely scrutinized. Cherokee Nation and Ramah also highlight the tension between authorizations and appropriations when it comes to federal funding. As is the case with many federal programs, Congress is authorized to spend far more on Indian programs than it actually does. The appropriations committees are apprised each year of the shortfall in contract support cost funding, yet each year they fail to appropriate enough money to pay the costs due. In this case, the agency did not even ask for the full amount of money needed to pay its ISDA-related costs in its annual budget requests. By affirming the enforceability of the contracts, the Court has provided tribes with a powerful tool to push back against federal under-funding of Indian programs that they otherwise can do little about.
Doctrinally, the tribal wins in Ramah and Cherokee Nation are simply examples of the Court ruling in favor of the enforceability of government contracts. But this dry-sounding issue is actually crucial to modern Indian law practice, and this is where I think many Indian law teachers (myself included) are missing the boat. Indian law casebooks contain minimal information on the ISDA, and most teachers probably spend little or no time teaching students the mechanics of the Act (I spent half a class period last semester). Yet ISDA contracts are one of the most important tools of self-determination and success in the past three decades, and contract support costs have emerged as a critical component of them. Tribes faced with funding shortages have been forced to lay off staff, cut programs, and even withhold services like medical care. The estimated national shortfall for tribal contract support costs almost $800 million. The litigation surrounding payment of contract support costs has affirmed a crucial source of funding for tribal programs where general principles of Indian law, such as the federal trust responsibility, have failed. The wins in Ramah and Cherokee Nation may mean judgments in the millions for those tribes, and could mean over $1 billion for tribes nationwide.
One important lesson to take from these cases is that tribes seem to fare best when they can take advantage of more straightforward legal principles without having to rely on the special rules of Indian law, toward which the Court today seems skeptical at best and hostile at worst. Another important lesson, though, is that after passage of the ISDA, law students should at least be introduced to government contracting principles as a component of Indian law training.
Wednesday, June 27, 2012
Healthcare Case Predictions
Predictions about how the result of the healthcare case are so Wednesday afternoon. Surely there are more interesting things to predict in this case than the mere outcome. Let me suggest a few:
1) Length. Will the total number of pages exceed the average campaign finance decision or Neal Stephenson novel? Or will the Court decide to speak directly to the people, Brown-style -- ie., a short paean to healthcare, some opaque statements, and a conclusion?
2) Number of opinions. I'm going to guess seven opinions. But I'm willing to go as high as twelve, assuming additional opinions by both retired Justices plus a late-breaking, agonized additional decision by the late Justice Whittaker.
3) Strained language. If lawyers were poets, they would be --well, Archibald MacLeish, I suppose. If Justice Kennedy writes for the Court, what Kennedyesque phrases will appear? Perhaps: "At the center of healthcare is the mystery of life. And, occasionally, death. Also, bronchial infections." On the other hand, if the betting is right and Chief Justice Roberts took the majority opinion, I predict: "The way to achieve healthcare reform is to stop talking about healthcare reform."
4) "Respectfully's." Will the dissenting opinions employ the warm and collegial "I respectfully dissent," or will they unleash the fury of a thousand suns by writing "I dissent?"
I leave these matters open for respectful guesses. (Or, if you're outraged, just guesses.) I can venture some predictions more confidently:
5) If the mandate is struck down, Randy Barnett will immediately file suit to strike down other major legislation and overturn any remaining New Deal precedents. He will sternly point out that he is staking out a position in that case alone and that it is presumptuous to assume he has a broader agenda of any sort.
6) Again if it is struck down, the Yale Law School faculty will take up a collection to buy Akhil Amar a Care Bear and a nice "Sorry your life has been a fraud" card from Hallmark.
7) If you have an email address, you will receive a healthcare-decision-related fundraising solicitation from one or more political parties tomorrow, possibly including PRI and PAN. If you are like me, it will begin, "Dear Paula."
8) Tomorrow in Slate, Judge Posner will write a post suggesting that the Court's opinion is insufficiently pragmatic and lacks a healthy dollop of casual, armchair social science.
Other predictions on non-outcome-related matters are welcome. When the opinions come down, I will edit this post to reflect my completely correct prediction of the actual decision. In the meantime, I would like to thank the many brilliant friends who helped me write this post. And my mom.
Oh, you know what, I might as well venture my prediction. My view is that Roberts will join the liberal wing and that the mandate will be upheld -- although probably on tax grounds rather than the Commerce Clause. You heard it here first!
Immigration Makes Strange Bedfellows: How Arizona Convinced Scalia and Alito to embrace the Presumption Against Preemption
Being both a federalism fan and a libertarian can be stressful: As I have noted before, the principles are often at war with each other -- and no place more directly than in the Court's decision in Arizona v. United States. The press reported the decision as a sort of tie, with Arizona's managing to sustain section 2(B) of S.B. 1070, the provision requiring law enforcement officers to check a detainee's immigration status. This interpretation, however, is really a misrepresentation: Kennedy's opinion for the majority upholds section 2(B) by construing it as authorizing state law enforcement officials to check a detainee's immigration status only so long as they do not extend the duration of the detention to do so. The alien stopped for running a red light can be made to wait in his or her car for a bit while the officer calls ICE. But the officer cannot arrest the immigrant based on anything that ICE tells the officer. The officer cannot even detain the alien longer than the average traffic stop would take to ascertain the alien's status, because Kennedy's opinion imposes broad preemption on any unilateral state enforcement of the Immigration & Naturalization Act that is not specifically authorized by 8 U.S.C. section 1357(g).
In short, contrary to press reports, Arizona was routed by the United States: There is not enough of S.B. 1070 left over after SCOTUS worked it over to put in a box for a decent funeral. So...how should a good libertarian federalist feel about such a nationalistic yet libertarian decision?
On one hand, my libertarian instincts tell me that S.B. 1070 was a nasty and gratuitous piece of nativism: Good riddance to it. On the other hand, Kennedy deployed sweeping rhetoric of field preemption to dispatch section 3 (which added state sanctions for an alien's failure to register in accordance with federal law) and conflict preemption that might as well have been field preemption to eliminate sections 5(C) and 6 (making it a misdemeanor for undocumented aliens to accept Arizona employment and authorizing warrantless arrests respectively). Both varieties of preemption rested on the same appalling notion that I had thought Justice Kennedy had vigorously and rightly laid to rest in Gonzales v. Oregon -- the notion that an executive's interpretation of a statute embodied in an informal enforcement policy can have sufficient force preempt state law. The Arizona majority essentially adopted the view that the Immigration & Naturalization Act constituted a delegation of discretion to the President to set enforcement priorities in ways that would bar states from setting different priorities. From the perspective of federalism, this holding is devastating, because it transforms ordinary prosecutorial discretion (i.e., the power of the President to set federal priorities to conserve scarce federal resources for the most pressing priorities) into the power to limit states' enforcement of state priorities. Of course, as Justice Scalia noted, the latter cannot be justified by scarcity of federal resources, since the state is spending its own money.
And yet, in the end, I think that Arizona might ultimately be beneficial to federalism, for two reasons. First, Kennedy limited his extraordinary theory of Presidential preemption to the narrow context of immigration law (using the usual method of playing up Hines v Davidowitz and down-playing De Canas v. Bica). Second, the majority opinion managed to provoke from both Justices Scalia and Alito an angry invocation of the presumption against preemption.
It is worth pausing a bit on that second point: That Scalia and Alito would embrace this "presumption against pre-emption where traditional powers are at stake" (Alito's words at page 9) is an exceptional tribute to doctrinal opportunism. After all, both Scalia and Alito joined the 4-vote plurality opinion authored by Justice Thomas in PLIVA v. Mensing in which Thomas relied heavily on Caleb Nelson's justly famous article on preemption to call for the presumption's abolition. Kennedy specifically refused to join this part of Mensing, so that, until this Monday, the presumption against preemption seemed to hang by a single vote. I had earlier bemoaned this state of affairs as an attack by hyper-textual formalists against sound federalism doctrine.
But now Scalia and Alito seem to have been converted from "Calebism," and the presumption seems safe again, attacked only by the lone Justice Thomas and, perhaps, Chief Justice Roberts. How could Justices Scalia and Alito forget so soon their foray against the presumption that they now invoke?
My personal theory: I think that immigration policy makes people crazy. It is not simply that Justices Scalia and Alito simply forgot their own votes in Mensing. Justice Scalia also went so far off the tracks as to rely heavily on Mayor of New York City v. Miln for the proposition that states enjoy a core sovereign right to exclude people from their borders. Miln, you'll recall, is the 1837 opinion by Justice Taney that allowed New York City to bar "paupers" from its territory despite the dormant commerce clause. Aside from being overruled by Edwards v. California, Miln is now generally regarded as an appalling tribute to Jacksonian contempt for the property-less poor. Taney famously announced in Miln that "it as competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported." Edwards soundly rejected this view of states' sovereignty in 1941 by noting that "it will now not be seriously contended that, because a person is without employment and without funds, he constitutes a 'moral pestilence.' Poverty and immorality are not synonymous."
That Scalia would engage in such a doctrinal atavism as to rely on such a wretched bygone as Miln in order to defend Arizona is just as sign of how smart people become unhinged in the presence of undocumented aliens. What's next -- a citation to Dred Scott to define limits on Congress' power in federal territories? (More generally, the notion that states still have any sovereign right to exclude people from their borders after Saenz v. Roe is a weird fantasy that helps discredit Scalia's dissent more than anything Justice Kennedy could have written in the majority opinion).
But thank goodness! As a result of Scalia's and Alito's near-phobic reaction to the Obama Administration's immigration enforcement policy, seven justices have now paid tribute to the presumption against preemption. True, Hines has now become the banner of field preemption -- but only in the area of immigration: As a federalist, I can live with that. Meanwhile, Scalia's and Alito's nationalism has at least been undermined a bit by their embrace of the presumption against preemption for traditional state powers. It seems that their embrace of Caleb Nelson's nationalism was just a passing phase for the Nationalism Four -- a flirtation with scholarship that simply could not withstand prolonged exposure to an immigrant-friendly White House and a nativist Arizona.
"Just and Unjust Peace"
I just received my copy of my friend and colleague (in Political Science) Dan Philpott's new book, Just and Unjust Peace. I think this book will be of interest to a broad range of people -- not only international-relations and transitional-justice folks -- including criminal-law scholars engaged with punishment-theory and restorative-justice questions. Here is the O.U.P. blurb:
In the wake of massive injustice, how can justice be achieved and peace restored? Is it possible to find a universal standard that will work for people of diverse and often conflicting religious, cultural, and philosophical backgrounds?
In Just and Unjust Peace, Daniel Philpott offers an innovative and hopeful response to these questions. He challenges the approach to peace-building that dominates the United Nations, western governments, and the human rights community. While he shares their commitments to human rights and democracy, Philpott argues that these values alone cannot redress the wounds caused by war, genocide, and dictatorship. Both justice and the effective restoration of political order call for a more holistic, restorative approach. Philpott answers that call by proposing a form of political reconciliation that is deeply rooted in three religious traditions--Christianity, Islam, and Judaism--as well as the restorative justice movement. These traditions offer the fullest expressions of the core concepts of justice, mercy, and peace. By adapting these ancient concepts to modern constitutional democracy and international norms, Philpott crafts an ethic that has widespread appeal and offers real hope for the restoration of justice in fractured communities. . . .
I also really liked this bit, from The New Republic: "Just and Unjust Peace is a book of optimism, of hope, of insistently seeing the glass as half full. Humane but not fatuous or sappy, it is the exit ramp off Apocalypse Highway." Nice.
The Five Stages of Constitutional Interpretation
It seems to me that the liberal blawgosphere has followed the Kubler-Ross model in dealing with the possibility of losing the health-care cases: denial, anger, bargaining, depression, and acceptance. If that's the case, is Larry Tribe still in Stage 1?
UPDATE: Paul Horwitz said it first and best -- he seems to have achieved Stage 5 in March.
Happy 10th birthday to Zelman v. Simmons-Harris
I know that the whole world is focused on the upcoming Affordable Care Act decisions, but, ten years ago today, the Supreme Court decided -- the Court's opinion was authored by Chief Justice Rehnquist -- Zelman v. Simmons-Harris, which upheld the Cleveland school-choice program and, in my view, correctly said that the First Amendment does not disable governments from experimenting meaningfully (i.e., in a way that includes religious schools) with "vouchers", tax credits, scholarships, etc. For more, see my "The Right Questions about School Choice: Education, Religious Freedom, and the Common Good" (here).
Although the progress has been slow, and the political "headwinds" are still strong, my sense is that various states (including my own Indiana) are starting to try the kinds of programs and policies that Zelman allowed. More, please.
Nora Ephron, Distinguished Legal Theorist, RIP
It's with great sadness that I note Nora Ephron's passing. Here's the Times obit. She did so many things surpassingly well that I'm struck by the absence of discussion about her many contributions (perhaps unwittingly) to the realm of legal theory. Tomes could be written on her insights as they apply to law, and not just the human condition. Here are just a few treasures of hers. Feel free to add your own in the comments. May her memory be a continued blessing to those who loved her.
1) In the end, I always want potatoes. Mashed potatoes. Nothing like mashed potatoes when you’re feeling blue. Nothing like getting into bed with a bowl of hot mashed potatoes already loaded with butter, and methodically adding a thin cold slice of butter to every forkful. The problem with mashed potatoes, though, is that they require almost as much hard work as crisp potatoes, and when you’re feeling blue the last thing you feel like is hard work. Of course, you can always get someone to make the mashed potatoes for you, but let’s face it: the reason you’re blue is that there isn’t anyone to make them for you. As a result, most people do not have nearly enough mashed potatoes in their lives, and when they do, it’s almost always at the wrong time."
2) You're the worst kind; you're high maintenance but you think you're low maintenance.
3) But, really, what's so hard about finding an apartment? What you do is look in the obituary section. You see who died, find out where they lived, and tip the doorman. What they could do to make it easier is combine the two. You know, Mr. Kline died yesterday, leaving behind a wife, two children, and a spacious three bedroom apartment with a wood burning fireplace.
In the one article I've written about Twiqbal, I examined the potential impact on constitutional and civil rights litigation, with a particular focus on a case out of the Ninth Circuit called Moss v. Secret Service, a § 1983 and Bivens action against Secret Service agents and local police who allegedly moved a group of protesters to an unfavorable position away from a restaurant where President Bush was eating pursuant to White House and Secret Service polic, while leaving a group of Bush supporters in place.
In the article, I criticized a 2009 panel decision dismissing the claim on Iqbal grounds, dismissing several allegations as conclusory (notably allegations of motive and policy) and taking a very crabbed reading of the remaining factual allegations. I argued that this demonstrated the problems with Iqbal, because it was not clear what more the plaintiffs could plead and that the plaintiffs likely would lose without getting past pleading, although the plaintiffs had been granted leave to replead. So much for my predictive power; two months ago, a Ninth Circuit panel held that the Second Amended Complaint was pled sufficiently and remanded the case to the district court to allow it to move forward.What changed? For one thing, the plaintiffs supported their allegations of a policy with detailed allegations, based on published reports, of past incidents of similar treatment of anti-Bush protesters. They also included a copy of the Presidential Advance Manual (presumably obtained through early discovery), which suggested a White House policy of working with the Secret Service to move protesters. For another, the new complaint clarified that the protesters were moved farther from the inn than the pro-Bush demonstrators. For another, the court was simply more willing to adopt plaintiff-friendly inferences. For example, the first court held that moving the protesters one block away did not plausibly lead to the inference of viewpoint discrimination, because the plaintiffs still could be heard; if the goal was to silence them, they would have been moved even further away. By contrast, the second court concluded that it is a plausible inference that they were moved to somplace from which their speech would be less visible or intelligible.
So what can we conclude about Iqbal from the developments in this case? On the good side, it shows that it is possible for civil rights plaintiffs, given another opportunity, to plead sufficient non-conclusory facts and to survive 12(b)(6). But I want to suggest that, despite the result in this case, Moss better demonstrates the problems with this pleading regime.
First, it shows that a plaintiff's ability to plead non-conclusory facts may depend entirely on circumstance. The plaintiffs were able to plead in the amended pleading because they had public reports of past similar incidents, which supported the inference of a policy. But suppose the prior incidents had not been publicized. Or suppose this case had been the first instance in which that policy had been implemented.
Second, it shows the inherent subjectivity in the analysis. The second panel found several inferences to be plausible that the first panel had not found plausible; these include inferences about the pretextual nature of the agents' stated reasons for moving the protesters and about the significance of the protesters being less visible or intelligible from their new location. I have no great problem with subjectivity generally, since law is rarely, if ever, objective. Having looked at both pleadings and both decisions in Moss, it is hard to tell the difference between them. The only difference between the pleadings is the level of detail as to the policy--but Iqbal is not supposed to be about how much detail, but about the "so what" of the facts included.
Third, it shows that this is not worth the candle. This action was originally filed in 2006; six years later, we are just now finishing pleading and going back to the district court for serious discovery. But everyone has known all along what this case was about, what inferences that the plaintiffs would need the factfinder to draw, and what facts would come out in discovery to indicate viewpoint discriminatory intent. So why spend so much time on the complaint? And a doctrine, such as Iqbal, that forces us to do so is problematic.
Tuesday, June 26, 2012
The Math of 5-4 Summary Reversals (or, What I Don't Get About Bullock)
I'm late to the party re: the Supreme Court's 5-4 summary reversal yesterday in the "Citizens United sequel," American Tradition Partnership, Inc. v. Bullock. More to the point, I'm not an expert on campaign finance law specifically, or the First Amendment generally, so I'm not sure I have much to add to the various substantive reactions percolating around / pervading the blogosphere. Instead, the fed courts nerd in me gravitated toward the oddity of the disposition--a 5-4 per curiam summary reversal. While there have cerainly been 5-4 per curiams before, and 5-4 decisions without argument (see Garcia v. Texas for an example of both), off the top of my head, I couldn't think of a single 5-4 summary reversal--and my copy of Stern & Gressman is 4000 miles (and one very big ocean) away.
The reason why 5-4 summary reversals are so unusual is actually somewhat straightforward: As we know, it only takes four votes to grant a petition for certiorari, whereas it (usually) takes five votes for dispositions on the merits--including summary reversals. Whether because it would undermine the four-to-grant rule or for some other reason, the Court by tradition has historically given precedence to four votes for plenary review over five votes for a summary reversal. Thus, a 5-4 summary reversal could only occur if both (1) exactly four Justices object to a summary reversal; and (2) not all of those four want plenary review. [Note that this also explains why the old belief in a "rule of six" for summary reversals probably was never true--five will suffice so long as the other four don't all prefer plenary review.] And needless to say, although either scenario is relatively common, their confluence is not, for reasons I elaborate upon below the fold...
One possibile situation in which such an outcome could occur is where the four dissenters would have summarily affirmed the decision below--and are therefore dissenting on the merits, rather than on the summary disposition (an example of this appears to be the Court's last 5-4 summary reversal: Riggan v. Virginia, 384 U.S. 152 (1968), which I found through this blog post). For obvious reasons, I have to think that this is a vanishingly small set of cases.
The second way such an outcome could arise is what happened in Bullock: where at least one of the four opponents of summary reversal votes to deny certiorari rather than to grant plenary review (in Bullock, all four of the "dissenters" so voted). In a typical error correction case, one could imagine this happening if some of the dissenting Justices just didn't think the decision below was worth the Court's time one way or the other. Indeed, examples abound of 6-3, 7-2, or 8-1 summary reversals where at least one Justice objected on such terms without expressing a view as to either the merits or the form of the disposition. Perhaps it's just a fluke that there aren't similar examples of such a split in a 5-4 summary reversal; perhaps it's a reflection of deeper institutional realities, since it would be odd if five Justices thought an error so egregious as to warrant a summary reversal and the other four thought the error utterly unworthy of correction.
But whatever else Bullock was, it wasn't a typical error correction case--as made abundantly clear by the Ginsburg/Breyer opinion respecting the stay. And that's where things get interesting...
Let's start with the obvious: I think Rick Hasen is exactly right to suggest that such a move by the lefties is actually a "relative victory" for campaign finance reformers, given the extent to which "[t]aking the case would have been an opportunity for the majority of Supreme Court justices to make things worse [from the reformers' perspective], such as by suggesting that limits on direct contributions to candidates are unconstitutional." I'd only add the stare decisis point: separate from what the Justices didn't have a chance to decide, even what they did decide, i.e., that Citizens United applies to state campaign finance laws, will not have the same value qua stare decisis going forward, since "[a] summary disposition does not enjoy the full precedential value of a case argued on the merits and disposed of by a written opinion." That won't matter in the short term, but it certainly could matter if the day comes when there are no longer five strong votes to defend Citizens United...
To be sure, I don't think any of this analysis is particulary earth-shattering. Whatever one thinks about the merits of Justice Breyer's move, it's a relatively obvious one, at least once it became clear that there were five unshakeable votes to slap down the Montana Supreme Court. But if it really was that clear, then the less obvious, more interesting question becomes why the conservative Justices acquiesced, since nothing would have stopped any four of the five Justices in the majority from opting for plenary review instead of a summary disposition.
New judicial appointee in S.D. Fla.
The Senate this morning confirmed Robin Rosenbaum to a seat on the United States District Court for the Southern District of Florida. Robin's sister, my friend and colleague Marci Rosenthal, runs FIU's Legal Skills & Values program.
We assume that Hillary Clinton will deliver Robin's commission in due course.
Choosing your own decisionmaking processes
At Sunday's Olympic Trials in the women's 100m, there was a tie for third place (the final spot on the team). And now the question is how to break the tie, with the options being a coin flip or a run-off between the two women, Allyson Felix and Jeneba Tarmoh. But it gets more complicated, because the choice is delegated to the runners: If they agree on a process, they use that. If they disagree on their preferences, they use a run-off. And if no one expresses a preference, they use a coin flip.
This raises a couple of interesting issues:
1) As Miriam Cherry discusses at CoOp, Olympic officials have avoided making a decision (and having to provide reasons for the decision) by delegating the choice to the participants, something judges typically are unable to do.
2) Is there any doubt that world-class athletes will choose the run-off? And, if so, why? Is it fear of randomness? Is it a desire for control? Is there something unique about professional athletes that influences their choices?
3) Note the game theory element to this. If they state a preference and disagree, it's a run-off; if one or both decline to state a preference, it's a coin flip.
What To Do When Friends Sue Friends
I was reminded again this morning about how difficult it is to isolate what judges should do when presented with two (former) friends litigating in their courtrooms. Consider this recent decision from Northern Ireland.
A friend gives a loan to a counterpart to help with a business venture. The interest rate set is 36%. The counterpart can't pay back and tries to deny details about the loan, the friendship, and the reasonableness of the interest rate. In this decision, the court uses facts about the friendship both to find liability between friends -- and to relax the interest rate. It is an interesting way to see friendship's relevance to help both parties to the dispute. I explored some of this ambivalence about friendship's role in the courtroom in a piece earlier this year here.
H/T Paul MacMahon of Cambridge
An Old Quality of Life Crime
I took this picture in a small alley off the Via Giulia in Rome.
Here's the translation:
By order of the Monsignor and President of the Streets, it is prohibited to any person to hurl on this site 'immondezze' of every kind under penalty of 15 scudi and other discretionary penalties, as published in the edict of August 10, 1765 , as to which and...
I've left the word 'immondezze" untranslated because it could mean a couple of things. The most certain meaning is litter, which would make this an anti-littering ordinance. But immondezza (or immondizia) can also mean any immorality or act of turpitudinousness. And the modifying phrase "di ogni sorta" -- which I've translated as "of every kind" -- suggests that this may have been more like a general disturbing the peace offense.
The other interesting feature of the law is that it vests a great deal of discretion in the Monsignor and President of Streets (a kind of administrator of transportation) to decide what counts as an immondezza and to impose an appropriate punishment (possibly to exceed 15 scudi), but the punishment must conform with the range of penalties prescribed by statute -- the edict of 1765 dealing with such matters.
You see -- there is lots of precedent for our current federal sentencing system.
Monday, June 25, 2012
The Joy of Free, Redux
I have an op-ed in this week's Forward that largely rips off riffs on a blog post I had here a couple weeks ago. The piece has to do with why "free" is not obviously a terrible model to use (in the context of Jewish continuity and community-building efforts).
Religious Freedom and the Nondiscrimination Norm
Returning to a Prawfsblawg hobby-horse of mine . . . here's a paper of mine, finally in shape for SSRN posting, from a really fun conference (more here and here) that Austin Sarat and Paul Horwitz organized down at Alabama last year. And, here's the first bit of the abstract:
“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may
regulate or discourage it even when it is. Some wrongs are beyond the
authorized reach of government policy; some are too difficult or costly to
identify, let alone regulate; others are none of the government’s business.
When we say that “discrimination” is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited
powers to do so. To label a decision or action “discrimination” is simply to
note that one factor or another was or will be taken into account in the course
of a decision; it is to invite, but not at all to answer, the questions whether
that decision or action was or would be wrong, and whether the public authority
may or should forbid or discourage it.
Parenthood for the 0.5%
When Dan posted about Anne-Marie Slaughter's piece in the Atlantic, Why Women Still Can't Have It All, I was intrigued but did not rush to blog about it. Slaughter's experience reflects a pretty rarefied slice of life. Dan described Slaughter, a Princeton professor and former Director of Policy Planning at the State Department, as a "high flyer." Me? If I fly at all, I travel coach. I have school-aged children and teach at a non-elite law school. My initial reaction to the Slaughter piece and its reception was fatigue, or maybe even a little boredom. It's difficult to combine engaged parenting with "high government office"? Yup. It would be easier on working parents if we abandoned our norm of "the ideal worker"? Check. Employers should experiment with expanded leave policies and demand less face-time? Amen. I agree, as currently constructed, professional and family life can create, as Slaughter says, "unresolvable tensions." In fact, it can seem like a set-up. My major reaction to her piece, however? Slaughter's concerns are not the problems of most parents, men or women.Slaughter describes her post as Director of Policy Planning at the State Department as "a job that is typical for the vast majority of working women (and men)." She's referring there to the long, inflexible hours, but, sorry, no. That job's not typical. In his initial post, Dan noted that Slaughter's piece did not engage issues of "distributive justice." Actually, Slaughter links the lack of female representation in positions of power to the problems affecting women in other walks of life. She writes, "only when women wield power in sufficient numbers will we create a society that genuinely works for all women." Really? That will solve the problems of middle- and working-class families? Of course, I would prefer to see more diverse representation in all positions of power. But the greatest divisions that I see are between have's and have-not's, not between men and women. Slaughter argues that "we may need to put a woman in the White House before we are able to change the conditions of the women working at Walmart." In our current economic situation, that seems a bit of a non sequitur. She acknowledges that many mothers "are worrying not about having it all, but rather about holding on to what they do have." That rings true. And it also seems like a far more compelling set of issues.
Sunday, June 24, 2012
The Journal of Universal Rejection
As law review submission season approaches, if you are tired of hearing that your groundbreaking article is one of thousands received by the XYZ Law Review, that the XYZ Law Review can only publish a handful of the excellent submissions it receives, but that the XYZ Law Review thanks you and hopes you will think of it when submitting future work, I suggest you consider an initial and exclusive submission of your piece to the Journal of Universal Rejection. Unlike, say, the Yale Law Journal, which for me but not everyone is the Journal of Certain Rejection, at the JUR I am (or would be if I had the courage to submit) on equal standing with every other scholar in the world - there is no letterhead bias whatsoever.
There the piece may be ignored, but there is the possibility that it will be "peer-skimmed," and you could be lucky enough to get a rejection letter from Caleb Simmons, the manager editor himself. But as the journal's motto goes, reprobatio certa, hora incerta ("rejection is certain, but the hour is not"). The journal does, however, guarantee to accept your money for cool swag like the pictured t-shirt (note the incorporation of the motto in the classy logo).
Here is a quote from the submission guidelines:
After submitting your work, the decision process varies. Often the Editor-in-Chief will reject your work out-of-hand, without even reading it! However, he might read it. Probably he'll skim. At other times your manuscript may be sent to anonymous referees. Unless they are the Editor-in-Chief's wife or graduate school buddies, it is unlikely that the referees will even understand what is going on. Rejection will follow as swiftly as a bird dropping from a great height after being struck by a stone. At other times, rejection may languish like your email buried in the Editor-in-Chief's inbox. But it will come, swift or slow, as surely as death. Rejection.
The journal also maintains a blog highlighting particularly interesting rejections (achieving that honor would be as cool as making it through as a caller on Car Talk or Wait, Wait, Don't Tell Me!, two of my other longstanding unfulfilled ambitions), and it has a featured place on my RSS feed.
Changing the rhetoric on women's sports
The sports world marked yesterday's 40th anniversary of Title IX by showing a lot of women's sports on TV, including Olympic trials in a number of sports (such as diving and track) and a marathon of WNBA games.
I also caught a new Nike ad, titled Voices. It features close-up shots of basketball players Diana Taurasi and Lisa Leslie, boxer Marlen Esperaza, and marathoner Joan Benoit Samuelson (I still remember her winning the first Olympic women's marathon in Los Angeles in 1984, wearing a white painter's cap) talking about the obstacles and challenges they faced growing up and starting to play sports. Notably, each of the four is a different age (ranging from 20s to 55) and grew up at different stages in Title IX's 40-year history. Those head shots are interspersed with shots of young girls in uniform lip-synching their comments. This ad can be seen as the successor to Nike's famous 1995 If You Let Me Play (regarded by many as one of the all-time best ads). Both can be seen after the jump.
In watching them, note the new rhetoric and narrative. The earlier ad tried to convince the viewer that women and girls should be ableto play sports by citing all the instrumental benefits that come with participation in sports (better grades, increased self-confidence, better health, etc.). The new ad says that women and girls do and should play simply because they want to. Oh, and because they're really freaking good. This strikes me as progress.Voices:
If You Let Me Play:
Friday, June 22, 2012
The People's Law School
Today in 1934, the Reich Association of the German Automobile Industry commissioned Ferdinand Porsche to design a "people's car" that would be marketed to the masses, and that would serve as a competitive alternative to models that were only accessible to a fortunate few. Porsche's design later became the Volkswagen Beetle. If you had to design a model for a "people's law school," what would it contain, and how would it compare to schools that already exist?
Opt in, opt out
The opt-in/opt-out question is an important, but infrequently discussed, aspect of First Amendment doctrine. Broadly speaking, how should the First Amendment handle people who want to take themselves out of the expressive marketplace? Two main groups may want to do this. One is unwilling speakers, those who do not want to speak or to support speech, exemplified by the objecting nonmember dues payers in Knox. A second group is unwilling listeners, those who do not want to listen or see someone else's expression.As to listeners, the general rule has been opt-out. The burden is on the listener to avoid objectionable speech. This is reflected in the rule against hecklers' vetoes and the command of Cohen that those who want to avoid an objectionable message must "avert their eyes." It also explains Lamont v. Postmaster General, where the Court invalidated a postal regulation requiring the seizure of certain mail unless the recipient affirmatively requests that the mail be sent to him. The onus was on the unwilling recipient to block the mail, which also protects the willing listener from having to affirmatively declare to the government that he wants to receive communist propaganda. Finally, it also explains why the FCC imposed a do-not-call list to limit telemarketing, putting the burden on the callee to stop the calls. Protecting unwilling listeners from offense or annoyance (as opposed to genuine harm) will rarely be a sufficient government interest to uphold a restriction on speech; hence the line between a cross burned as a threat and one burned as part of a broader public statement.
There are examples in the other direction. Most notable are abortion-facility-protest cases, under which protesters can be prohibited from approaching or communicating with patients unless invited. But this typically involves face-to-face speech, which receives less protection. There is the so-called captive-audience doctrine, but again relatively limited. And the Court rejected opt-out in favor of opt-in as to public libraries' use of internet filters.
So the jurisprudential trend places the onus on the unwilling listener to avoid unwanted speech in favor of allowing the willing speaker greater freedom. And the opt-out default generally makes sense here. A willing speaker has a greater right than an unwilling listener, at least where the speaker is speaking to the public and not to the listener alone. There is no way that someone addressing a mass audience can get the permission of the entire audience, so administrative simplicity favors putting the burden there. This also is consistent with the First Amendment's preference for "more speech," which we get both by reducing the cost and burden on a speaker to produce and disseminate his speech and by ensuring a wider possible audience.
So what about unwilling speakers/funders, as in Knox? Here, we have a willing speaker (the union) pitted against unwilling speakers (nonmember dues payers) who have a right not to speak, including a right not to have to fund someone else's speech. If an opt-out is enough to protect an unwilling listener, should it be sufficient to protect an unwilling speaker?
The majority in Knox viewed the unwilling speaker's rights as largely trumping the willing speaker's, so it felt comfortable placing the entire burden on the latter. The likely reduction in "more speech" that comes with an opt-in was justified by the need to protect the unwilling speaker from ever having his money used for objectionable political purposes, even for a brief time and even if he ultimately will get it back. This is a very broad understanding of compelled speech; even the momentary use of one's money for objectionable speech violates the First Amendment. Moreover, the Court was implicitly saying that the administrative burden on the willing speaker is not so much greater with an opt-in than an opt-out; the union is obligated to provide (and update) notice in either event, so the nature of the notice was irrelevant.
Is this the proper balance? If an opt-out is appropriate as to unwilling listeners, there may be a benefit to using the same standard for all unwilling speech actors, so we have some consistency. Moreover, I think the Court downplayed too much the loss of speech and the burden on the union from opt-in, while overplaying the burden on the objectng funder from a temporary payment. The Court recognized the union's rights (cleverly citing Citizens United for the proposition), but then seemed to minimize the effects of an opt-in command on those rights. The goal of "more speech" seemed to fall by the wayside.
Thursday, June 21, 2012
The First, Second, and Third Laws of Rumor
I know nothing about how well secrets get kept within the hallways and chambers and conference rooms of the Supreme Court as discussed in Ethan's post, but I'm fascinated because it's possible it constitutes an exception to Lipshaw's First, Second, and Third Laws of Rumor. (The picture at left represents how I think of myself as I announce these laws.)
I mentioned in a comment that I had heard an old Sicilian saying that if more than one person knows something, it's not a secret. My recollection is that my friend Joe Andolino said that to me back in my corporate executive days. It was during that conversation I first announced the First and Second Laws. This is an important day, however, because as I have been writing this out, the Third Law has just occurred to me.
The First Law can be expressed mathematically as AP=KP4, where AP signifies the actual number of people who know the secret, and KP4 signifies the fourth power of the people that you know know the secret.
The basis for the exponential aspect of the First Law is the Second Law, which says that no matter what commitments the learner of the secret has made to the discloser of the secret (in my world, these people are called the "tipper" and the "tippee") about not disclosing the secret to anyone else, the learner will in fact disclose the secret to at least one other person upon obtaining a commitment from that person that he or she will not disclose the secret.
Finally, the reason that the exponent is 4, and not much higher or infinite is the Third Law, which says that at a certain point in the operation of the Second Law, the learner just doesn't give a ****.