Friday, January 13, 2017
The Blue Inhaler
I carry an albuterol inhaler as my quick relief medication for asthma. I use it infrequently, which is good news for me and good news for my asthma. Known in many other countries as the blue inhaler or the blue puffer, albuterol/salbutemol is a tremendously popular and effective relief inhaler. First brought to market in the 1980's, sales of the blue inhaler have grown as have rates of asthma diagnosis.
Traveling recently in the E.U., my albuterol inhaler stopped working short of its full number of available measured doses. And so I was off to my neighborhood pharmacy in Ponta Delgada, hoping that a licensed pharmacist might be able to prescribe inhaled albuterol over the counter and spare me the quest for the Centro de Saude on New Year's Day. Frequent travelers are no doubt aware that certain prescription only medications in the United States may be sold over the counter in other countries or dispensed at the discretion of a licensed pharmacist, even in the absence of a prescription, in still other countries.
One glance at the Pharmacia Moderna receipt found above will tell you I was successful. I was seen quickly by a licensed pharmacist who discussed my symptoms, examined my current inhaler (stunned, it seemed, that the United States would allow a relief inhaler to be packaged in bright red or anything other than the blue that is the color coded signal to asthmatics the world over that a rescue inhaler is at hand), and sold me a full size blue salbutemol inhaler for just under 3.75 Euros. I paid for it with pocket coins.
Today, I will not discuss drug pricing in the Açores beyond mentioning that Portugal (the Açores are an Autonomous Region of Portugal) uses a reference drug pricing system to set prescription drug prices. The reference involved is to drug pricing in several other countries (varying yearly, but often including Spain). Portugal, in short, is not interested in being an outlier in prescription drug acquisition cost nor an outlier in prescription drug cost to consumers. For some years, in fact, Portugal's citizens paid less than other reference countries for certain pharmaceuticals, something that has been increasingly altered by a Memorandum of Understanding relating to drug costs, promoted by the E.U. after the latest financial crisis.
The price to me was a remarkable ten percent of my U.S. commercially health insured co-pay cost for the differently-named albuterol inhaler. The contents, however, were the same, though the color of the casing on my damaged inhaler disturbed my Açorean pharmacist and the lack of a dose meter mechanism on the blue inhaler sold to me in Ponta Delgada disturbed me. I have written elsewhere about the problems of relief or rescue inhalers without dose meters.
What was equally stunning, however, was the ease of the entire encounter. I had a new relief inhaler in hand inside of ten minutes. No visit to the the clinic, no transferral of the prescription from the clinic to the pharmacia, no complicated health insurance negotiations over whether a new inhaler would be covered (it was broken) or not covered (my request for a new inhaler was untimely by calendar standards).
This made me want to know if the blue inhaler is an over the counter drug in other countries. Sure enough, the blue puffer can be bought in a U.K. supermarket, in a drug store without prescription in Australia and Spain, and elsewhere all for about the price I paid at Pharmacia Moderna. Tracking backward to check if a push had ever been made to allow Albuterol inhalers to be sold over the counter in the U.S., I learned of a relatively recent effort by the FDA to generate discussion about the possible creation of a third class of medicines: over the counter, over the counter with conditions of safe use, and prescription.
Last widely discussed in 2012, the FDA held hearings on the OTC/SCU category's appropriateness for formerly prescription only items like steroidal asthma inhalers. Multiple days of hearing on the idea produced varied positions, including AMA opposition to the encroachment on physician scope of practice. One AMA spokesperson supported pharmacist supervision of OTC/SCU prescribing, as soon as the relevant pharmacist had gone to medical school. The FDA proposal went nowhere.
I know of no place in the U.S. where OTC/SCU prescribing involving steroid inhalers has gained any traction after the 2012 blowup at
the FDA, though pharmacist prescribing is developing a bit of a track record in Canada and in the U.K. Our own state-based experiments with pharmacist prescribing authority are a mixed bag of programs based on dependent authority (collaborative practice with licensed physicians) and independent authority (think Oregon, Washington, and California's hormonal contraceptives statutes) but they have proven extremely limited in scope.
And the blue inhaler? Google it, if you like, and read all the apparently U.S. based articles and chat board discussions on how to survive an asthma attack without a relief inhaler.
Monday, January 09, 2017
Dialysis Care's Tangled Web
Thank you to PrawfsBlawg for the opportunity to guest blog this month.
Christmas Day was the perfect day for the New York Times to publish its article on interesting goings on at The American Kidney Fund, one of the largest charities in the United States. Why? Well, Christmas Day is usually a slow news day and even trying to understand how dialysis care is funded for Americans is a slow read. It may be that all health insurance topics that span government-funded insurance as well as commercial insurance in the U.S. are a slow read. This is because our health insurance systems are complex but also because our health insurance systems are under-discussed.
Renal failure patients have been a special disease group under Medicare since 1972, when Congress extended Medicare coverage to people of any age with kidney failure. The "kidney entitlement" (as it is sometimes known) is distinctive in this regard. The story of the movement of dialysis from experimental to medical treatment, the rise of the dialysis industry, and the sympathetic face of end stage renal failure patients all played a role in the dance of this legislation. Indeed, a dialysis machine was reportedly brought to a Congressional hearing, though the account that a patient was actually dialyzed before members of Congress may be the stuff of urban legend. The early 1970's was also a time of hope for comprehensive national health care reform, with the kidney entitlement seen by some as a stop-gap measure, not as an exercise in exceptionalism. For all these reasons -- and more -- we saw the development of the extension of Medicare coverage for dialysis to a disease group that included many who would formerly have been outside of the Medicare tent.
Dialysis evolved as did the dialysis industry. The nonprofit American Kidney Fund, from modest beginnings as a fundraising drive for a bankrupt dialysis patient, grew into a reportedly majority dialysis industry funded charity whose premium support program allowed the American Kidney Fund, federal health care fraud and abuse law notwithstanding, to expand the relationship between the dialysis industry and the charity through collection and distribution of funds in the form of health insurance premium payment, including Medicare and commercial insurance premium payment for end renal failure patients.
In health care delivery, payer mix is all. A health care delivery entity's business model necessarily revolves around a favorable payer mix. Fresnius and DaVita, for example, were reported to receive $300,000 per patient per year from the Oregon state insurance pool for a year of dialysis treatment in 2011 as compared with the $82,000 they were reportedly able to bill Medicare in the same year. Now, allegations have been made that the American Kidney Fund excludes applicants from health care entities that do not contribute to the Fund, though this would be an apparent violation of the terms under which the premium support program was found not to violate health care fraud and abuse law.
In addition, litigation by United Health tips us off to the fact that the dialysis industry may -- in light of the extraordinary reimbursement differentials -- have decided that the best use of premium support funds was to enroll renal failure patients in commercial insurance. In addition, it has historically been the policy of the American Kidney Fund to terminate all premium support if a patient pursues transplant and dialysis terminates.
In this tangled story of dialysis treatment we have the larger American health care system's incentives written on a grain of sand: each insurer determined to push risk and cost on its competitors; each provider entity determined to retain its market share and maximize reimbursement rates; and a charity program perhaps operating as a demand-enhancement reimbursement maintenance control center.
Monday, January 02, 2017
Why We Need to Talk about Trump & Press Freedom
On Wednesday, January 5, AALS2017 kicks off with a panel on Trump & Freedom of the Press in the Plaza Room Lobby Level of the Hilton Union Square at 8:30 am.
RonNell Andersen Jones (Utah), Amy Gajda (Tulane), Sonja West (Georgia), Erwin Chemerinsky (UCI), John Diaz of the San Francisco Chronicle, and I will be discussing what the Trump presidency might bode for press freedom. In preparation for the panel, I thought I'd share with you the research I've done suggesting why this discussion is necessary and timely. In short, here are the reasons that the media (and those of us who value the role they play in our democracy) have legitimate causes for concern that press freedom might be curtailed during the Trump Administration.
First, Donald Trump has shown himself to be remarkably thin-skinned about unflattering press coverage. Throughout his campaign and after, he has publicly berated Saturday Night Live, the New York Times, and many, many other news organizations and individual journalists (too many to enumerate here, as is evident from this list compiled by MediaMatters.org) for criticizing him or simply for covering him. Shortly after the election, he called television news anchors and executives to Trump Tower to browbeat them for their "dishonest" and "short sighted" and "outrageous" election coverage. He singled out CNN and NBC as the "worst," calling CNN "liars." All of this seems a bit churlish from a candidate who got at least $2 billion worth of free air time from these same media actors and did not hold a press conference from July 2016 until the end of December. Nonetheless, it suggests that the relationship between this President and the press will not be a smooth one.
However, more alarming than Trump's propensity to take offense at even the most innocuous press criticisms was his propensity to incite supporters against the press during his campain. Certainly other elected officials have villified and will doubtlessly continue to villify the press to score political points (think VP Spiro Agnew's "nattering nabobs of negativism"). However, Trump turned up the heat beyond anything previously seen. As Margaret Sullivan wrote in The Washington Post, "Donald Trump made hatred of the media the centerpiece of his campaign. Journalists were just cogs in a corporate machine, part of the rigged system." During his campaign events, he restricted press to a "pen" and then inflamed his supporters by calling them dishonest and accusing them of rigging the election and inventing stories to discredit him. His supporters often responded with boos, ugly gestures, and chants of "liars", "assholes," "CNN sucks!," and worse, causing some reporters to fear for their safety.
Trump further displayed a lack of appreciation (or perhaps contempt?) for pool reporters by denying them traditional avenues of access. Unlike previous candidates, Trump never allowed the press on his plane. He also revoked credentials or denied credentials of those who garnered his special ire. Although Trump has promised to have a "normal" press pool as president, he's shown a willingness since being elected to deny pool coverage of important meetings and to ditch his press pool at will. He's also stated he may change the format of press briefings, in an as yet unspecified way. On a somewhat more positive note, he has granted interviews to several outlets since his election, including The Today Show, 60 Minutes, The New York Times, The Wall Street Journal, and Time Magazine, though his anti-media rhetoric and disrespect for traditional channels of access cast doubt on whether this trend will continue once he's in office.
Other causes for concern about Trump's respect for press freedom abound. During the campaign, he promised, if elected, to "open up libel laws" to make it easier for public figures to sue the press, a threat that betrays a fundamental misunderstanding of libel law and constitutional constraints on the President. More alarmingly, Trump has shown a propensity to threaten lawsuits against journalists or actually sue over both innocuous criticisms and normal news coverage. As an ABA report revealed, "Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics. But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court." Defending libel suits is expensive, even if one ultimately wins; thus, the mere prospect of being sued for libel can have a chilling effect on reporting. In fact, there's evidence that Trump's reputation as a "libel bully' has already chilled some speakers and is likely to chill others.
Beyond that, Trump has praised ruthless dictators who have trampled press freedoms and targeted journalists for assassination. In fact, when asked if his praise of Vladimir Putin was tempered by Russia's killing of journalists, Trump said no: “He’s running his country, and at least he’s a leader, unlike what we have in this country.” Such rhetoric would be chilling, even in isolation, but of course it is not in isolation.
Meanwhile, Trump comes into office on the heels of a President who has already eroded the press's ability to perform its watchdog role by aggressively pursuing leaks investigation against government employees, subpoenaing reporters to reveal confidential sources, and monitoring telephone and email records of journalists in service of leaks investigation. As Dana Priest of the Washington Post stated: “Obama’s attorney general repeatedly allowed the F.B.I. to use intrusive measures against reporters more often than any time in recent memory. The moral obstacles have been cleared for Trump’s attorney general to go even further, to forget that it’s a free press that has distinguished us from other countries, and to try to silence dissent by silencing an institution whose job is to give voice to dissent.” President-Elect Trump has not signaled whether he will continue such practices, but the fact that his former campaign manager said that the executive editor of the New York Times should be in jail for publishing Trump's tax returns doesn't exactly inspire confidence. Trump also has not signaled how executive agencies within his administration will be directed to handle Freedom of Information Act requests, and although an RNC spokesman has praised the transparency of the Trump transition, Trump's previous treatment of the press, together with his refusal to release his tax returns, certainly gives reason for doubt on this score as well.
In addition to these causes for concern, the media have their own issues that may hamper their ability to perform their watchdog role during the Trump presidency. Trump is a genius at newsjacking. He is able to set the agenda of the media with his tweets and drown out negative coverage. Trump's "Hamilton" tweet, for example, garnered more eyeballs than the $25 million settlement of a fraud suit against Trump University. Meanwhile, the struggle to maintain press freedoms comes at a time when the public's views toward the media are increasingly hostile, many segments of the media face revenue challenges, and fake news undermines the role of legitimate journalism in furthering democratic self-governance. [Not to mention that "post-truth" was the OED's 2016 word of the year.] These issues, and many more, will give the Trump & Press Freedom panel ample fodder for discussion. I hope you can join us.
Friday, December 02, 2016
Pedagogy and the Election
With my last post this election cycle, I wanted to do two things: first, to say thank you to Howard for the invitation and to my fellow contributors for their insights; and, second, to describe one important step that my colleagues at the University of Washington have taken in response to the presidential election and the questions it has raised.
My colleagues have designed a new course, entitled “Executive Power and Its Limits.” This course explores the boundaries of the presidency and the regulatory state. As designed by two of our administrative law experts, Sanne Knudsen and Kathryn Watts, the course is part overview, with discussions of the President’s relationship with the three branches of government, and part case study, with days devoted to a range of substantive areas, including immigration, health care, and the environment. Each of these areas of study will draw on expertise here at the law school, with most class sessions run not by Sanne or Kathryn, but rather by others on the faculty. One of the most innovative and important aspects of this course involves the way the students will be assessed. Rather take a final exam, each must draft one of the following: a regulatory comment in an ongoing rulemaking; a citizen petition for rulemaking; or an amicus brief in a pending case. The students decide on their own what position to take in their projects and whether, ultimately, to file the documents they have composed.
The creation of this class makes me proud to be a member of this faculty, and it helps me better to understand the wide range of roles that we can play as professors and members of the legal community. My colleagues’ response to the election has been to design a forward thinking, practically empowering, substantively rich, and ideologically neutral course that will benefit the students—and by extension, the wider community—enormously. It’s a course that, in my mind, should be taught every year, and one that is particularly important during times of presidential transition. I hope others are also finding ways to commit creativity and energy to figure out how best to respond to what we are, in all likelihood, now facing: an extended period of significant legal change.
Wednesday, November 30, 2016
Who Will Be Inaugurated on January 20? (Almost Certainly Donald Trump)
Recent days have seen a surge in efforts to change the 2016 presidential results. Jill Stein is spearheading calls for recounts. Democratic-affiliated electors are joining attempts to convince their Republican-affiliated counterparts to vote faithlessly on December 19. In response to questions about these post-election developments, I thought I would provide a few quick thoughts. The punchline is straightforward: none of this activity is likely to change who will become the 45th president. The following discussion provides more context.
First, for those trying to understand the recounts, state law is what governs. As a result, the rules governing recounts vary, and the answers to legal questions—including when and how to demand a recount and which standards govern the proceedings themselves—depend on whether one is seeking to recount votes in Wisconsin, or Michigan, or Pennsylvania. Despite such variation in the rules, the ultimate outcomes of these recounts are likely to be the same. Because taken either together or individually, they are very unlikely to make a difference in the 2016 presidential race.
By my count, the outcome of the 2016 presidential race changes only if recounts flip the results in all three of these states. This is because Donald Trump’s current elector total is 306, which means he has 36 more than he needs. In other words, Trump would need to lose the votes of 37 electors in order to drop below 270. Wisconsin provides 10, Michigan provides 16, and Pennsylvania provides 20. (There is, of course, the possibility that some of the Trump electors—that is, some of the electors who were selected based on Trump’s statewide victories—will prove to be “faithless,” thereby dropping Trump’s totals under 270 without all three of these states necessarily being flipped. See below for why this is unlikely to occur and why, even if it did occur, it is unlikely to change the result.)
What are the odds that recounts will change the outcomes in all three of these states? Based on historical evidence, the odds are minuscule.
In recount terms, the apparent margins of victory in the 2016 election are huge. As a result, there is not a single modern precedent for even one of these states to experience a reversal. Supporting the conclusion that there is “essentially zero chance” that recounts in these states will reverse Trump’s lead, Josh Douglas observes that, in the last 15 years, a statewide recount has flipped the outcome of an election only three times. Each of these reversals occurred in a really close race. According to FairVote, the first of these unicorns was spotted in 2004, where a recount in Washington State swung the margin by 390 votes, which translated into 0.014% of the votes cast. The second emerged in Vermont in 2006, where the recount swung the margin by 239, or 0.107% of the votes cast. The third could be found in Minnesota in 2008, where the recount swung the margin by 440 votes, or 0.018% of the votes cast. As FairVote concluded, based on its comprehensive analysis of all the recounts (consequential or otherwise) over a ten-year period, recounts tend to “change the margin by insignificant numbers.”
The problem for Stein and others hoping for game-changing recounts? The 2016 presidential vote totals do not turn on insignificant numbers. Current estimates indicate that in Wisconsin, Donald Trump is ahead by over 20,000 votes (equaling approximately 0.8% of the total votes cast); that in Michigan he is ahead by over 10,000 votes (approximately 0.3% of the total); and in Pennsylvania he is ahead by over 65,000 votes (approximately 1.2% of the total). The idea that standard-issue recount proceedings would flip the outcome not only in one of these states, but in all three, seems beyond the realm of possibility. This reality might help to explain why Marc Elias, the lead attorney for the Clinton campaign, has repeatedly insisted that “Hillary Clinton’s campaign didn’t want this recount and doesn’t think it will change anything.”
Some nevertheless have suggested that illegal hacking—rather than innocuous errors—might explain Donald Trump’s leads. Under this theory, the prior recount precedents are not on point. The trouble with this theory is that there appears to be no compelling evidence to back up the hacking claims—and under any of the states’ election laws, unsubstantiated theories about the possibility of hacking (or other forms of fraud) are far from enough to overturn the results. This is, incidentally, a very good thing; the democratic process is threatened by baseless accusations of election malfeasance.
In short, it seems close to certain that recounts in Wisconsin, Michigan, and/or Pennsylvania will fail to change the outcome of the 2016 presidential race. In making this assertion, it’s appropriate to acknowledge that many observers of the 2016 elections placed far too much faith in historical precedent and various forms of statistical analysis when predicting how the election itself would turn out. And it’s important not to do the same here. Still, given the wide margins in these three states (and the fact that a “recount” is, at core, simply a reconsideration and re-tallying of an already analyzed set of ballots), it really is hard to understand how the ultimate outcome of the presidential race possibly could be flipped.
This, finally, leads to the question of whether a separate effort—that is, the effort to convince sufficient electors, among those who were selected based on Trump’s statewide victories, to go rogue and vote for someone other than their candidate—has any chance of changing the result. Again, the magic number is 37; anything less than that, and Trump still has the 270 votes he needs. (And, to be clear, the 37 electors need to come from states that went for Trump; it doesn’t change anything if, for example, a Washington State elector carries through with his loudly proclaimed promise not to vote for Hillary Clinton.) Among the 306 Republican-affiliated electors who have signed up to vote for the Republican candidate, is it possible that over 10 percent of them will refuse, in the face of clear election results, to cast a vote in favor of their state's preferred candidate?
Such a development is not literally impossible, and it is true that at least one such elector (from Texas) already is refusing to vote for Trump. But this outcome again seems exceedingly unlikely. Remember that these electors are not random voters or dispassionate observers; quite to the contrary, these are people selected through Republican party apparatuses to be entrusted to vote on December 19 for the candidate selected by the party. Moreover, refusing to vote for Trump would not be the same as deciding, in a vacuum, which candidate happens to be the elector's preferred choice. Rather, it would require each of these political operatives to disregard the will of their own states’ voters, who just a few weeks ago voted not for Hillary Clinton, and not for some third party candidate, but for Donald Trump. To this end, it is telling that the Trump-averse elector from Texas will not be voting for another candidate on December 19; rather, he has resigned his position as elector, thereby allowing someone who is willing to vote for Donald Trump to replace him.
And here’s the kicker to all this: even if dozens of Republican-affiliated electors were indeed to refuse to vote for Trump, thereby reducing his total to under 270 electoral votes, even that likely would not stop him from taking office. Rather, the 12th Amendment requires that, in the absence of any candidate receiving 270 votes, the decision then go to the House of Representatives. Which will be Republican controlled. And which therefore, in all likelihood, would then vote for (you guessed it): Donald Trump.
What's more, as Ned Foley has pointed out, a bizarre and convoluted statute—the Electoral Count Act of 1887—very well may empower Congress to reject rogue electors’ votes even without the 12th Amendment backstop. Without getting too much into the (deep, disorienting) weeds, the Electoral Count Act seems to empower Congress to choose between competing claims over electors. In the face of Trump challenging votes cast by faithless electors, and with Republicans set to control both the Senate and the House, it seems highly likely that Congress would avail itself of this option.
Assuming (notwithstanding all indications to the contrary) that Congress would not take such a step, it is true that there does exist a route for avoiding a Trump presidency. In this scenario, at least 38 Republican-affiliated electors (note that an additional elector, in this scenario, would be necessary) would need to cast their votes for Hillary Clinton, rather than for Donald Trump, or for some other candidate, or for no one. At that point—again, assuming Congress simply were to accept such an unprecedented and controversial result rather than to resist it via the Electoral Count Act—that would bring Clinton’s electoral vote total to 270, and she would be entitled to the Presidency. A similar outcome would adhere if at least 270 (!) electors collectively broke ranks and voted for what faithless-elector advocates are referring to as a "compromise candidate." It is an understatement to say that neither of these developments seems practically or politically realistic, particularly when their success would require the tacit acquiescence of a Republican-controlled Congress.
I have one final point concerning the idea that sufficient electors might break ranks to change the outcome. In the exceedingly unlikely case that the scenario somehow were to come to pass, it is hard for me to imagine what the reaction might be from the approximately 62 million people who voted for Trump—that is, from the approximately 62 million people who voted for the candidate who seemed to have won the election but, as a result of faithlessness on the part of a handful of political insiders, suddenly lost the presidency. For those who suggest that this development could garner legitimacy—for reasons that purportedly are candidate-neutral—I would invite them to consider what their own reactions might be if the shoe were on the other foot. If an Election Night victory for Hillary Clinton, when set against the faithlessness of a relatively small number of electors, turned into a Donald Trump presidency, would they accept such a result? Do they really predict that Trump voters would?
All of this is not to say that these post-election efforts have no value. To the contrary, they constitute a protest of sorts by those who are deeply concerned about the results of the 2016 presidential election. Still, for various practical, political, and legal reasons, these efforts remain exceedingly unlikely to change which candidate, come late January, will be facing the Chief Justice with one hand in the air.
Friday, November 25, 2016
What the what? Ben Carson to head HUD!
(And the real story of segregation, Detroit, AFFH, and busing)
Far be it for me to try to make rhyme or reason of Trump's cabinet picks(!), but while I wondered and worried last week about who he'd tag for HUD, Ben Carson's name didn't even come to mind. I hoped for someone like Pamela Patenaude or even former Senator Scott Brown, who instead now seems headed to be secretary of Veterans Affairs. And I worried that Trump would, instead, name someone like Robert Astorino, Westchester County Executive who has been long been fighting HUD on fair housing issues in suburban NY. Instead, we have Dr. Ben Carson, whose only experience with fair/affordable housing issues seems to be that he grew up in center-city Detroit. Carson is not a housing expert, but he has made a few discouraging (and fairly incomprehensible) statements on housing policy, for example in his 2015 op-ed in the Washington Times.
In his Washington Times op-ed, Carson calls HUD's AFFH rule "another failed socialist experiment" and draws parallels with mandated busing to de-segregate schools. In his op-ed, Carson says that busing was a failure because (1) it did not improve school integration (the percentage of blacks attending majority black schools stayed essentially the same), and (2) was "unpopular among both blacks and whites." Carson then states that mandated busing led to white flight because anyone with the means to do so moved to the suburbs "to escape mandated busing" which "contributed to a blighted inner cities in which poverty and school segregation became even more concentrated."
What the what?
First of all, I'm pretty sure that Carson means "social experiment" not "socialist experiment" (and yes, Mr. Brain Surgeon, there is a big difference).
As far as Carson's bizarre description of school busing and white flight, let's do a brief history lesson about segregation and busing in Carson's home town, Detroit.
Housing Segregation - and why we have it: Detroit is, and has long been, one of the most racially segregated cities in America (if not THE most segregated). As in other cities, segregation in Detroit was not just a naturally occurring social phenomenon. Rather, it is product of decades of deliberate governmental policies:
- The Federal Housing Administration actually created maps that disallowed lending in minority neighborhoods and then created a handbook to help neighborhoods keep their communities white (ahem..."financeable") by creating racial restrictive covenants.
- At the same time as the federal government was teaching real estate professionals how to best discriminate, it was subsidizing white home-buying in white communities into the suburbs.
- And local governments got into the discrimination game with use-based zoning laws designed to keep poorer populations "in their place" away from the more affluent, white communities.
White flight: Carson's decried "white flight" actually really started when the FHA (remember - the agency that would only lend to whites) established all sorts of policies and procedures to promote homeownership as "The American Dream," and then eased the burden of buying a home in the new, white suburbs. This is what started the trend of massive flight of whites from inner cities. So, yes, white flight was, in fact, caused by a social engineering funded and directed by the federal government, but the social experiment that caused this was the FHA policies of the 1930s-60s, not busing in the 1970s (to which Carson refers). (And since the federal gov't broke it, it has to buy it!)
During Carson's youth in Detroit (and in the decade before he was born), the demographics of the city profoundly shifted as whites fled to, but blacks were kept out of, new suburbs. This all started with post-war industrialization, when black workers migrated into the city, much to the alarm of its white residents. White residents moved into white-only suburbs when blacks moved into the city, this move aided by federal funds with segregation provided by the FHA and local zoning boards. Although it is true that banks, landlords, realtors, and wealthy homeowners had joined in a strong unholy alliance to keep minority households concentrated in high-poverty areas, it was the federal government who legally and financially established and enabled these efforts and for decades turned a blind eye to the horrific inequalities that resulted.
Race Riots and Fair Housing: When Carson was 16 years old, (1967), the Michigan Civil Rights Commission (the “CRC”) determined that 90% of the state’s nonwhite population lived in residentially segregated areas, having been “forced to live apart in urban ghettos.” (Note - This was BEFORE the busing that Carson mentioned in his op-ed.) This was not a separate-but-equal situation: minority neighborhoods had vastly inferior and higher-rent housing. The huge disparity in opportunity and quality of life that this intense segregation and inequity caused is what exploded in the deadly 1967 Detroit race riots (which, surely, Carson remembers since he was there and a teenager at the time). Michigan's fair housing legislation, enacted in 1968 just before the federal Fair Housing Act, was pushed through under the leadership of Governor George Romney (Republican) and attempted to address the huge social consequences of government (and private) housing discrimination.
Fractionalization of Detroit and Busing Schemes: Detroit is cut up into small political subdivisions - the city proper and numerous small white suburban enclaves. This reflected the white-flight development patterns of the 1940s, 50s, and 60s, and was enabled by the home-rule political approach to municipal authority in Michigan. Once the Fair Housing Act and Brown v. Board of Education became the law of the land, the Detroit region was legally required to affirmatively further fair housing AND integrate schools "with all deliberate speed." But if each small suburban enclave was its own school district, there would be no diversity in the schools at all. Furthermore, the predominantly minority areas would have far less resources (property tax revenues) to spend on schools (as well as more municipal fiscal demands). So the Detroit Board of Education passed an integration and decentralization plan that redrew school district boundaries in order to increase school population diversity, but a group of white citizens lobbied to recall the board members and got the Michigan State Legislature to pass legislation voiding the redistricting plan. This legislation also localized school districts and further fractionalized the metro area.
The NAACP tried to fight back by filing a lawsuit claiming that the legislation was unconstitutional because it perpetuated historic segregation. The district judge agreed and struck it down. On appeal, the 6th circuit affirmed that holding and further held that since there was no longer a proposal on the table to redistrict in a way that increased diversity, Detroit metro area would have to engage in busing as the only possible way to fulfill Brown v. Board's mandate of school desegregation. (So the busing plan was NOT put into effect by HUD, Dr. Carson. Rather, it was the only option left to de-segregate schools after the housing de-segregation efforts flopped and local governments used home-rule to defeat school redistricting plans). Not only was this busing plan unpopular (as Carson states), it was eventually rejected as not constitutionally required by the US Supreme Court in Milliken v. Bradley (1974). It was the Supreme Court’s decision in Milliken v. Bradley that accelerated white flight, expanded the inner-city racial ghetto, and spelled the end of school desegregation in Detroit.
FYI: Here's what I've said about busing and housing segregation (in an an upcoming law review article) "Admittedly, mandatory busing schemes are emotionally charged and politically difficult. So perhaps the problem could be better addressed directly, in terms of affirmatively desegregating housing. Instead of attempting to have a regional school desegregation occur through busing, integration of residential housing would achieve desegregated schools in a more natural way. Much like the issue of school segregation, the segregation problem in housing must be considered and addressed at the regional level, not individual by each small political subdivision. Localism in housing control must give way to fairness, sustainability, and fair housing (and fair schooling) constitutional mandates."
And now -- Back to Carson's Housing Op-Ed:
After his false statements and intimations re: busing and white flight, Carson criticizes the Affirmatively Furthering Fair Housing Rule of HUD as relying on a "tortured reading of the Fair Housing laws to empower HUD to “affirmatively promote” fair housing, even in the absence of explicit discrimination." In fact, no tortured reading is required at all - the affirmatively further mandate has been there since 1968, in the original Fair Housing Act.
The Fair Housing Act: The Fair Housing Act (and most state fair housing legislation) actually has two mandates. First, it outlaws overt discrimination based on a protected class (race, but also several other impermissible grounds). Second, it requires that local communities who receive HUD funding "affirmatively further fair housing." This second mandate was acknowledged and promoted by George Romney back when he became the Republican secretary of HUD (although he had to fight Pres. Nixon to do so). Even now, affirmatively furthering fair housing remains not only the letter of the law but somewhat of a bipartisan issue in an era of party politics extraordinare. When some republicans (Sen. Mike Lee from Utah) tried to defund HUD after the most recent rule implementing the 1968 affirmatively furthering mandate, 13 Republicans crossed the aisle to vote down that measure.
Carson, in his op-ed, characterizes the AFFH approach as a brand new approach, but of course that isn't true. This is a return to the actual mandate of the 1968 Act - a revival that took 50 years of struggle to achieve, sadly, because Washington hasn't shown too much concern with the intractability of racially segregated housing in our society - even though it is incredibly harmful.
Housing segregation harms include, but are not limited to:
- de facto school segregation & disparate educational opportunities & outcomes for children of different races
- gap in achievement in school & graduation (high school) and college attendance
- gap in labor force participation rates & earnings
- high single parenthood in minority communities
- racial wealth gap and homeownership gap
- increased rates of infant and adult mortality in minority communities
- lower civi participation in minority communities
- increased incidence of predatory lending (and destabilized capital, housing, and financial markets )
- neighborhood decline, failing urban cores, and distressed neighborhoods w/vacant homes and high crime
- racial tensions and violence
etc. etc. etc.
Detroit is the poster child for the public harm that housing segregation causes. The city spun into an accelerating cycle of decline. Loss of its wealthiest residents and their contributions to the city in which they worked (the city's per capita income fell 20% in the first decade of the 21st century and its population has fell by 25% during that time) ultimately led Detroit to declare bankruptcy in 2013 - the largest municipality to ever do so.
Ben Carson to head HUD
Trump offered Carson the HUD position on Wednesday, and although Carson said that he wanted to ponder the offer over the long weekend, in a Facebook post today (and as reported on FoxNews and confirmed in online media late Thursday evening), it appears that Carson is set to accept the appointment. In his Facebook post (and can I just pause here to note how bizarre it is that we are quoting public figures' policy beliefs based on their social media postings nowadays), Carson states that "I feel that I can make a significant contribution particularly to making our inner cities great for everyone. We have much work to do in strengthening every aspect of our nation and ensuring that both our physical infrastructure and our spiritual infrastructure is solid."
Already many in the media have decried the selection of Carson for HUD. (See this thoroughly articulated New York Times story, this snarky NY Magazine piece, this interesting piece from The Atlantic, and this Slate article suggesting that Carson will "lobotomize" HUD.)
It is hard to know what impact Carson's leadership will have on HUD. As I mentioned, he has zero experience in housing, and his sparse commentary on HUD and housing issues disclose a profound lack of understanding of history and the Fair Housing Act. Based on the cryptic statements in his Facebook post and his negative statements re: placement of affordable housing units in single-family suburbs, it may be that HUD under Carson will focus on repairing and improving inner cities (gentrification with an eye to desegregation, perhaps? We can hope), rather than efforts to integrate poorer minority housing aid recipients into white affluent suburbs.
I nope that Ben Carson will not turn out to be a horrible choice for HUD. After all, he does have a personal background that should allow him to sympathize with and perhaps understand the challenges faced by declining urban cores - and it is hugely important to address inner cities in terms of infrastructure/community decline, rental affordability, and persistent segregation. Maybe his anti-affirmatively furthering fair housing statements in that one op-ed merely are the result of his lack of knowledge of the issue and the Fair Housing Act.
The New York Times article on Carson's appointment helpfully explains (to Carson, perhaps?) that the AFFH Rule actually is not some ill thought-out governmental meddling in local affairs. It states:
"In practice, the rule provides those communities with detailed data on factors like racial demographics, poverty rates, school quality and housing voucher use to help them determine whether lower-income and minority families are isolated from good schools or segregated from opportunity. The rule requires communities to use that information to draft plans to reduce segregation where it exists. Those that habitually defy the requirements risk lose funding from the agency."
Our country is in the grips of a housing affordability crisis. Fifty-year-old fair housing legislation has done little to de-segregate housing in the nation, and racial tensions continue to intensify. At the same time, pockets of the nation (many city centers) are in steep decline. Even though under many Republican presidents, the HUD secretary was a throwaway appointment, Housing and Urban Development is actually a critically important Department in the government. I hope that Dr. Ben Carson is up to the job, I hope he studies and learns about both aspects of fair housing law as well as affordability and revitalization issues with an open mind. And I hope that in the next 4 years we can take a step forward when it comes to housing equity in this country, rather than take two steps back.
Thursday, November 24, 2016
Housing Bubble (Toil & Trouble)
The 2008 Foreclosure Crisis seems like only yesterday. Surely we must still remember the lessons learned from the crash and will not again allow real estate prices to inflate above a sustainable level... right? But here's a little chart that sort of scares me - note that we're at the top of the second peak in this roller coaster ride called the housing market:
Yesterday the FHFA announced an increase to the loan limit for prime loans, with the new maximum home mortgage loan for one-unit properties set at $424,100 for 2017 (more in higher-priced markets). This is the first maximum loan dollar increase since 2006. Unless you follow real estate or are in the market for a large mortgage loan, you may not have recognized the significance of this increase. The Housing and Economic Recovery Act of 2008 prohibited any increase in the loan limit above $417,000 unless and until the average U.S. home price returned to its pre-decline level. That hasn't happened until this year. The FHFA just announced that "that average home prices are now above their level in the third quarter of 2007." I guess we're back, baby.
In a way, it isn't that surprising that housing prices have been growing back toward their record peak levels, particularly in some parts of the country. The government has done its utmost to help us "recover" from the market meltdown. For one thing, the Federal Reserve has aggressively pushed down interest rates for the past several decades - and they keep setting a new record for "how low can you go?" Such extremely low interest rates means very low cost of capital, and cheap capital makes it smart to borrow and stupid to save. Is it any wonder that rational consumers borrow and borrow and borrow, and hardly ever save? (this chart shows interest rates over time - better version of it is here).
Now, some types of borrowing are more available than other types. There were times when anyone with a pulse could get a credit card, and for several years in the run-up to 2008, anyone who owned or wished to own a home could obtain a mortgage loan for nearly the entire sticker price or appraised value of the home. A little not-so-long-ago-history primer: easy mortgage credit fueled a buying and re-fi frenzy for homes that drove up prices, all premised on the idea that real estate values always go up. It couldn't last. It didn't last.
While it has been popular during the past 8 years to blame lack of regulation for the Housing Crisis, I concluded back in 2010 that the low interest rates played a very key role (along with imaginary underwriting) in the out-of-control mortgage lending. Other analysts have agreed (see also here and here). The Economist is similarly skeptical that high housing prices indicate a booming economy, pointing out that "despite efforts to fix the plumbing of the American mortgage market, housing in the United States remains a dangerous menace to the world economy" and explaining that soaring property prices in America are "underpinned by low interest rates."
The "bubble" that we now find ourselves in is different. For one thing, mortgage credit has become more difficult to obtain, due in part to the (somewhat) more attentive FHFA underwriting approaches, the (slightly) more stringent requirements for loans to qualify as prime, and the (marginally helpful) disclosure obligations mandated by the CFPB. But if you can get a home loan, it's cost is still very low because of low interest rates. Cheap capital enables rising prices. Another thing that is arguably different this time around is that the supply of homes has not increased as quickly as previously, and in some parts of the country, shortage of supply may be helping to prop up property sale prices (see CNBC story here).
The Trump win, analysts believe, will lead to multiple increases in these record-low interest rates, policy makers have indicated that this could happen in December 2016, and bank stocks have brightened at this news (after initially falling, Wall Street rallied after Trump's unexpected victory - see story here). Of course, the Fed had previously promised to raise interest rates this year, but that has not really happened (see NY Times story here). If interest rates really do increase (and I tend to think they finally will, see Wall St. J article here), will this cause housing prices to drop in 2017? Would that necessarily be a bad thing?
For more stories re: Housing bubble 2.0, the 2016-17 edition, see here, here, here, here and here. Some of these are major news outlets, others more fringe-y, but they raise issues that those of us who watch the housing market with baited breath should not ignore.
Tuesday, November 15, 2016
Three Neutral Principles for Civil Political Discourse
As the recent election illustrated, Americans disagree foundationally on many substantive issues. I’d like to think though that while there may be profound divisions on core political values, one thing we may be able to agree on is that it would be helpful to our democracy to improve our public discourse about these matters.
But what does it mean to have a truly democratic, and perhaps even productive, public discourse? This aim may seem like a lost cause after over a year of toxic mudslinging, disingenuous character assassination, and an increasing unwillingness to tolerate opposing viewpoints—all of which were amply in evidence from supporters on both sides of the aisle.
I was given some sense of hope on this issue, though, during an incident shortly before the election in which President Obama was interrupted by a Trump-supporting protester during Obama’s speech at a political rally. The crowd immediately began to boo in order to shout down the protester, but Obama pushed back in his defense, and his reasons for doing so, I’ll argue below, may be taken as three core, nonpartisan principles that we may all be able to agree on as baselines for engaging in civil political discourse.
I enumerate these three principles after the break.
“First of all, we live in a country that respects free speech.” That platitude is obvious. But what Obama said before this was more meaningful. His lead-in to this statement was: “You’ve got an older gentleman supporting his candidate. He’s not doing nothing. You don’t have to worry about him.”
“He’s not doing nothing.” The idea that others’ political expression does not harm us should be obvious too (it’s really just a version of the old schoolyard rhyme about sticks and stones not breaking bones), but in modern America, it’s not. Expressing a point of view that others disagree with is increasingly more likely to get you shouted down than heard out. It might even get you suspended on a liberal college campus or beat up at a conservative political rally.
The empirical point behind the informally phrased “He’s not doing nothing” is that the expression of others’ viewpoints are nothing more than what they are: Descriptive claims about another person’s state of mind. Another person’s claim about their own beliefs does not make those beliefs true, and it certainly does not compel us to agree with or even respond to it, or do us any harm.
This attitude is easier to describe than to adopt. Hearing someone express an opinion that you consider wrong or even profoundly harmful can be infuriating, as the level of public discourse in this past election season illustrates. But this is why adopting the “he’s not doing nothing” perspective is so important. The notion that others’ political opinions are nothing more than data indicating their viewpoint (rather than traumatizing or treasonous) not only facilitates core constitutional speech rights, it also enables a psychological freedom from others' expression that makes us free to form our own opinions as well.
Because like it or not, we're a nation that is committed to honoring free speech. This principle means something only if it requires tolerating respectfully even speech with which we profoundly disagree. And that toleration becomes much easier when we regard such speech as nothing more than information about someone else’s state of mind, rather than a threat or a harm being inflicted on us.
“Second of all, it looks like maybe he might have served in our military and we got to respect that. Third of all, he was elderly and we got to respect our elders.” These next two points can be collapsed into one very simple principle: See others generously, including and even especially those with whom you disagree. When this Trump supporter popped up at the rally the other week, the attendees may well have dismissed him as a threatening, unstable crank bent on shouting down the President, possibly even for racist reasons—hence their desire to shout him down in turn.
But these kind of uncharitable assumptions are as baseless as they are unhelpful. Maybe the protester lost his job to outsourcing and was trying to express support for protectionist trade policies that he felt were critical to having a job and being able to support his family. Maybe he was unhappy with the direction of the country under a Democratic administration and expressing his passionate support for going in a different direction.
Seeing the protester in a generous light—an elderly man with possible military service—is a key step in having a decent conversation. Stereotyping political opponents makes them easy to demonize and dismiss them without engaging. Regarding a Trump supporter as a fanatic foaming at the mouth with irrational race-hate makes it easy to conclude that he does not merit respect or deserve to be heard out. But seeing that same person as an older gentleman who fought in Vietnam and cares deeply about the fate of the country yields a different result.
Much the same is true in reverse. An effete urbanite reflexively supporting Obama and Hillary out of a sense of liberal guilt amounts renders the speaker a mere stereotype that can be categorized and ignored with ease. But if you regard the same person as someone who is partaking in a tradition of dissent that dates to the Revolution in the interest of protecting values like racial and social justice that are embedded in our Constitution you’re more likely to take them and their ideas more seriously.
Regardless of political valence, the choice to see someone in a more generous light is thus a prerequisite for having the kind of decent discussion about issues that has a better chance of producing mutual understanding rather than descending into a pointless shouting match.
“Fourth of all, don’t boo. Vote.” At first glance, this one may appear a bit more complicated. “Don’t boo”? Isn’t cheering and booing what people do at rallies? It certainly is, and I don’t think the point is that people should sit quietly and clap only on cue when they are attending these kinds of events. Rather, I think the general idea expressed by this statement goes something like this: If you hear an opinion you disagree with, it’s better to create a positive dialogue that expresses your own point of view rather than spending your efforts attacking the speaker or trying to eliminate their speech from the public sphere.
Because while I said above (and still believe) that others’ opinions need not lead us to want to shut them out or shout them down, democracy also cannot function if people do nothing more than engage in calm observation when they hear ideas they think are wrong or dangerous. The problem is that increasingly the immediate reaction to opposing viewpoints is to personally direct animus or worse toward the speaker. The suggestion of “don’t boo, vote” is that there are more and less effective responses to speech you disagree with. Silencing speech tends to be ineffective and harmful. By contrast, using one’s disagreement as a call to democratic engagement in the interest of your own beliefs, whether that action is the simple act of voting or a deeper commitment to a movement or cause, is the more productive alternative.
Let me be clear about the limits of my claim: I have no idea if Obama was intentionally trying to propound core principles for engaging in civil political discourse in his brief interaction with the protester at the rally, but regardless I think at least a few of those principles (first, you are not harmed by others’ speech; second, see others in a generous light; third, add your voice rather than squelching others’) are immanent in his response.
Finally, I should emphasize that while I think these are constructive principles for civil political discourse, this does not mean they are easy to practice. On the contrary, we’re hardwired to do pretty much the opposite in all of these instances. Hearing opposing viewpoints tends to engage the fight-or-flight response, which helps explain both the rancor of this election and the growing polarization of our nation as people increasingly surround themselves with other like-minded people to avoid the discomfort of regularly facing disagreement.
But nothing truly valuable is easy. And restraining our immediate instincts—tolerating speech we dislike, accepting a President we didn’t vote for—is in many respects what defines democracy, and distinguishes it from its many inferior alternatives. It is this kind of restraint in the interest of the greater good of our country and the maintenance of our system of government that represents the “better angels of our nature” that Lincoln described in his first inaugural address, and that I hope may still prevail even after a dispiritingly ugly election season.
Wednesday, November 09, 2016
The Divided States of America
The election map from last night and the depth of devastation and fear expressed by many people today shows clearly the disparity in opinion that exists in this country with respect to some key and emotionally charged issues. This presidential election provided empirical evidence of how divided we remain as a nation. We are divided urban and rural, rich and poor, black and white, native-born and immigrant, and even male and female. Both Trump and Clinton have given speeches in the last 12 hours that recognize this deep divide and both have asked their followers to assist in bridging it. In Trump's speech, he stated, "Now it’s time for America to bind the wounds of division; have to get together. To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people." These are noble sentiments, and I hope that he is truly committed to "binding the wounds of division." In Clinton's speech, she similarly told her distraught supporters, "We have seen that our nation is more deeply divided than we thought. But I still believe in America, and I always will. And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead." Of course, Clinton did not say that accepting the election result and giving Trump a chance to lead means falling in line with particular policies. She urged people to "never stop believing that fighting for what's right is worth it."
It is high time that we as a nation take a long, hard look at our deep wounds of division and chart a path to healing them. The first step is honestly recognizing the fact we are very, very divided. For every person who thinks "X" on a particular issue, there is another who thinks "not X." Fortunately, we are blessed with an inspired and inspiring Constitution that can preserve liberty and civil rights and establishes a framework for a balanced and checked government. It is abundantly clear why these checks and balances are so important, and it is imperative that we, as professors, lawyers, and citizens, work our hardest to preserve these systemic protections. But we must do even more than that. Lawyers are fundamentally society's problem solvers. And we have a problem of disunity. We each need to figure out a way that we can help the people of the United States live and work and function together as a nation in a mutually respectful way. Perhaps that means a return of more decision-making authority to individual states, as was initially intended by our Founding Fathers. Perhaps that means shoring up the division of powers among the branches of the federal government. It also means working to dismantle structures that create and perpetuate societal divisions in the many contexts in which these occur. Because I write on Fair Housing, making real strides to integrate neighborhoods is something that immediately leaps to my mind, but there are similar inequities and divisions in all areas of the law and our society. Like Clinton, I believe that "we are stronger together." And like Trump, I too want "a better, brighter future" for myself, my family, and my country. Therefore, we have to unite these Divided States.
It is time to do some soul searching and consider how we really can come together and make America not only "great" but unified, effective, respectful, and worthy of respect. Let's take a deep breath, roll up our collective sleeves, and get to work.
Monday, November 07, 2016
Mickey Mouse for President? The Law of Write-In Voting
Many voters this year have expressed dissatisfaction with both major party candidates. My own politically precocious 12-year-old has grilled me about the viability of several third-party candidates (to which questions I replied with Socratic questions of my own until he gave up and did his own research that, incidentally, led to an article in his school paper giving a thumbnail sketch on Clinton, Trump, Johnson, Stein, and McMullin). But even he did not profile the ubiquitous write-in protest vote (for a voter's favorite defeated primary candidate or a voter's mother or, as in one case, a voter's deceased dog). Apparently, a few poll workers in Kansas were instructed to tell voters that "write-in votes don't count," but the actual rule varies by state. It is worth considering the applicable rule before you write in anyone, however, because it very well may be that writing in a random name is, literally, throwing away your vote (meaning, it is actually thrown out). There is a lot of misinformation about this out there, so I did a little bit of research this morning and here's what I came up with (this from a non-election law expert, so please be gentle).States can (and many do) prohibit or limit a voter's ability to write in a candidate on the ballot. Kansas, for example, is one of the states that seems to limit one's ability to vote, restricting your choices to (a) the enumerated candidates or (b) those write-in candidates that have filed with the KS secretary of state an "affidavit of write-in candidacy for the offices of president and vice-president" before "12:00 noon on the 2nd Monday preceding the general election for those offices." For this election, that means that in order for a vote for a particular write-in candidate to be considered (and count) in Kansas, that write-in candidate must have filed this affidavit before October 24th. Kan. Stat. Ann. § 25-305 (West). This statute has been tested and upheld by the 10th circuit on the basis of a state's interest in voter education (Hagelin for President Comm. of Kansas v. Graves, 25 F.3d 956, 960 (10th Cir. 1994)).
Limits on a voter's ability to write-in a candidate may seem unconstitutional to you (and to me), but it has been upheld by the Supreme Court (Burdick v. Takushi, 504 U.S. 428, 441 (1992)). The Supreme Court case upheld Hawai'i's ban on write-ins. Oklahoma's complete ban on write-in votes for presidential and vice-presidential elections was deemed constitutional in Coalition for Free and Open Elections, Prohibition Party v. McElderry, 48 F.3d 493 (10th Cir. 1995). The Supreme Court denied certiorari in that case. Other states have now and in the past completely banned write-ins as well, but the more common approach seems to be to require registration or to state that ballots that are not printed legibly won't be counted (well, duh!).
In Kansas, voters are not completely barred from writing in candidates in a presidential election, but only votes for registered candidates will count. (FYI, Kansans are also barred from writing in to indicate affiliation with a non-enumerated party in their voter registration. This rule was upheld by a federal court in 2011 and affirmed by the 10th circuit. Constitution Party of Kansas v. Biggs, 813 F. Supp. 2d 1274, 1276 (D. Kan. 2011), aff'd sub nom. Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir. 2012)).
People are often confused about write-in rules, particularly since states apparently change them periodically and since they vary widely among jurisdictions. It doesn't help when poll workers are told that "write-ins are illegal," which of course they are not (what, are you going to be fined because you write a candidate in? I can't believe that ever would be the case!).
All this raises a good question that a friend of mine articulated - Why on earth would anyone write in an unregistered candidate at all? Someone who hasn't announced he or she is running for President and who likely will get all of ONE vote (yours)? Well, in cases that have considered the question of legality of write-in bans from the point of view of the voter, rather than the candidate, the right to write-in is equated, once again, to a type of free speech. The idea is, of course, that a vote for "Mickey Mouse" is a protest vote, a "none-of-the-above" vote, and that casting this sort of vote should have some sort of speech-related impact, something beyond staying home on Election Day. This sort of speech could only have any actual effect if write-in protest votes were to be aggregated, tabulated, and announced. If 10% of voters wrote in some random protest name at the polls, say, perhaps that fact in itself could be newsworthy and suggest a high level of dissatisfaction with the process and candidates. If you have a write-in ban or limitation to registered (or real, live) people, however, then you lose the ability to be part of this sort of collaborative, grassroots protest voting speech.
Thus, even though I really, really want to write in Lin Manuel Miranda for President (because how awesome would that be!?), I guess I will have to restrain myself tomorrow.
Happy Voting, everyone!
Thursday, November 03, 2016
10th Circuit: Kansas' Documentary Proof of Citizenship Voter Registration Requirement Will Not Be Enforced
In Kansas, voters cannot simply wake up on election day and decide to vote. There is no spur-of-the moment voting (and no mail-in ballots other than absentees). Voting in Kansas requires forethought and planning through advance registration, and it takes showing up at the polls with a valid ID and having one's photo and signature confirmed to be a match to those on the registration -- but at least, thanks to the 10th Circuit's opinion on October 21st, it will not take documentary evidence of U.S. citizenship.
The terms of Kansas' Secure and Fair Elections (SAFE) Act requires that "an applicant shall not be registered [to vote] until the applicant has provided satisfactory evidence of United States citizenship" according to enumerated documentation, such as a U.S. passport or a birth certificate. Earlier this year, the League of Women Voters of Kansas, with the help of the ACLU, challenged this law as running afoul of the the National Voter Registration Act. The District of Kansas granted a preliminary injunction against enforcement of the policy back in May, and this allowed 18,000 Kansans to vote in the state's presidential primary on August 2nd. On appeal, the 10th Circuit, through Judge Jerome Holmes, held that the Kansas proof of citizenship voter registration law violated the NVRA. The NVRA protects American voters' right to vote with only supplying the "minimum amount of information necessary." The 10th Circuit found that the minimum amount necessary does not include proof of citizenship. The court's opinion, issued on October 21, 2016, addressed the preliminary injunction only, not the merits of the case (although, of course, likelihood of success on the merits is a component of preliminary injunction oversight). (AP story on the case is here).
The court held that the Kansas government had been unable to show any significant problems with non-citizens attempting to vote, and that "it cannot be that, while intending to create a simplified form of registration for federal elections, Congress adopted such a malleable statutory principle (i.e., minimum information) that the states could effectively become the final arbiters of what is required under the NVRA by the simple expedient of claiming that one noncitizen managed to register to vote."
The 10th Circuit found adequate threat of irreparable harm (if the SAFE Act was enforced) because "over 18,000 Kansans stood to lose the right to vote in the coming general elections—elections that are less than one month away." Of course, these 18,000 Kansas were those who had already registered to vote using the "federal form" rather than following the statutorily required proof of citizenship method. Who knows how many people were dissuaded by the SAFE Act requirements from even attempting to register. The October 21st ruling came too late for anyone not already registered to vote: The Kansas voter registration deadline for the November 8th election was on October 18th.
The state voter information site now contains a statement (at the very bottom) explaining that "due to recent court rulings, if you have applied to register to vote at a Kansas Division of Motor Vehicles office or if you have applied to register to vote using the “Federal Form” voter registration application (as opposed to the standard ‘state form’) and have not yet provided proof of citizenship, you are registered to vote for the November 8, 2016, general election. Your name will appear on the poll book for your voting location and you will be given a standard ballot." The online voter registration site, however, contains no reference to the 10th Circuit opinion (but, of course, it is too late for anyone not registered to become able to vote in Kansas anyway).
(Toto, I think we're not in Washington state anymore!)
For more on this case and voting in Kansas, see here (local news story about the ruling), here (news story about one man's struggle to vote), and here (criticizing the 10th Circuit for "flipping state powers on its head and bastardizing a statute").
How I Voted in Washington State
Every election, we hear stories about the crazy complications facing both voters and election administrators. Long lines. Voter intimidation. Poll-worker confusion. Ballot selfies. Here’s a story that’s much less exciting. It’s the story of how I voted in Washington State.
Around October 24, I received my ballot in the mail. It’s like an absentee ballot. But I didn’t receive this ballot because I had requested one; to the contrary, vote-by-mail is the default here in Washington. My own voting process began with a hunt for that most precious of spaces in my home (that is, a space prominent enough to be helpful, but sufficiently out-of-the-way for the kids not to have commandeered it), where I set the ballot aside until I had an evening free. Then, with a touch of dramatic flair, I spread my tools of democracy across the dining room table—my ballot, my voting guide, my laptop, and my chocolate—and I filled out the ballot as best I could, making notes on where I needed more information. (People voting in similarly initiative-happy states will understand.) Over the next few days, I took the time I needed to gather the missing information—including through civic-minded discussion with family and friends—and eventually completed the ballot. I signed it, sealed it, and by the end of last week, found a stamp for it and put it in the mail. That was the end of the matter until yesterday, when I decided to confirm that everything was fine. To that end, I Googled “confirm vote received washington state.” This slapdash search brought me to a website where I was able to type in my basic information and immediately receive an update on my ballot. Here’s the message I received:
- We have received your ballot, your signature has been verified, and your ballot will be counted.
- Thank you for voting.
You’re welcome! All done, so pleasant and straightforward, a week before the election. I encountered no lines, no intimidation, no poll-worker confusion, and no selfies. (Notwithstanding the fact that our Secretary of State has assured us that, in Washington, ballot selfies are “not directly prohibited.”)
Are there potential problems with voting in this way? Of course; no system is perfect. Whenever a jurisdiction creates the possibility that its voters won’t vote in private (i.e., whenever voting isn’t necessarily done in secret), there’s an increased chance of both vote buying and vote coercion. (To understand why, imagine what you’d need in order to effectively buy or coerce a vote. At the top of the list: some way of verifying that your co-conspirators/victims actually voted the way you wanted them to.) Moreover, while voter fraud is exceedingly rare in this country, the voter fraud that does exist is more likely to occur via absentee ballot than by in-person voting. So all else being equal, mail-in states would seem to have an increased susceptibility to fraudulent voting. An additional problem with mail-in ballots relates to voters (for example, people who are homeless) who have difficulty voting by mail—though this is less of a structural concern, given that there are ways for a mail-in jurisdiction to accommodate such individuals. The more intractable issues relate to the potential for voter fraud, vote coercion, and vote buying.
Yet Washington State does not suffer from widespread problems relating to fraud, coercion, or vote buying. (Before anyone posts a link purporting to contradict this assertion, please confirm that the link in question directs to a reliable source actually supporting a different conclusion; there’s a lot of misdirection out there.) And what Washington definitely does not suffer from is all the problems associated with trying to get millions of people to go to the same limited number of locations to do the same thing at more-or-less the same time—i.e., all the problems associated with in-person voting. From my perspective, mail-in ballots are great for voters. Unless or until I learn that the problems theoretically associated with this form of voting (including the aforementioned buying, coercing, and defrauding) actually materialize, I will continue to support the practice, and be grateful that my state has adopted it.
Wednesday, November 02, 2016
But first, let me take a ballot selfie!
Social Media has been playing a huge (or is that “yuuuge”?) role in Election 2016: Twitter attacks, Facebook op-eds, youtube campaign videos, and now, Instagram and Snapchat ballot selfies. And although both candidates and constituents have and continue to use social media to express themselves, state law in nearly half of the country criminalizes this last type of “Freedom of Speech” – namely, taking a photograph of your completed ballot and posting it online.
Purported Risk of "Vote Buying" Schemes
Prevention of vote buying is the cited rationale behind ballot selfie bans. The concept being that exhibiting a photograph of a completed ballot would be the only method to cash-in on an offer to sell one's vote. I don't find this reasoning very compelling. It seems that if someone really wanted to take a photograph of a completed ballot for a secret reason such as an illegal vote-buying transaction, it would be ridiculously easy to do so, even with the “no photographing” rule on the books. Cameras aren’t the awkward and obvious contraptions that they were in prior generations. Cameras today can be part of your phone, your watch, and, who knows, maybe even disguised as a flash drive or pen (the possibilities are limitless). Furthermore, if the vote being bought was cast as a mail-in ballot, as are absentee votes and basically all voting in the Pacific Northwest, then ballot selfies are even easier to do. The one thing that you would probably not do - if you were taking a photograph simply in order to cash in on an illegal vote-buying scheme - would be to post that incriminating evidence on social media.
Freedom of Speech (er... Freedom to Snap & Post)
Even if there is a remote possibility that such photographs could be part of nefarious vote-purchasing schemes, ballot selfie bans also raise serious free-speech issues, and upon examination, federal courts in two jurisdictions have already declared such bans unconstitutional. An Indiana law that banned ballot selfies was struck down last year when Federal Judge Sarah Evans Barker of the state's Southern District found that the law could not survive strict scrutiny because the state "entirely failed to identify any such problem in Indiana relating to or evidencing vote buying, voter fraud, voter coercion, involuntary ballot disclosures, or an existing threat to the integrity of the electoral process" (Indiana Civil Liberties Union v. Indiana Sec'y of State, 2015 WL 12030168). On September 28, 2016, the 1st Circuit ruled that a similar ban in New Hampshire also impermissibly impinged on freedom of speech. The 1st Circuit went so far as to call ballot selfie bans “antithetical to democratic values.” (Rideout v. Gardner, 2016 WL 5403593).
On Friday (October 28, 2016), the 6th Circuit bucked the trend by reversing the district court-issued injunction that prevented the enforcement of Michigan’s ballot selfie ban with respect to the coming election. (Crookston v. Johnson, 2016 WL 6311623.) Judge Jeffrey Sutton, writing for a divided court, held that although the “interesting First Amendment issues” would eventually be adjudicated, for the purposes of November 8th, the Michigan ban on ballot selfies would stand. The Michigan ballot selfie ban operates to disqualify a ballot that has been photographed. The plaintiff in this case, Joel Crookston, actually had his vote invalidated in 2012 after he snapped and posted a photo of his completed ballot. The majority of the 6th Circuit seemed insufficiently concerned that Crookston’s free speech would be impermissibly curtailed in the coming week by virtue of a ballot selfie ban. “A picture may be worth a thousand words,” wrote the court, “but social media users can (and do) post thousands of words about whom they vote for and why.” Although admitting that “lingering issues remain” with respect to the First Amendment effects of the selfie ban, the 6th Circuit concluded that “there will be time for due deliberation” after the election.
Chief Judge Cole dissented, holding that because the penalty for taking and posting a ballot selfie was nullification of the vote, the majority had effectively caused voters to choose “between their freedom of expression and their right to vote.” Cole explained that restrictions on speech must serve a significant government interest and be narrowly tailored, and the Michigan ballot selfie ban fails to meet either requirement. Judge Cole was not convinced by the three alleged “important government interests,” namely (1) discouraging vote-buying and coercion,” (2) ensuring “that the polling place is a sanctuary for all,” and (3) preventing delays. “While all of these may be government interests in the abstract, there is disproportionality between the interests stated and the ballot selfie prohibition created by these laws and instructions,” wrote Judge Cole. Yesterday (October 31, 2016), citing the dissent, Crookston’s attorney filed an emergency motion for rehearing in the hopes that the issue can, in fact be definitively addressed prior to the election.
Ballot Selfie Bans - A Constitutional Open Question
The law regarding ballot selfie bans is inconsistent and in flux. On October 23, the Associated Press reported on the state of the law, state-by-state, but this listing is already outdated because of the recent Michigan ruling. A brief glimpse at the AP's 50-state survey shows how widely varying state laws on this issue. Some states (like Hawaii, Utah, and Nebraska) have laws specifically protecting a voter’s right to take a ballot selfie. Many states neither prohibit nor explicitly allow photographs of ballots. Some states have recently repealed laws that prohibited ballot selfies (for example, California – although this change will not take effect until January), and similar legislative measures are pending in other jurisdictions (for example, New Jersey). A few states allow photographs of mail-in ballots, but do not allow photographs at polling places in general (for example, Iowa, Maryland, Texas, and Tennessee).
At least 18 states, however, explicitly outlaw the practice of photographing and showing one’s own ballot, whether at the polling place or (for a mail-in ballot) at home. Although a few state spokesmen (Alaka, Massachusetts) have stated that a state law ban on ballot selfies could not be practically enforced, other states lay out clear penalties for violation of the rule. In Michigan, a ballot selfie will lead to invalidation of the ballot. In several states, a ballot selfie is a misdemeanor that could carry a fine. In Illinois, knowingly showing your completed ballot to another person is a felony that carries a prison sentence of one to three years.
Infographic from NBC News:
It will be interesting to see if a national consensus develops over the next several months as the ACLU, Snapchat, and various individuals continue to challenge these laws. The next expected opinion pertains to the New York law, and Judge Castel (S.D.N.Y.) says he’ll issue his opinion by the end of this week.
Meanwhile, the ACLU just sued in Northern California seeking a restraining order that would prohibit enforcement of the selfie ban law, even though a bill repealing that ban has already been signed into law. The ACLU points out, however, that the new law’s effective date in early 2017 comes too late to matter for Election 2016. “This is an incredibly contentious election. Thousands of our members want to engage in this core political speech, and not just show people how they are voting but try to encourage others to vote the same way," Michael Risher, an attorney with the ACLU of Northern California, said in a statement. "On November 9, it will be too late for them to do that.” Risher called ballot selfies "core political speech at the heart of the First Amendment," however the sought-after injunction seems more symbolic than pragmatic. “In its 125-year history, California's ban on sharing one's marked ballot has not been enforced.” The California hearing is set for November 2nd. On that same date a thousand miles to the east, another federal judge will hear near-identical arguments in a federal case challenging the Colorado ballot selfie ban.
Outdated or Necessary Protections?
Are ballot photograph bans anachronisms? Or is do these laws serve a valid purpose? Colorado Deputy Secretary of State Suzanne Staiert argues that selfie bans are still needed. “We believe the current law protects the integrity of the election and protects voters from intimidation or inducement,” said Staiert. “In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.”
Another argument against repealing the bans is that prohibitions on ballot selfies do not really stifle free speech in any substantive way. The lawyer representing New Hampshire in the 1st Circuit case argued that that under that state’s law (pre-invalidation), “You're free to go out into the community and scream at the top of your lungs how you voted and who you support in the election. You just can't use your marked ballot to do so."
I suppose that those who are concerned with the practice of taking and posting ballot selfies worry about the social pressure involved and are concerned that the expectation of proving your vote publicly can create peer pressure to vote a particular way. If ballot selfies become socially expected, it could remove the protection from retribution (social as well as political) that complete anonymity offers. For Snapchat-happy millenials, the social pressure to post a ballot might make it difficult to vote one’s conscience rather than what is most acceptable in one’s social circle. I’m not too worried about vote buying being enabled by photos of ballots posted on social media, but perhaps there are other legitimate reasons to step back from free speech in the name of protecting the right to anonymously cast one’s vote.
Friday, October 28, 2016
WARNING: THIS AREA IS BEING PATROLLED BY THE NATIONAL BALLOT SECURITY TASK FORCE
In 1981, Republican organizations enlisted the help of supporters, including off-duty police officers, to patrol urban areas in New Jersey. The purpose of these efforts, according to critics, was to intimidate prospective voters. Members of the so-called “National Ballot Security Task Force” wore official-looking armbands, posted large “WARNING” signs directed at voters (which included the language I’ve used as the subject header for this post), and in some cases openly displayed firearms. Their activities prompted a lawsuit. To settle the claims, the Republican National Committee (RNC) entered into a consent decree (still in effect) whereby it agreed to, among other things, refrain from “undertaking any ballot security activities . . . where the racial or ethnic composition of such districts is a factor in the decision to conduct . . . such activities . . . and where a purpose or significant effect of such activities is to deter qualified voters from voting.”
After the 1986 elections in Louisiana, Republicans facilitated another voter-challenge program. As revealed in discovery, one Republican director predicted that the effort would “eliminate at least 60,000–80,000 folks from the rolls” and “[i]f it’s a close race . . . this could keep the black vote down considerably.” This led to a modification of the consent decree, which included the addition of a preclearance provision. More specifically, the decree was altered to prohibit the RNC from engaging in any “ballot security activities” unless it first received permission from a court. “Ballot security activities” were defined to include “any program aimed at combating voter fraud by preventing potential voters from . . . casting a ballot.”
In 1990, the court found that the RNC had violated the consent decree (based on a failure adequately to educate state parties, in matters related to alleged attempts to intimidate voters in North Carolina). In 2009, the court again modified the consent decree. Among the 2009 changes was an expiration date: absent any further violation, the decree would terminate on December 1, 2017. All of which brings us to today.
Donald Trump has been imploring his supporters to patrol urban areas. (“Watch Philadelphia. Watch St. Louis. Watch Chicago, watch Chicago. Watch so many other places.”) He’s been asking them to engage in this work in order to (to use the phrasing of the consent decree) “combat voter fraud by preventing potential voters from . . . casting a ballot.” (“So important that you watch other communities, because we don't want this election stolen from us.”) To take one (hopefully extreme) anecdote from the Boston Globe, one Trump supporter has described his reaction as follows:
“Trump said to watch your precincts. I’m going to go, for sure . . . . I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American . . . . I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”
In response, the RNC is back in court, with the Democratic National Committee (DNC) accusing it of violating the consent decree. As a result of this alleged violation, the DNC argues, the RNC should be held in contempt; the court should issue relief to ensure enforcement of the decree; and it should extend the decree for another eight years.
I have a few reactions. First, the DNC appears to have a strong claim here. Of course, one expects such a reaction after having only read the briefing from one party. (I have not yet located a responsive filing by the RNC.) The biggest obstacle for the DNC may be convincing the court that the activities of individuals (such as Donald Trump and his supporters) can be attributed to the RNC. Yet the DNC’s filing already chronicles evidence in support of such an argument, and in the 1990 litigation discussed above, a District Court concluded that the RNC had violated the decree not through its own voter-directed activities, but rather by failing to provide adequate guidance to local parties about the prohibitions. (This 1990 precedent may help to explain why the RNC emailed its members last week insisting that “[a]dherence to the Consent Decree is of the utmost importance” and that anyone engaging in “‘ballot security’ activities” would be doing so “not [as] an agent of the RNC.”) This all leads to the second observation, which is that one legal response by the RNC might be to argue that Donald Trump is not sufficiently representative of the RNC to constitute its “agent” for purposes of the decree. That legal strategy may or may not have potential (it depends on, among other things, how the RNC articulates this argument and how much proof the party can produce), but recent efforts to distance itself from its presidential candidate have had troubling political consequences for the party.
Finally, it is interesting that the consent decree includes a preclearance provision. So did Section 5 of the Voting Rights Act, which the Supreme Court (effectively) invalidated in 2013. Preclearance is a profoundly effective mechanism to counteract abusive forms of election administration or activity. This is because while elections keep happening, whether or not litigation is unfolding (and by extension, whether or not that litigation eventually will confirm the existence of illegal or unconstitutional activity), preclearance keeps the status quo in place. It also is effective because it tends to be easier for plaintiffs to prove a failure to receive preclearance than to prove a violation of the relevant substantive standards.
It will be interesting to see how the District Court in New Jersey responds. Will it take the approach of, for example, a recent decision by the Court of Appeals for the Fourth Circuit, which seemed eager to interpret the controlling law in a manner that protects voters against problematic efforts to combat “voter fraud”? Or will it follow an approach more similar to the Supreme Court as of late (at least, prior to the passing of Justice Scalia), which seemingly has been reluctant to interpret the law in a manner that tends to favor such protections? In my view, the history surrounding the consent decree—and the history of voting rights more generally—suggests that the former tends to be the better approach. It is true that, in the words of Chief Justice Roberts, “history did not end in 1965.” But neither did activities that have the very real potential to suppress votes.
Wednesday, October 19, 2016
End of the Filibuster?
In a few weeks, Democrats might manage to secure both the presidency and control of the Senate. If they do, I predict that the Senate will change its rules to allow Supreme Court nominees to be confirmed without the possibility of a filibuster – much like the Senate moved to do in 2013, when it voted to end the ability to filibuster in response to all other judicial- and executive-branch nominees. My prediction assumes that the Democrats (if they win) would prefer to take this historically significant step rather than attempt to reach bipartisan compromise over the next Supreme Court confirmation. A few different factors combine to support this conclusion. These include the precedent the Senate set in 2013; the Republicans’ ongoing refusal to consider Judge Garland’s nomination; and recent statements, such as those made by Senators John McCain and Mike Lee, suggesting that Republicans will not vote to confirm any Supreme Court candidate nominated by Hillary Clinton. (Senator McCain did attempt to walk this statement back, but that doesn’t change my assessment of how Democrats are likely to respond.) In light of these developments, which both reflect and contribute to the highly partisan political climate we’re now experiencing, I would be very surprised if the Democrats were willing to allow Republicans even the option of continuing to block a replacement for Justice Scalia. And while it's possible that, in response to a major Democratic victory, the Republicans would change tack and quickly confirm Judge Garland, new openings on the Court very well may arise between now and January 2021.
If the Democrats were to take this step, they would have the ability to appoint a Supreme Court Justice knowing that they need no support whatsoever from the opposition party. I cannot think of a precedent for this. Even contested confirmation votes (such as Justice Thomas’s vote, in 1991, which had 11 Democrats voting in favor of confirmation, or Justice Sotomayor’s vote, in 2009, which had nine Republicans voting in favor of confirmation) have included some bipartisan backing. And in most of those cases, the opposition party also had the option of resorting to a party-line filibuster. There may be an exception to this unbroken tradition of bipartisan support for successful Supreme Court nominees, but I have yet to find it. Come January 2017, if the Democrats win big, I predict this tradition will end.
This leads to a host of questions. Among them, how would such a development affect what the President might be looking for in a candidate? Would the President be willing to consider, for example, a newly minted lawyer, straight out of law school, statistically likely to serve for the next half-century? (Surely, that’s a step too far – though Justice Story, as the youngest of those joining the Court, was confirmed as a fresh-faced 32-year-old.) More realistically, might the candidate have more of a paper trail than otherwise? Be more ideologically driven?
I also wonder how a razor-thin vote, on party lines and without the possibility of a filibuster, might affect the reception of a newly appointed Justice. Given the Court’s tradition of collegiality, the other members of the Court are likely to be just as welcoming and respectful to such an addition as to any other. But what effects might such an appointment (or set of appointments) have on the legitimacy of the Supreme Court as a whole?
A third set of filibuster-related questions looks beyond the Supreme Court to what might happen if the Democrats also were to take control of the House. (Such an electoral outcome appears unlikely but not impossible.) In that circumstance, would the Senate vote to eliminate the last source of power for the filibuster – namely, its ability to require a Senate supermajority to enact legislation? I think the Senate is somewhat less likely to take this step than it is to change the filibuster rules relating to Supreme Court confirmations, but given the current polling in the House races, it’s something I haven’t spent as much time considering.
By contrast, I have been thinking quite a bit about the various questions surrounding the filibuster and Supreme Court appointments. Because I do think there’s a decent chance we'll soon see a landmark change in how this process works.
Tuesday, October 11, 2016
In Defense of Early Voting
Coming from a state like Washington, where almost all voting is done by absentee ballot (and everyone has the option of voting in person, if desired, starting in late October), I may be favorably predisposed toward early voting. But I confess that I don’t entirely understand the concerns over the practice—and given the critical function that early voting serves, I think it warrants a robust defense.
The objections to early voting often center on the possibility that events happening in a narrow window (post-vote, pre-Election Day) will cause early voters to regret their decisions. There are two reasons why I have trouble understanding these objections. First, November 8 is the date we have set for the end of voting because a date needs to be set—not because events freeze in time at that point. Imagine terrible news emerging about a winning candidate on the day after Election Day. That news very well might cause voters to change their minds about the candidate they had selected and wish they had voted otherwise. But no one would suggest that we therefore re-open voting. Why is this concern over buyer’s remorse so much greater if the news emerges prior to Election Day? To me, it’s the same problem, with just a slightly increased chance that it will affect any given voter.
That said, the calculus is, indeed, different if the nominee withdraws (through death or otherwise) prior to Election Day. In that case, early voters could effectively be disenfranchised in a way that does not have a precise post-Election Day analogue. But this gets to the second point. Most of the concerns over early voting seem to stem from a desire to protect early voters. But no one is required to vote early. It is simply an option given to those who are (in my mind) fortunate enough to have the option. While some have questioned whether voters are able to understand the risks when they make the decision to vote before Election Day, this strikes me as a debater’s point: while surely this sometimes is true (that is, surely it is true that people sometimes vote early without considering the possibility that they would want to change their minds before Election Day), it’s hard for me to imagine that an information deficit of this sort really has much an effect on how or when people vote.
There are other criticisms of early voting—for example, the idea that it may make it harder for down-ballot candidates to challenge incumbents—that are not focused on the rights of individual voters, but rather on how the design of the election tends to affect outcomes. There are still other criticisms focused on abstract notions about, for example, how a “single Election Day creates a focal point that gives solemnity and relevance to the state of popular opinion at a particular moment in time.” But for most critics of early voting, these more abstract arguments do not appear to be central to their concerns. (And if they are, then the debate needs to shift, given that it is by no means settled that the nature of democracy should be defined in a given way or that certain electoral outcomes are better or worse than others.) Rather, most of the discussion about early voting is, as noted, about protecting the voters.
And this, for me, is precisely why early voting needs to be defended. Early voting is what protects voters. It allows voters—particularly those without the privilege of adequate flexibility in their schedules—greater access to the ballot. It also helps those voting on Election Day by shortening the length of polling place lines and reducing the burden on officials administering the elections. It assists all voters by facilitating the earlier identification and correction of errors. (These advantages, among others, are discussed in this report by the Brennan Center.) There’s a reason why so many jurisdictions, voters, and election experts are strongly in favor of the practice.
As for me, I mentioned I’m from Washington State, where virtually no one walks into a polling place on Election Day. Most of us receive our absentee ballot early, fill it out, then drop it in the mail when we have the chance. Most of the votes I’ve cast in my life have been through this same system. That being the case, it really does strike me as strange, and quite problematic, to require voters—who may have any number of commitments and complications that happen to fall on Election Day—to physically appear at a certain time, at a certain place, in order to access the ballot. And despite ample precedent across the country for long polling place lines, I continue to be shocked, and appalled, that Election Day voters are at times required to wait in line for hours in order to exercise their right to vote. Early voting directly responds to these problems, and, in so doing, it does a great deal to protect voters. Even as extraordinary events unfold in an extraordinary election, we should not lose sight of this basic fact.
Sunday, October 02, 2016
Newby and the Duty to Defend Indepedent Agencies and Commissions in Court
I am delighted to have the opportunity to participate in the Prawfsblawg election symposium! For my first contribution, I want to discuss an important issue implicated by a recent election-related case that extends far beyond election law.
In League of Women Voters of the United States v. Newby, the D.C. Circuit (in a 2-1 ruling) overturned the decision of the U.S. Election Assistance Commission's ("EAC") Executive Director, Brian Newby, to revise the state-specific instructions accompanying the federal voter registration form. The revisions would have required applicants from Georgia, Kansas, and Alabama to provide documentary proof of citizenship, such as a copy of a birth certificate, passport, or naturalization papers, to use the federal form to register to vote. Those states had requested changes to the instructions because their laws limit the right to vote to U.S. citizens and generally require people to provide such proof of citizenship to register.
I will discuss the merits of the D.C. Circuit's ruling--with which I disagree--in a separate post later this week. Here, I want to discuss a remarkable aspect of the case: the Obama Administration's Justice Department ("DOJ") completely refused to defend Newby's actions in court. Although DOJ purported to represent both the Commission -- which is an independent, bipartisan agency -- and Newby in his official capacity and was filing briefs on behalf of both parties, it expressly disavowed the legality of Newby's actions and joined in the plaintiffs' request for a preliminary injunction to prevent the changes to the instructions he approved on the EAC's behalf from taking effect.
It's not as if the Commission itself subsequently took any action to disapprove or nullify Newby's actions. To the contrary, at least one of the three subsequently appointed Commissioners agreed with his decision to update the instructions. Nevertheless, despite the fact that nonfrivolous, colorable arguments could be made in defense of Newby's actions--indeed, some strong arguments may be made in support of them--DOJ completely refused to assert them in the briefs it filed for Newby and the Commission. It sought to nullify an official final action of an independent agency without any adversarial presentation of the issues, presentation of contrary authorities, or consideration of alternate remedies.
The district court allowed Kansas Secretary of State Kris Kobach and the Public Interest Legal Foundation to intervene to defend the revised instructions. But DOJ's actions nevertheless remain troubling. As an initial matter, there is something disturbing about allowing DOJ to file briefs on someone's behalf--even if they are party to a case solely in an "official capacity"--without that person's consent, especially when those briefs expressly advocate against that person's legal interests and affirmatively seek relief against that person.
Putting aside that issue (which arises largely as a function of which defendants a plaintiff chooses to name), DOJ's authority to refuse to defend against federal lawsuits is perhaps at its apex with regard to purely executive action by executive agencies under the current administration. If the President or his delegates determine that a member of the Executive Branch engaged in wrongdoing, the Government surely is not required to take that person's side and defend him or her. This power is likely just as broad with regard to executive actions that occurred in earlier administrations, though special care must be taken to ensure that Presidents and agency heads do not use essentially collusive litigation with ideologically aligned groups to nullify the actions of their predecessors when they would be unable to do so through the usual legislative or administrative process. See generally Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637 (2014).
More complex problems arise when DOJ is required to defend the legal interests of entities outside the Executive Branch, which may conflict with those of the President. For example, Congress may enact laws that the President believes are unconstitutional, particularly on the grounds that they infringe upon purported Executive prerogatives. This summer, in Helman v. Department of Veterans Affairs, Attorney General Loretta Lynch notified the Speaker of the House and the U.S. Court of Appeals for the Federal Circuit that DOJ would not defend the constitutionality of provisions of the Veterans Access, Choice, and Accountability Act ("VACAA") that Congress had enacted two years earlier to limit appellate rights of senior career executives who are fired from the Department of Veterans Affairs. (Full disclosure: I represent a coalition of 12 military and veterans groups, including the VFW, AMVETS, Reserve Officers Association, and Marine Corps League that were permitted to intervene to defend the law's validity and advocate more narrowly tailored remedies for any constitutional concerns that may exist). In cases where DOJ refuses to defend a statute's validity out of concern for the President's Executive power, it is not really representing the interests of the Government as a whole, but rather the Executive Branch in particular, potentially at the expense of the independent legal interests and prerogatives of the Legislative Branch.
Cases such as Newby present similar concerns. A President may disagree with the desirability, legality, or even constitutionality of an independent agency's or commission's actions or determinations. If the President can undermine or even nullify those actions by simply preventing DOJ from defending them in court, then the agency or commission is independent in name only. To be truly independent, an entity must have independent litigating authority. While DOJ has tremendous litigation experiences and resources for an independent agency or commission to call upon if it so chooses, it should not be compelled to be represented in court by attorneys acting under an institutional conflict of interest. One solution is to allow the entity to either represent itself or retain outside counsel of its choice. Another possibility is to be flexible in allowing outside intervention and applying Article III's rules concerning standing. Finally, Congress could authorize the creation of a small entity, akin to either an Office of Independent Counsel or a public defender's office, to represent the interests of governmental agencies or officials outside the Executive Branch whose legal (or potentially even political) interests clash with those of the President. In any event, if DOJ is going to undertake to represent the Government or an independent agency in a case, it reasonably should be expected to present the court with colorable, nonfrivolous arguments in favor of congressional or independent agency actions or enactments.
Friday, September 30, 2016
How Does an 8-Member Court Decide Bush v. Gore?
Thanks to Howard for organizing this discussion about the upcoming election. I’m excited for the conversation.
As if this particular election cycle needed more complications, a massive obstacle faces courts and litigants (and, by extension, everyone else): the Supreme Court remains shorthanded. In a world of unanimity, this wouldn’t pose too many problems. But in election law, where opinions are lengthy and consensus is fleeting, you’re lucky if you get a majority opinion, much less anything that garners the support of more than five justices. (See, for example, the many messy splits in the Court’s landmark decisions in this area.)
As a result of these deep fractures, the Supreme Court’s response to the impending election might be summed up as: paralysis. An illustration emerges from North Carolina, where plaintiffs allege that the state enacted voting restrictions with racially discriminatory intent. In an opinion issued two months ago, the Court of Appeals for the Fourth Circuit agreed—and in an effort to stay the mandate, the defendants filed an emergency application with the Supreme Court. This is an important case, with considerable practical and legal implications. The Supreme Court’s response? It needed only three sentences to tell us the single thing it could agree on: right now, it can’t count to five.It is, of course, not unusual for the Supreme Court to dispose summarily of emergency applications. But usually that is because at least five Justices agree that such treatment is warranted. Cases like the one from North Carolina, by contrast, are now turning on a fundamentally different calculation: will the Justices’ 4-4 split once again preclude a decision that could even possibly change the status quo? This problem—somewhat obscured by the posture of the North Carolina case, which was presented to the Supreme Court as a stay application—becomes even clearer once the Supreme Court has granted cert, which only requires four Justices. A petitioner very well might have its petition granted and its argument heard, but if all it can muster is a tied vote, it will never get anything it’s asking for.
This problem already has knocked the wind out of multiple cases; the last Term was defined “as much by what the Court did not decide as what it did.” Given how fractious the Supreme Court has been in the election-law context, the problem of the 4-4 split is likely to dominate this area with particular potency.
There are several ways the Supreme Court might respond to such a problem. It might attempt to minimize the appearance of paralysis by refusing to entertain cases on discretionary review and by declining to note dissents when summarily disposing of others. As Will Baude has explained, these sorts of orders reveal very little about the Court’s inner workings, including with respect to each Justice’s assessments of the merits. Alternatively, the Court might dispose of such cases through enigmatic, compromise opinions that accomplish little more than a remand. This is what the Supreme Court appeared to do a few months ago, for example, in Spokeo v. Robins, a terrifically impenetrable case on standing that initially seemed like it might have blockbuster potential. (Another high-profile example of this approach emerged out of the ACA-related dispute in Zubik.) Or the Court might do what it did in the case discussed above. It might acknowledge, quite openly, that it cannot do its job. In the North Carolina case, this distress signal was tapped out through the four noted dissents, which countered (but did not offset) the four justices voting to deny. Earlier in the Term, in the context of several deeply important cases that needed, but did not receive, resolution, the Court accomplished the same through a stark statement, framed in blank-page white: “The judgment is affirmed by an equally divided Court.”
How the Court responds each time it faces this problem will depend, as it should, on a number of case-specific considerations. Overall, however, I think that the best approach tends to be the third. Masking its own paralysis may suggest consensus, a value that we know the Chief Justice favors, but it risks confusing the courts and others watching to figure out where the law might be headed. It also makes it harder to determine—and, as appropriate, to protest—the effects of the nomination deadlock. Taking the second approach and issuing a compromise opinion, like the Court appeared to do in Spokeo, provides the litigants with at least some resolution, but the inscrutable decisions that emerge barely accomplish even this, and they threaten to muddle the case law in a way that will confound even after the Court reaches full capacity. Taking the third approach—openly acknowledging that, in this context, the Court is failing—seems to be the most effective way for this eight-member body to accomplish what little it can right now: signaling that it needs help, and minimizing the harm going forward.
Wednesday, September 21, 2016
State v. Dharun Ravi: Invading the Sexual Privacy of LGBTQ Persons
*This post is based on a contribution to the Boston University Law Review symposium on Danielle Citron's Hate Crimes in Cyberspace.
Invading the sexual privacy of LGBTQ persons is particularly devastating. In a world characterized by homophobia, exposing someone as gay, publicizing his or her sexual activities to others, and transforming him or her into a sexual object means that LGBTQ victims of sexual privacy invasions face stigma and discrimination.
Cyberharassment devastates its victims. Anxiety, panic attacks, and fear are common effects; post-traumatic stress disorder, anorexia and bulimia, and clinical depression are common diagnoses. Targets of online hate and abuse have gone into hiding, changed schools, and quit jobs to prevent further abuse. Some lives are devastated in adolescence and are never able to recover. Some lives come to tragic, premature ends. According to one study, almost three-quarters of cyberharassment reports come from women. Nearly half of all lesbian, gay, bisexual, and transgender (LGBT) youth experience cyberharassment each year, and LGBT teens are three times more likely than heterosexual teens to be harassed online and twice as likely to receive threatening or harassing text messages. As a gendered and sexualized phenomenon, cyberharassment plays a role in the continued subjugation of women and members of the LGBT community.
For sexual minorities, institutional discrimination amplifies cyberharassment’s horrors. This is not to say that heterosexual victims are crying wolf; to the contrary, cyberabuse is an equal opportunity offender. But LGBTQ victims face three additional hurdles. First, the personal psychological effects of cyberharassment are likely worse when victims live in jurisdictions with laws that discriminate against them. And despite some notable advances, anti-gay discrimination is still more the norm than exception. Second, when patterns of cyberharassment also involve “outing” the victim as gay, rampant discrimination and lost opportunity can follow. And third, for those LGBT and questioning youth who, by virtue of their families’ geographic and cultural isolation, lack local LGBT friends and role models, cyberharassment transforms the internet, ostensibly a door to a wider digital world of opportunity, into a danger zone. This enhances a no-where-to-turn sense of hopelessness that, although experienced by many victims of cyberharassment, is felt by none more acutely than LGBT youth.
Institutional discrimination faced by LGBT victims of cyberharassment metastasizes psychological effects because, as Mark Hatzenbuehler has shown, institutional discrimination enhances all mood, anxiety, and psychological disorders. In a 2010 study, Hatzenbuehler found that institutional discrimination can have a statistically significant negative effect on the mental health of LGB persons: lesbians, gay men, and bisexual individuals who lived in states that banned gay couples from marrying experienced mood, anxiety, and psychiatric disorders at higher rates than LGB persons living in equality states. It makes sense, then, that LGBT victims of bullying and harassment rival only homeless LGBT youth in the frequency and severity of psychological injury in the community.
As a means of “outing” gay persons, cyberharassment also triggers an onslaught of potential discrimination in employment, housing, and the provision of health care. “Outing,” or the revelation of another’s identity, is a frequent element of cyberharassment targeting members of the LGBT community. It is a central reason why antigay cyberharassment is an invasion of an LGBT person’s privacy. Though emotionally harmful, the closet may be a necessary evil in a discriminatory world: in 29 states, you can be fired, denied a home, and denied public accommodation just for being gay. Consider the story of Mark C., one of the many LGBT victims of cyberharassment with whom I have spoken in the course of my research.
Many LGBT youth, in particular, also experience acute effects of cyberharassment because of their unique dependence on online social networks. Often faced with geographic isolation from fellow LGBT individuals, gay youth rely on online social networks to replace non-existent face-to-face communities because they allow roughly anonymous virtual interaction with like-minded individuals. Therefore, these adolescents are not only frequent internet users, but also completely reliant on the virtual community they create for social support, information about their sexuality, and answers to any questions they have about being gay. Empirical data bears this out. As early as 2001, more than eighty-five percent of LGB adolescents reported that the internet had been the most “important resource for them to connect with LGB peers.” Destruction of that online social support network through cyberharassment is, therefore, particularly harmful because it turns what might have been a gay student’s safe space into a danger zone. Gay and lesbian adolescents’ dependence on online media makes them more susceptible to those who would use it as a sword against them.
None of this is to say that cyberharassment does not devastate all its victims. But while it is clear that cyberharassment is a modern weapon used to subjugate sexual minorities, it also makes institutional discrimination worse. Cyberharassment turns second-class citizens into third-class denizens by ballooning psychological harms and triggering discrimination in employment, housing, and the provision of benefits. And it takes away a virtual world of great opportunity from those who need it most.
Tyler Clementi may not have been a victim of cyberharassment. But he was "outed" by his roommate's invasion of his privacy. That Mr. Ravi acted with such disregard for Tyler's humanity makes this story reek of injustice. The criminal law, as written by New Jersey's legislature, may not have been the best tool for addressing the problem. In my next post, I will discuss a few options--beyond the criminal law--for making the internet safer for us all.
"Like Pulling Teeth": Lessons for law schools from the 1980s dental school crisis
Eric Chiappinelli (Texas Tech) recently posted a new article on SSRN that analyzes the dental school crisis of the 1980s to draw lessons for currently struggling law schools. It is a very interesting article. Highlights and my thoughts after the jump.While readers of the blog are surely familiar with many of the issues facing law schools, I assume that most are less familiar with the dental education crisis of the 1980s. As Chiappinelli explains, an influx of federal spending (through research grants and federal student loans) encouraged the proliferation of dental schools (from 39 in 1943 to 60 in 1980). And students flocked to these dental schools, with the number of dental school students increasing from ~12,000 in 1950 to ~23,000 in 1980. However, like with law schools, darker days were ahead.
Although the inflection point for law schools appears to have been the 2008 financial crisis, fluoride was the game-changer in the dentistry world. By the late 1970s, enough people had grown up drinking fluorinated water that demand for dentistry's bread and butter services--filling cavities, pulling teeth and creating dentures--flattened. Around the same time, Congress grew concerned that it was contributing to the build-up of excess dentists and dramatically pared back its financial support for dental schools. In 1981, dental schools found that their revenue had suddenly declined by one-third, but their expenses continued to steadily increase. In short, dental schools were in a crisis that appears remarkably similar to the law school crisis.
Like other financially strained post-secondary education institutions, dental schools sought to balance their budgets by shifting away from tenure-track faculty and toward adjunct and other untenured faculty. Dental schools sought additional support from state governments, but state governments had their own financial troubles. Chiappinelli reports that many dental schools were able to shift some costs to students by significantly raising tuition. As a result, dental student debt increased by over 50% from 1978-1981 and doubled by 1990. However, rising debt combined with a lack of good dental jobs resulted in "a rapid and severe reduction in the number of people applying to dental school." Applicant quality, measured by their incoming credentials, dropped simultaneously. Again, echoes of the law school crisis.
Eventually, 12% of all U.S. dental schools closed. While every closed school operated at a loss, Chiappinelli notes that many that were operating at a loss did not close. Clearly, finances were only part of the story. In Part IV of his article, Chiappinelli works to identify other factors that were relevant to determining whether to close a dental school and to apply those lessons to struggling law schools. Rather than finances or operational aspects of dental schools, Chiappinelli concludes that a "school's intentional focus on mission and engagement . . . are particularly important . . ." Thus, law schools should--in Chiappinelli's view--do the following: (i) "ensure that their actions are aligned with the university's mission", (ii) "engage with their university and their relevant professional and lay communities", (iii) use clinics to demonstrate that the law school is aligned and engaged with the university's mission, and (iv) hire deans who can highlight for the university that the law school's mission is aligned with the university's, including how the law school brings prestige to the larger university.
I think that Chiappinelli's broadest point is clearly correct. In times of retrenchment, every enterprise needs to (re)consider its value proposition. Any law school that finds itself out-of-step with its affiliated university risks finding its support dry up. And I think the analogy from dental schools to law schools is a valid one, which is why I've also been working on a piece comparing distressed dental schools to other distressed colleges and universities. There are important lessons that can be learned. Nevertheless, there are at least two reasons to question the comparison.
First, it is my sense that many universities see their law schools as a "crown jewel" of the university system. As such, law schools may simply be viewed differently than dental schools, which apparently were often (but not always) perceived to lack prestige and quality compared to the rest of the university. Second, dental schools were never profitable, "as nearly every dental school loses money from continuing operations, if for no other reason than the clinical aspects of dental education cost more than they produce in revenue." By contrast, law schools were long seen as profit centers for their universities. As such, a university might be willing to subsidize losses for a longer period of time if university officials can be convinced that the law school crisis will eventually abate.
Glad to share more thoughts, but this post is already too long. It's my view that 3-4 paragraphs is the ideal blog post length. But if you're still with me, thanks for reading the whole thing.
Tuesday, September 20, 2016
Nonconsensual Pornography and the "Gay Bachelor"
Logo TV, an LGBTQ-themed television network, is running a sort-of reality show called "Finding Prince Charming." I hear it's absolutely terrible. It looks a lot like ABC's "The Bachelor," except Logo's version is about gay men. Its star is a statuesque man named Robert Sepulveda Jr., a model, interior designer, and, apparently, a former escort. Because Mr. Sepulveda is on television trying to become famous, a celebrity gossip website thought it was "newsworthy" to publish explicit photos of him from his escort days without his consent. The photos have now been "unpublished." As far as we can tell, Mr. Sepulveda used those photos during his days as an escort. He didn't publish them online for everyone to see. Posting graphic or explicit photos of another without his or her consent is called "nonconsensual pornography" (NCP), more commonly known as "revenge porn." And it is a crime in 35 jurisdictions and counting.
Most NCP victims are women. But gay men are frequent victims, as well. Lokies Khan, a gay Singaporean man, had a sex tape posted online without consent. Speaking on the YouTube channel, Dear Straight People, Mr. Khan said he felt "violated," "scared," and undermined by the incident: “Things that I post on Instagram are things that are within my control, are things I want people to see, [that] I’m comfortable with people to look at. But these gifs of me on Tumblr are not within my control. I did not give consent. I did not know it was there.”
In my own research, I have spoken to more than 20 gay male victims of NCP. It usually happens in one of two contexts:
- As with many cases of NCP, generally, ex-boyfriends sometimes post nude or graphic images of their former partners on Craigslist, pornography websites, or use them to impersonate victims on social networking sites.
- Some gay male NCP victims participate in gay social networking apps. Those apps require their users to post a profile photograph, but social norms on the platforms often make sharing more intimate photos a de facto requirement of participation.
One person I spoke to was a victim of NCP at the hands of a photographer who enticed the victim with promises of free professional headshots for casting calls. Many victims felt "vulnerable"; others felt angry about a person stealing their photographs. Almost all of them found different ways to express how NCP is a devastating erosion of trust.
Victims sent intimate photos to their former partners when they were apart, as kind of a modern day love letter. And many victims were indignant when their friends, acquaintances, or online commenters blamed them for taking and sending the not-suitable-for-work photos in the first place. On gay social networking apps, in particular, a background trust exists. As one man said to me, "We're all gay on here. We're all part of the same tribe, looking for community and companionship in a tough world. You are expected to share photos, with your face and your body. If you don't, people don't talk to you. To have that thrown back in your face is really devastating."
NCP can destroy its victims, as Danielle Citron and Mary Anne Franks have described at multiple points in their work. The fact that photos may be "unpublished" does not make the situation any better. The original publisher may have changed his mind, but the photos, once available online, could have been downloaded, uploaded, and reposted thousands of time. Nor is it a publisher's First Amendment right to publish anything he wants about others. Even celebrities enjoy a right to privacy, which, in fact, fosters more, better, and diverse speech.
Despite having his private photos published online, Robert Sepulveda may be doing fine; he hasn't, as far as we know, experienced the kind of professional, personal, physical, and emotional abuse faced by many NCP victims. But he has been the subject of repeated ridicule online for his past as an escort. The attacks have been a combination of different types of shaming (those who both look down on male escorts and those who think he is a poor role model for the LGBTQ community). Whatever we think about escorting or "sex work" or his absolutely excruciating show, no one deserves to have his or her privacy invaded by transforming them into the subject of the prurient interests of others without consent.
Monday, September 19, 2016
State v. Dharun Ravi: A Culture of Homophobia
Dharun Ravi existed in and contributed to a suffocating culture of homophobia. It helped keep Tyler Clementi in the closet and devalued Tyler's life to the point where Mr. Ravi and his friends consciously or subconsciously felt that Tyler did not deserve a right to privacy. This is the context in which LGBTQ individuals (and many women and other marginalized groups) live: they are seen as "less than" and less deserving of equal rights. For many, it is easy to harass them, assault them, ignore their protests, and invade their privacy because their second-class status means they don't really exist as fully realized humans. The cavalier way in which Mr. Ravi and his friends approached invading Tyler's privacy contrasts with the particularly grave consequences of "outing": openly gay individuals face latent and overt discrimination in society that could make coming out terrifying and dangerous.
There were several pieces of evidence to show that Mr. Ravi himself was explicitly uncomfortable with gay people. When he heard that his roommate might be gay, he texted to a friend, "Fuck my life. He's gay" (8). He tweeted a sarcastic "yay" after seeing Tyler make out with another man on September 19 (12). His sent a dismissive tweet--"they're at it again"--on September 21. He was "shocked" at what he saw when he spied on Tyler on September 19 (20) and did not want to go back to the room afterward, suggesting he was creeped out or that there was something dirty about what Tyler did (20).
Mr. Ravi also participated in a particularly nasty homophobic exchange with a high school friend.
M.H.: hahahahha your gay roomie that. . . did you really see him make out with some guy lmao
DEFENDANT: Yeahh omg [M.W.] saw it too. He was older and creepy and def from the internet
M.H.: that's so nastyyy ew watch out he might come for you when you're sleeping! hahaha jk
DEFENDANT: Omg everyone keeps telling me that. I haven't seen him since then
M.H.: hahaha good luck with thatt
DEFENDANT: He just texted me asking when I was coming home omg.
M.H.: maybe his gay friend is in your Ed bed*
DEFENDANT: I set my computer to alert me if anyone is in it when I'm not there LOL
M.H.: really?? how lmao that's so cool
DEFENDANT: My webcam checks my bed hahaha. I got so creeped out after sunday
M.H.: hahaha that's so crazy
DEFENDANT: Yeah keep the gays away
M.H.: I saw a lesbian Asian couple today but they were like nerdy fobby asian and it was gross
DEFENDANT: Ewwww. When we were in ny we saw two guys making out on a stoop
M.H.: NY that's pretty normal though hahha one of my friends is this gay Asian guy who has his ear pierced lol I mean bellybutton pierced*
In addition to this evidence suggesting that Mr. Ravi looked down on gays and contributed to the culture of homophobia at Rutgers, there is even more evidence that Mr. Ravi knew that antigay stigma permeated his group of friends. His friends said they were "shocked" and that it was "scandalous" two men would make out with each other (11, 14). One called it "weird" (11). Everyone was gossiping and laughing about it (14). There were at least 6 people who were gossiping and whispering and pointing to the man with whom Tyler hooked up (26). One student tried to brag that being told Tyler was gay "should have fazed" her (18).
Perhaps most indicative of the fact that a culture of homophobia contributes to a devaluing of gays lives is that everyone thought what Tyler was doing in his dorm room was their business. Mr. Ravi's friends wanted to "grab a glimpse" (19). They were "curious" (14). Mr. Ravi thought nothing of purposely positioning his webcam to focus on Tyler's bed (10, 19) and tweeting out invitations to his friends to watch the sexual encounter (18, 20). And his only response to a friend asking if Mr. Ravi actually spied on Tyler was "LOL" (23).
By the end of this story, more than 18 people knew that Tyler was gay and that Mr. Ravi could spy on him. This number included Ravi's friends from high school (7-8, 21), a young woman across the hall (9), her boyfriend at another school (12), her roommate (13), a friend from class (13-14), friends of the young woman's roommate (14), other friends from college (17, 19), and the members of Mr. Ravi's ultimate frisbee team (20, 21). When Tyler found out that Mr. Ravi had been spying on him, it would be hard for him to deny that his secret was out. He decided to commit suicide shortly thereafter.
Mr. Ravi cannot be directly blamed for Tyler's suicide. But the homophobic context in which he acted and to which he contributed should be relevant when considering both the gravity of the invasion of privacy and Mr. Ravi's state of mind. Mr. Ravi remained willfully blind to the consequences of his actions.
Should willful ignorance of the effects of invading the sexual privacy of a closeted gay person should be enough for sentence enhancement? That is clearly not the way the New Jersey statute invalidated in Pomianek was written; that statute made the state of mind of the defendant irrelevant. But could a re-written statute include both intentional targeting and willful ignorance of the effects of such targeting? Antigay bias is not just using antigay rhetoric--"I hate gays" or "Gays deserve to die"--and then purposefully acting on those impulses. Antigay bias includes contributing to a culture of homophobia that devalues the lives of gay persons.
What do you think about an antibias sentence enhancement provision that gets triggered either when someone purposely acts to discriminate on someone's identity or when someone acts with reckless disregard for the discriminatory consequences of his or her actions?
Wednesday, September 14, 2016
State v. Dharun Ravi: The Appeal
In my last post, I summarized some of the basic facts of the Tyler Clementi/Dharun Ravi story. After he was convicted on all counts, Mr. Ravi appealed his convictions. He made various arguments, but his appeal was given an enormous boost by the 2015 New Jersey Supreme Court decision in State v. Pomianek, 221 N.J. 66 (2015), which declared unconstitutional a key statute upon which Mr. Ravi's conviction was based.
N.J.S.A 2C:16-1(a)(3) states:
A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of [certain specified] offense[s] ... under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (emphasis added).
This provision was the basis for 4 of the 15 counts in the State's case against Mr. Ravi (Ravi, 2-4). Related evidence also permeated the prosecution's case, including counsel's moving closing statement (45-48). But on March 17, 2015, in Pomianek, the New Jersey Supreme Court declared the provision unconstitutional: it was void for vagueness in violation of the Fourteenth Amendment.
Pomianek involved several workers at the Gloucester Township Department of Public Works. The defendants, all white, and the victim, a person of color, were assigned to an old garage that Public Works used for storage. Inside that garage was a large metal cage that could be padlocked closed. The workers had been "horsing around" in the garage, including in and near the cage. As part of a ruse, one of the defendants approached the victim and told him that their supervisor needed some supplies from the cage. Once the victim was inside, the defendant closed the cage door and locked it. A number of workers started laughing, and one of the defendants said, "Oh, you see, you throw a banana in the cage and he goes right in, which triggered more laughter among the men." The victim felt there were racial overtones to this statement. Another worker unlocked the cage door within 3 to 5 minutes. The victim testified that he felt "humiliated and embarrassed." After the victim was released, the defendant was heard saying, "You all right, buddy? We were just joking around."
The defendants in Pomianek were charged, among other things, with bias intimidation in violation of 2c:16-1(a)(3). The jury convicted them on those counts because, considering the racist overtones of the "banana" comment, the victim could reasonably believe that the act was committed on the basis of race.
The problem with this provision was that unlike every other bias crime statute in the country, this law was based on the state of mind of the victim, not the intent of the defendant. The New Jersey Supreme Court concluded that this violated the Fourteenth Amendment. A core element of due process is that a law must clearly define forbidden conduct so that individuals can tailor their behavior to conform with the law. Section (1)(a)(3) did not do that. By hinging guilt on what is going on in the victim's mind as opposed to the defendant's mind, the statute does not put a "reasonably intelligent person on notice when he is crossing a proscribed line."
Based on Pomianek, any part of Mr. Ravi's conviction based exclusively on (a)(1)(3) was void as a matter of law. But, according to the Appellate Division, evidence of Tyler's perception of the events was a "pillar" of the prosecution's case (41). It came up often, including in the closing statement. In fact, it came up so often that it "render[ed] any attempt to salvage the convictions under the remaining charges futile." It therefore was "unreasonable to expect a rational juror to remain unaffected by this evidence" (6). Evidence of Tyler's state of mind was prejudicial and not harmless beyond a reasonable doubt. As such, the court overturned Mr. Ravi's conviction in its entirety.
I am not so easily convinced. The Fourteenth Amendment does not protect people from punishment enhancement based on their indifference and willful ignorance to the plight of their victims. "Bias" should be understood as more than just stating, "I hate gays." But let's assume that Pomianek is correctly decided. The statute was poorly worded; the trial judge noted that. And it is hard to imagine convicting someone of a bias crime without any evidence of bias. There was, however, a lot of evidence that Dharun Ravi existed in a contributed to a culture of homophobia that discriminated against Tyler and devalued his life in the eyes of others. I will discuss this point in my next post.
Though we were all shocked by Tyler's suicide, it is not clear that turning to the criminal law is always the right answer. The New Jersey legislature had good intentions: it wanted to recognize that the pain of the victim, the monstrosity of the attacker, and the social context in which attacks occur matter. But maybe those considerations are best left for tort law. Clearly, evidence of the gravity of the harm and the homophobic context of Mr. Ravi's conduct could be important in a civil case against him.
Stay tuned for more!
Monday, September 12, 2016
State v. Dharun Ravi: What Happened?
On September 9, the Appellate Division of the Superior Court of New Jersey released its opinion in State v. Dharun Ravi. Dharun Ravi, of course, was the roommate of Tyler Clementi, a young Rutgers student who, after Mr. Ravi and his friends spied on him during an intimate encounter with another man, committed suicide on September 22, 2010. The court overturned all of Mr. Ravi's convictions.
To refresh our memories, here's what happened. (All numbers in parentheses refer to the page numbers in the Appellate Division's decision).
Tyler and Mr. Ravi were roommates at Rutgers University. Shortly after being notified that Tyler would be Mr. Ravi's roommate, one of Mr. Ravi's friends found out that someone using Tyler's email address had posted on a forum for gay people (7). So, Mr. Ravi came into college with at least an inkling that his roommate was gay. Tyler, however, was not open about his sexuality. Tyler was still in the closet.
On two occasions in September 2010, Tyler asked for some time in the room by himself (10). He had met a man using a gay social networking platform and invited him to his room (24). Mr. Ravi left. On the first occasion, which took place on Sept. 19, Mr. Ravi actually came back into the room within a few minutes and appeared to "shuffle some papers" on his desk. It turned out he was also adjusting the position of his webcam to face Tyler's bed. Mr. Ravi then used his technical skills to have his video chat platform automatically accept all calls. This allowed anyone who called him to see through his webcam. On both Sept. 19 and Sept. 21, Mr. Ravi tweeted out several comments about Tyler being gay, that he asked to be alone in their room, and that he was hooking up with another man (12). He encouraged others to call his account and watch (18). Mr. Ravi and quite a few of his friends watched live video of Tyler and another man "making out" on Sept. 19 (11). They tried to do so again on Sept. 21.
By reading some of Mr. Ravi's public tweets, Tyler found out that Mr. Ravi had invaded his privacy and made him the subject of others' prying eyes without his consent. Tyler then complained to his resident advisor and asked for either a private room or a different roommate (26-27). On Sept. 22, Tyler's RA notified Mr. Ravi about Tyler's request for a new room and explained Tyler's allegation that Mr. Ravi had invaded his privacy (29). At 8:46 PM that evening, Mr. Ravi wrote Tyler a text that (sort of) apologized (29-30). Shortly thereafter, Tyler, who had already left campus, used his cellphone to write on his Facebook page: "I'm going to jump off the GW Bridge. Sorry." Moments later, he did so (30).
On April 20, 2011, a grand jury returned indictments against Mr. Ravi for invasion of privacy, bias intimidation, witness tampering, and hindering apprehension or prosecution. On March 16, 2012, the jury convicted Mr. Ravi on all counts. After denying a motion for a new trial, the trial judge sentenced Mr. Ravi to 3 years probation, dependent on serving 30 days in jail (4). Mr. Ravi also had to complete 300 hours of community service, attend counseling on cyberbullying and diversity, and pay $10,000 (which was to be dedicated to helping victims of bias crimes) (5).
September 2010 was a difficult month for the LGBT community. Tyler was just one of 10 gay adolescent boys to commit suicide. Billy Lucas, 15, died on Sept. 9. Cody Barker, 17, died on Sept. 13. Seth Walsh, 13, died on Sept. 19. Asher Brown, 13, died on Sept. 23. Harrison Brown, 15, died on Sept. 25. Raymond Chase, 19, died on Sept. 29. Felix Sacco, 17, died on Sept. 29. And Caleb Nolt, 14, died on Sept. 30.
Tyler's death brought extensive media attention to the problems of suicide in the LGBTQ communities and antigay bullying. Celebrities, including Ellen Degeneres and Anderson Cooper, spoke out about both issues. Antigay bullying is indeed an epidemic facing our schools and our communities. But it is worth asking: Was Tyler a victim of "cyberbullying"? In one sense, it doesn't matter. Tyler's story brought much needed attention to a problem that needs to be addressed, and his parents have joined the fight against bullying and cyberbullying in the years since his death.
But definitions are important. There are a host of definitions of “cyberharassment” or “cyberbullying” milling around. And imprecise and inconsistent definitions frustrate our ability to understand, talk about, and solve the problem. Danielle Keats Citron, author of Hate Crimes in Cyberspace and the leading cyberharassment scholar, defines cyberharassment generally as repeated online expression that intentionally targets a particular person and causes the targeted individual substantial emotional distress and/or the fear of bodily harm. There are five core elements to that definition: repetition, use of digital technology, intent to target, targeting, and substantiality of harm.
Cyberbullying is a subcategory of cyberharassment that includes all five of those elements but is focused squarely on youth-to-youth behavior. It can be understood as repeated online expression that is intended to cause substantial harm by one youth or group of youths targeting another with an observed or perceived power imbalance. This definition retains those five factors and adds two important elements: youth and power imbalance, the latter of which is actually common in many forms of cyberharassment. The asymmetry of power, which could be based on identity (i.e., a member of the majority attacking a member of a traditionally marginalized and discriminated minority), draws the line between schoolyard teasing and bullying. It should come as no surprise, then, that young members of the LGBTQ community are uniquely susceptible to bullying and its tragic consequences. They are bullied because they deviate from the norm and because antigay bullying is either tacitly or explicitly condoned by antigay bigotry and homophobia in society at large. This definition of cyberbullying captures the worst online aggressive behavior while excluding the otherwise mean, hateful, and distasteful speech that free speech norms tend to tolerate. Cyberbullying is, at bottom, cyberharassment involving youth. And it is an epidemic affecting our schools.
Although Tyler was targeted because of his sexual orientation and Mr. Ravi's behavior caused Tyler to experience substantial emotional distress, it is not clear that what happened to Tyler involved repeated behavior that rises to the level of a course of conduct. However, I am not sure that matters at all. Mr. Ravi was not accused of violating an anti-bullying law; he was accused of invading Tyler's privacy, which is exactly what he did.
With this background, I would like to use several forthcoming posts to explore several theories and questions about the Appellate Division's decision in State v. Dharun Ravi. Stay tuned for the next post!
Wednesday, September 07, 2016
Watching a Tragedy Unfold—the Spread of the Zika Virus and some teachable material about Federalism
While it’s considered sensationalistic in public health circles to make an analogy to AIDS every time a new virus emerges, the FDA’s recommendation that we begin screening all blood donations for Zika raises that question on its own. So far, there is no effective treatment or vaccine.
Congress has the power to authorize funding to develop both, but they also have the power to stand by and watch. Starting with a vote last February, Congress has refused to authorize the $1.1 Billion that the CDC and the Department of Health & Human Services (and other Agencies) need to develop a vaccine, treatment, and prevent strategies. Congressional dysfunction is hardly a surprise. Nor should it be a surprise that the latest pretext is that Planned Parenthood may be involved in what is so far the only effective way of preventing pre-natal infection, contraception.
Could it be that we will look back at Congress’ failure to fund a Federal response to the Zika virus as another tragically lost opportunity? Is Zika really that bad? Well, the WHO released new guidelines today that although couched in terms intended to reassure, are no better than a placebo. It’s couched as helpful, but Zika isn’t like some kind of soil contamination that can be avoided by cordoning off a few blocks in a major city. Not only are the mosquitos quite good at hitching rides, it is clear that the virus can be transmitted through bodily fluids and, very much so, from mothers to their unborn children. And, as both the CDC and WHO well know, advice to avoid pregnancy is not realistic. By some estimates, over 45% of pregnancies in the US are unplanned and there’s no reason to think the number is significantly lower anywhere else.
As is almost always the case in a time of public health crisis, there are balance of power lessons to learn.
The President of the United States does not have direct power to protect the public’s health—that authority rests in the individual States under the Police Powers Doctrine. But he could act alone to combat Zika if he were willing to declare it a threat to national security. The CDC has compiled a very helpful document outlining these powers, but as explained, in presidential transition memo the consequences to the rule of law in using them are enormous. And in retrospect almost never justified.
So the coming of Zika to the United States presents a clear illustration of the limits of our powers of federalism. As so often happens in these cases, states are trying to fill the gaps. But in the end, no individual state has the resources to mount the billion dollar response required to get ahead of this menacing threat. For now, the CDC is diverting its own resources to the states, but that is at best a “stopgap.”
Tuesday, September 06, 2016
Letters to the powers that be
I am a junior (untenured) assistant professor at Howard University School of Law. Although I do not (yet?) self-identify as a public intellectual, I do produce scholarship that seeks to critically study and reflect upon problems in society and that proposes solutions for those problems. It seems that the very act of seeking to affect the public discourse makes me a public intellectual (at least according to Wikipedia).
I've found myself reflecting on my status recently because I've been offered several opportunities to sign letters that seek to influence rules being promulgated by the Consumer Financial Protection Bureau. See, e.g., this letter. My gut reaction is usually a bit of self-doubt. Do I really know enough about all sides of the issue to weigh in? Have I thought about the problem long enough and adequately reflected on the appropriate solutions? In addition, I wrestle with how much time to devote to getting up to speed on the issue covered by the letter.
I assume that others have much more experience in this area than I do. As such, I'm curious what other folks think about signing (or drafting) such letters. What factors affect your decision to either draft such letters in the first instance or to sign ones that come across your desk? How much time do you invest in making sure that the comment letter you sign is as perfect as it can be? Put differently, do you treat these letters like a blog post or a law review article? Finally, did you think differently about these issues when you were untenured? Should you have?
Thanks for sharing your thoughts!
Wednesday, August 31, 2016
Bard Signing In
Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.
As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.
Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink
Monday, August 01, 2016
Reforming the police by focusing on the courts
Matthew Segal, legal director of the ACLU of Massachusetts, has written an interesting op-ed in the Guardian in which he argues that many of the concerns that the Black Lives Matter movement has about police violence and the need for police reform are the result of court decisions in Fourth Amendment cases. In his words: "Courts have shaped American policing by defanging the fourth amendment’s prohibition on 'unreasonable searches and seizures.'"
It's also interesting to see this coming just after the establishment of the bi-partisan Fourth Amendment Caucus in the US House of Representatives. The Fourth Amendment covers a wide swath of law enforcement action, of course, but it does appear that most of the comments I've seen about the caucus are either broad statements about protecting civil liberties or limiting mass surveillance (EFF). The clearest exception to this in the Caucus's press release was the statement from Malkia Cyril (Co-Founder and Executive Director, Center for Media Justice; Member of the Caucus's Steering Committee): "In an era of escalating police violence, Black communities urgently need political leadership to protect us from illegal search and seizure, invasions of privacy, and other Fourth Amendment violations."
With Supreme Court decisions (many cited by Segal in his op-ed) restricting the ability of lower courts to give the Fourth Amendment its "fangs" back (to use Segal's language), I wonder whether something like the Fourth Amendment Caucus will actually do something to address the Fourth Amendment's impact on day-to-day policing in communities across the country.
Update on PrEP Access
As a follow-up to my initial post on barriers to accessing pre-exposure prophylaxis (PrEP) as a means of preventing HIV, I wanted to highlight new numbers provided by Gilead, the maker of the only FDA-approved PrEP pill—Truvada. According to Gilead, more than 79,000 people started using Truvada as PrEP in the U.S. during the period of 2012-2015, based on a survey of retail pharmacies (this number may be an underestimate because it does not include certain prescription programs). Recall that the CDC has suggested that over 1.2 million people have indications for PrEP. While the number of people starting PrEP has grown each year, Gilead indicated that those using PrEP are disproportionately white. As discussed, HIV is disproportionately spreading among black people (in 2014, 44% of new diagnoses were among black people, notwithstanding that black people accounted for 12% of the population). This seems to confirm that access to PrEP as a means of preventing HIV, like access to health care more broadly, has been uneven and that efforts to expand access through Medicaid expansion and awareness campaigns need to be strengthened.
Been great visiting this month! Thanks to Howard for the opportunity!
Wednesday, July 20, 2016
SSRN, Elsevier, and the Alternatives (again)
(I've updated this post on July 21 at 10:17am CET, and I've indicated below what content is new or revised)
Elsevier has become the world's largest open-access publisher, but it has also faced quite a lot of pushback from scholars over its open access policies. Now it has purchased SSRN, generally seen as the go-to repository for open access to (mostly) pre-print legal scholarship (or papers not bound by restrictive copyright licenses), and certain voices have begun to call for authors to pull out of SSRN and move elsewhere (the almost-in-beta nonprofit and open access SocArXiv repository looks like it might make a viable option as it comes more fully online).
Following up on this recent post by Howard (of an email by Stephen Henderson (Oklahoma)), as well as coverage at TechDirt, and Author's Alliance (asking: "Is it Time for Authors to Leave SSRN?"), I wanted to raise some additional questions. My first reaction is that a well-organized and sufficiently funded not-for-profit platform would be much more preferable in the long run than keeping ties with a for-profit platform owned by a controversial mega-publisher. However, I wonder whether such a move is worth it, without some larger (even institutional) challenge to SSRN's reign. I also wonder whether junior scholars like me risk more in leaving than more established scholars. To the specific questions:
First, is there a role for institutions (law schools) to withdraw support for SSRN/Elsevier and move towards supporting a non-profit like SocArXiv? If so, how would we organize such a movement? Would it be worth it in the long run to move support away from a for-profit platform to something like SocArXiv? SSRN has done a good job of getting institutional buy-in, which may make it harder for a broader institutional challenge to its pre-eminence in this regard. For example, my own law school, at Tilburg University, has proudly advertised that we are ranked in the top 10 (worldwide) and #2 (international, non-US) on SSRN for "total new downloads." We also publish our working paper series through SSRN. Yet, we also have a history of calling for boycotts of Elsevier over not making more work available on an open access basis in the Netherlands. (Edit: I offered these examples to show that the elements of gamification on SSRN work as a way to entrench support or, at least, make leaving more costly.)
Second, what are the individual risks of pulling papers off SSRN and moving elsewhere? Would pulling papers off SSRN (and thus presumably losing the stats and author ranking on the site) be more risky for less established junior scholars (or law prof hopefuls)? What role has SSRN (and author download rankings) played in evaluating entry-level job candidates or lateral candidates for jobs, or internal candidates for promotion/tenure? Does SSRN performance play any role in committees or administrations judging scholarly impact? (if so, should it?)
[Edit: Third, If a new open-access archive for law scholarship were to come online in the near future, what characteristics or features would you want it to have or not have (either those already existing on SSRN, ResearchGate, et al., or entirely new features?)]
Update (July 21, 2016 at 10:17am CET):
Since I published this post yesterday, a number of new discussions on this topic popped up on a variety of lawprof listservs. The following thoughts from Ariel Katz (Toronto) are shared with permission:
I’d like to float the following idea:
The names of esteemed members of these groups adorn SSRN’s subject matter journals. For example: the editors of the Cyberspace Law eJournals are Peter Swire and Jonathan Zittrain, and members of the Advisory Board are: A. Michael Froomkin, Trotter Hardy, David Reynold Johnson, Ethan Katsh, Mark A. Lemley, Jessica Litman, David G. Post, Margaret Jane Radin, Pamela Samuelson, and Eugene Volokh. Rob Merges is the editor of the IP eJournals and the Advisory Board members are Rebecca S. Eisenberg, Paul Goldstein, I. Trotter Hardy, William M. Landes, Mark A. Lemley, J. Thomas Mccarthy, Margaret Jane Radin, and Pamela Samuelson.
I imagine that being an editor or a member of those advisory boards is rather meaningless in practice, and I won’t be surprised if some of the colleagues whose names are on those advisory boards don’t even remember that they have once assumed this role. However, decorating it’s communications with those names isn’t meaningless for SSRN, because it has helped it to build its reputation for a scholarly endeavor and a scholar-friendly entity, and appear to be part of the academia even though it has always been a private company.
Now, I don’t know if colleagues who are members of the advisory boards were ever asked to actually provide advice. But maybe now is the time to give it, even if unsolicited. If I were on one of these boards I think I might share my concerns with SSRN and decline to give my name if SSRN failed to provide satisfactory answers.
This email was quickly followed by a number of advisory board members voicing support for coordinating a more united front to give advice to SSRN, or to think about what an ideal alternative platform might look like.
Wednesday, July 13, 2016
Pokemon GO and the law
Pokemon GO has quickly garnered a massive following since its release last week, prompting one University of Utah professor to call it "arguabl[y] the most popular video game in the world," and others to argue that "it's daily use is expected to exceed Twitter by the end of the week." But the app raises some very interesting questions about privacy and data protection law, as well as a variety of other possible liability issues. Supposedly it originally siphoned huge amounts of personal data off smartphones, but the developer has been pulling back after getting some bad press.
Users, by getting out of their lazy boys and joining the outside world in the hunt for monsters, have already begun harming themselves and putting themselves in real physical danger, and the app has reportedly sent dozens of players to at least one private residence (a remodeled church building) in search of a Pokemon Gym. Douglas Berman, over at the Sentencing Law and Policy LawProfBlog, has noted that criminals have begun (or could begin) to abuse the app. And Andrés Guadamuz has just posted a very interesting summary of some the legal issues raised by the game over at TechnoLlama, including privacy and data collection, security, liability, and virtual location rights (or: how can a person tell the app to move an unfortunately-placed Gym to somewhere besides the inside of his or her home?).
Have you seen students (or faculty colleagues) wondering around campus chasing Pokemon? Are there other interesting liability issues raised by an augmented reality game like this that haven't yet been addressed?
Tuesday, July 05, 2016
Some thoughts about Whole Woman's Health v. Hellerstedt
Cross-posted at Casetext
I'm delighted to be back blogging at Prawfs! Thanks to Howard and the rest of the regulars for inviting me.
I wanted to start off with some thoughts about the Supreme Court's momentous decision in Whole Woman's Heath v. Hellerstedt -- more thoughts on the case may follow as they develop.
In Whole Woman’s Health v. Hellerstedt, the most important abortion case in over two decades, the Supreme Court handed the plaintiffs as sweeping a victory as they could have hoped for. In doing so, the Court also saved the “undue burden” standard and quite possibly the right to abortion itself.
Since the Supreme Court’s joint opinion in Planned Parenthood v. Casey, which was co-authored by Justices O’Connor, Kennedy, and Souter, the constitutionality of an abortion restriction depended on whether it imposed an “undue burden” on the ability of a “large fraction” of women to obtain an abortion. This standard was not only less protective of abortion rights than the strict scrutiny standard that the Court had set out in Roe v. Wade, it was also so indefinite and malleable that it opened the door to greater and greater envelope-pushing by states adopting increasingly onerous anti-abortion laws.
In Whole Woman’s Health, the Supreme Court was confronted with one such anti-abortion law—Texas’s H.B. 2. The Texas law required abortion clinics to meet the standards of ambulatory surgical centers (essentially, mini-hospitals) and abortion providers to have admitting privileges at a local hospital. The ambulatory surgical center requirements were prohibitively expensive for existing clinics to meet, and admitting privileges can be impossible for certain abortion providers to obtain for reasons totally unrelated to clinical competence, such as opposition to abortion (for example, by a Catholic hospital). Thus, the combined effect of the two restrictions—restrictions extant in numerous other states as well—would be to shut down approximately three quarters of Texas’s abortion providers, forcing many women—especially those outside the major metropolitan areas—to travel long distances and undergo long delays in order to obtain safe and legal abortion services.
In a 5-3 majority opinion by Justice Stephen Breyer, the Court held the Texas abortion restrictions to be an unconstitutional undue burden on abortion rights. In some ways, this holding was not surprising. After all, even Justice Kennedy, the most conservative member of that 5-Justice majority, would have to admit that if anything is a substantial obstacle to abortion access, H.B. 2 is. The bigger surprise was the way the Court went about it. In finding an undue burden, the Court held that the actual health and safety benefits of the law had to be balanced against the impact of the law on abortion access. Given that the two Texas requirements were found to have essentially no meaningful benefits to women, the massive burden on abortion access was unwarranted (or “undue”).
It is hard to overstate how important this particular approach was.
By focusing on the health benefits of the law in relation to the burdens, the Court made sense of, and breathed new life into, the undue burden standard. No longer is the undue burden standard a numbers game, in which the exact formula to be applied is unclear. Nor did the Court issue a narrow but ultimately unhelpful ruling identifying an undue burden in Texas without telling us what an undue burden actually is. Instead, the Court issued a sensible opinion giving real meaning to the word “undue,” and putting at risk dozens of abortion restrictions across the country that are passed in the name of protecting women, without any evidence to back them up.
Other elements of the decision were remarkable. For one thing, the opinion made it clear that courts are not to defer to legislatures on the medical or scientific issues that underlie abortion restrictions; instead, they should examine the evidence independently and critically. Justice Kennedy in Gonzales v. Carhart, the Court’s most recent major abortion case, had worried over the “traditional rule” of deferring to legislatures in the face of medical and scientific uncertainty, before ultimately choosing not defer to Congress’s demonstrably mistaken findings. In Whole Woman’s Health, by contrast, the Court asserted, “The statement that legislatures, and not courts, must resolve questions of medical uncertainty is … inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” The opinion thus affirmed the courts’ duty to review facts independently when constitutional rights are at stake.
The Court broadened its focus in other ways, as well. In Casey, the joint opinion had dismissed the district court’s concerns about the impact of a 24-hour waiting period, requiring two trips to the clinic, on women with fewer resources and those who had to travel long distances. Casey stated “[t]hese findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden.” In Whole Woman’s Health, by contrast, the Court specifically cited the trial court’s finding that the Texas laws would “erect a particularly high barrier for poor, rural, or disadvantaged women” in its finding of undue burden. Finally, the Court declined to split hairs on the issues of remedy and of facial versus as-applied challenges, as it had done in Planned Parenthood v. Ayotte and Gonzales v. Carhart.
Looking forward, there is reason to be optimistic about the impact of Whole Woman’s Health on abortion rights. Having now denied certiorari in admitting-privileges cases from Mississippi and Wisconsin (in which the plaintiffs won below), the Court has sent a fairly clear signal to any state legislatures considering admitting-privileges requirements in the future. And numerous states have ambulatory surgical center-type requirements, though admittedly the Court was less categorical in striking those down. Given that ambulatory surgical center requirements vary greatly from state to state in their details and onerousness, it is necessary to look more closely at the specific nature of the requirements and their impact. Reading the opinion to require states generally to justify burdens on abortion with evidence supporting an actual benefit for the law, it’s possible that the Whole Woman’s Health decision will also be used to strike down 20-week abortion bans, which are often justified based on junk evidence pertaining to fetal pain. Bans on using telemedicine to provide medication abortion, currently in effect in 18 states, are also now vulnerable.
Perhaps the most important aspect of Whole Woman’s Health, however, is that the Court treated the right to choose abortion like the fundamental right that it is. As with other constitutional rights, infringements on the right to choose abortion must be viewed with scrutiny rising above the level of deferential rational-basis review.
Saturday, July 02, 2016
Nationalism and Reciprocity
Thanks to the powers at Prawsfblawg for inviting me back. I'm a law professor at Loyola Law School, Los Angeles. I always appreciate the opportunity to place my nascent thoughts in the public forum, and see what interests folks. For the most part, I'll blog about criminal procedure in general, and in particular policing. But given the date, I thought something else might be more appropriate.
I’m Scottish. Given the current temporal proximity of Brexit and the Fourth of July, in which Americans celebrate their revolting forebear’s legally irrelevant secession statement, I'll impart one thought on nationalism. We might think that nationalism is a unilateral affair: it states “I assert my independent status as Scottish/English/American/etc.” But nationalism is, in fact, a bilateral or multilateral affair: in asserting your American identity, you rejected your British identity. It is possible to have multiple identities—Scottish and British and European. But multiplicity sits uncomfortably with nationalism. Even if Scots want to be independent *within Europe*, Scottish nationalists want to be *not-British* within Europe. And for Scottish nationalists, Europe is not an independent national identity: it is a subsidiary part of the Scottish identity. Scotland, the Scottish nationalists assert, is a European country, not limited in its projects to the British Isles (and maybe even not oriented in its projects to the British Isles).
If Nationalism is a bilateral or multilateral affair, such that asserting the exclusionary status of membership Nation X entails asserting that members of Nation Y are not participants in the Nation X project, then Nation X’s nationalism is likely to have consequences for Nation Y. One of those consequences is that members of the excluded nation are likely to feel shunned. In a *United* Kingdom, the Northern Irish, Welsh, and, yes, the *English* all participate in the Scottish project. In an independent Scotland, they do not. Indeed, one reason that Scottish nationalists want independence is precisely to prevent and exclude England from participating in the Scottish project. It’s not at all clear that they also want to exclude our Celtic Cousins the Welsh and Irish. But there is it: reject one, reject all.Being the object of exclusion might make the English (or any Nation Y) understandably resentful. Bugger you, they might say: if you don’t want us to participate in your project, then we don’t want you to participate in our project. Indeed, one consequence of 18 months of “Indyref” (the term given to the referendum on Scottish independence) debate was an upsurge in English animus towards Scotland. Scots often took this to confirm what they always new: that the English didn’t really like us as much as they claimed; and that there was a strong undercurrent of English nationalism hidden behind British-nationalism-as-“we-all-support-England.” But I think that what also may have happened was that thoughtless English-Britishness became intentional English nationalism, and so the projects of England and Britain became separated, as English nationalism grew in response to the exclusionary Scottish nationalist project.
If that’s right, then it’s possible that UKip, as the party of exclusive English nationalism, got its fillip, not from Brussels incompetence, but from Scottish nationalist calls for independence. As Scottish nationalists rejected the British project because English politics drowned Scotland out of having a say in British politics (itself dominated by the South of England), so English nationalists rejected the British project, and Britain's embrace of its place in Europe, and instead endorsed an English, exclusionary project. And that English project has historically seen itself in opposition to Europe.
So did Indyref 2014 cause Brexit 2016? And what does that say about other nationalist projects, and their consequences on the excluded nations and nationals? Do nationalists depend for their identity as members of Nation X upon excluding competing nation's identities?
Friday, July 01, 2016
Expanding Access to the HIV Prevention Pill, Truvada
Thrilled to be guest blogging with Prawfs this month!
To kick things off, I thought I’d highlight some of the barriers that are preventing widespread access to Truvada, a once-daily pill that can help prevent infection with HIV even if exposed to the virus. Although approved by the FDA for use as pre-exposure prophylaxis (or “PrEP”) in 2012, awareness of Truvada as a tool for preventing the spread of HIV is not universal, and several barriers to uptake exist.
According to the CDC, daily use of PrEP can reduce the risk of getting HIV from sex by over 90%. Importantly, Truvada is not a replacement for condoms, and should be used with condoms (particularly since Truvada doesn’t prevent other STDs). The CDC recommends that those at “substantial risk” of HIV consider taking Truvada. In America, about 1.2 million straight and queer people engage in behavior that puts them at “substantial risk” of HIV, and yet the number of people taking Truvada as PrEP numbers only in the tens of thousands. If taken more widely, PrEP could meaningfully reduce the number of people infected with HIV each year, which has remained steady over the past few years at about 50,000 new infections each year. (More than 1.2 million people in the United States are currently living with HIV).
As outlined in a wonderful new report by Duke Law’s Carolyn McAllaster and the Southern HIV/AIDS Strategy Initiative (SASI), the key barriers to PrEP uptake include lack of awareness, stigma, and cost/access. Of these, I want to draw attention to two key points.
First, as recognized by the White House’s National HIV/AIDS Strategy, HIV stigma remains one of principal roadblocks in preventing, detecting, and treating HIV. In addition to discouraging PrEP, HIV stigma contributes to what is known as the care continuum, where, according to estimates, roughly 86% of those with HIV are diagnosed, only 40% are engaged in care, and only 30% are virally suppressed through use of anti-retrovirals. But, unfortunately, certain government policies, such as the FDA’s blood donation deferral policy toward gay and bisexual men and laws that criminalize HIV transmission, stigmatize HIV and push it further into the shadows. But there is also PrEP-specific stigma, with some suggesting that those who use Truvada are promiscuous and irresponsible, when, in reality, taking PrEP is sexually responsible.
Second, as the SASI report notes, while HIV is disproportionately spreading in the South and, there, disproportionately among black women and black men who have sex with men, most Southern states have not adopted Medicaid expansion. Why is this significant? Medicaid and most private insurers will actually help pay for Truvada, which costs about $1,300 a month. But nearly 3 million adults fall in the so-called “coverage gap” between traditional Medicaid and the Affordable Care Act’s insurance subsidies (a gap that Medicaid expansion would cover). And 89% of people in the coverage gap are in the South, the region most in need of HIV prevention tools. As such, without Medicaid expansion, millions of people lack health insurance, including many who may have indications for PrEP.
That’s enough for now, but for those interested in additional steps that can be taken to expand access to PrEP and prevent the spread of HIV, I once again recommend the SASI report!
Tuesday, May 03, 2016
"And a question everyone here should ask . . . " "Are you Canadian?"
I'm making this brief return to Prawfs (thanks Howard!) to plug an article by Christopher Schmidt and me on the issue of Senator Ted Cruz's eligibility to be president. The issue got a lot of play earlier in the primary season when Donald Trump said that Cruz's Canadian birth was a problem for the Senator's campaign, and numerous constitutional law profs weighed in on the issue. (See, e.g., Larry Tribe, Akhil Amar, Einer Elhauge, Eric Posner, Michael Ramsey.) The debate centered around originalism: would Cruz be eligible under an originalist understanding of the natural-born citizen clause? Tribe, Elhauge and Posner said no, while Ramsey said yes. Commentators debated the original understandings of the Constitutional language, as well as certain 18th Century English and American statutes -- but they also asked whether originalism was the appropriate constitutional interpretive method. Tribe, for example, argued that Cruz was ineligible under originalism but perfectly eligible under a "living constitutionalist" approach.
In our article "The Natural-Born Citizen Clause, Popular Constitutionalism, and Ted Cruz's Eligibility Question," Chris and I focus on the role of popular constitutionalism in the modern conservative movement and discuss the ramifications of a popular constitutionalist approach to the natural-born citizen clause. Drawing on Chris's terrific earlier work on the Tea Party and popular constitutionalism, the article makes the case that the popular understanding of "natural-born" would likely exclude Cruz from eligibility, as the common understanding has been that a candidate must have been born in the United States. However, Cruz's campaign has emphasized that this question is "settled law," and has looked to elite constitutional opinion to nail down the issue. In particular, an article by Neal Katyal and Paul Clement -- published in the Harvard Law Review Forum, and timed to come out just before Cruz's presidential announcement -- claims that Cruz is eligible, and that any other conclusion is "specious" and "spurious." Cruz has not left the clause's meaning open to voters, and he has not asked them to draw upon their "conservative constitutional principles" to decide whether he is eligible. On other matters, however, Cruz has been very much a popular constitutionalist -- to an underappreciated extent. Cruz's political campaign consistently refers to the people's role in defending the Constitution, and he has been a Tea Party constitutionalist since at least 2012, when he brought Sarah Palin and other Tea Partiers on board for his senate campaign. In fact, Cruz has even advocated for amending the Constitution to allow for retention elections for Supreme Court justices.
Although the national media has largely moved on from the question of Cruz's eligibility, the issue still burbles below the surface. The snappy comeback from a Trump supporter yesterday shows that Cruz's Canadian birth still matters to some. If Cruz fails to get the Republican nomination, there are myriad reasons why voters might have settled on a different candidate. But popular constitutionalism in action might be one reason that voters cast their ballot for someone else.
Wednesday, March 30, 2016
Value chain dynamics of legal education
I wanted to finish my guest blogging with another comment about institutional features of the legal academy, specifically its economic structure as a market or market participant. I started thinking about this last year, when a Cuban economist taught me about value chain economics, a theory that Harvard Business School professor Michael Porter put forth in his book Competitive Advantage.
In my lay understanding, situating a product or process in a value chain means taking into account all the upstream inputs and downstream outputs relevant to a particular point of production or distribution. The approach emphasizes relational ties between the upstream and downstream processes that result in an ultimate product or service. Visualizing the chain as a whole helps to understand the economic dynamics in a particular link of the chain. In effect, the chain is the firm. For example, supply chain analysis seems to be a specific application of the value chain idea. So, for example, Walmart is such a powerful buyer that – through contract – it can influence (maybe mandate) the business models of its upstream suppliers.
In the global agricultural market – this gentleman explained to me – 80% of global supply gets funneled through pre-existing value chains, not through some kind of “open market” where buyers and sellers meet. Indeed, insofar as these relational networks determine the production, distribution, and financing flows for a product, the “open market” idea seems like a fiction promoted by orthodox understandings of microeconomics.
What intrigued me was the possibility of using value chain modeling to understand banks and the financial sector, which made instant intuitive sense to me because cash and credit are fungible commodities that flow through these intermediaries through relational channels.
But then I also began to wonder what a value chain model of legal education would look like. This schematic is my draft attempt at figuring that out. I’d welcome any thoughts on this idea.
Let me close with a tiny bit of self-promotion. Last month, I finished my first monograph, Bank Funding, Liquidity, and Capital Adequacy: A Law and Finance Approach. I’m still happy about it, so I wanted to share it.
Tuesday, March 29, 2016
Cuba examination questions
The growing detente between the US and Cuba raises some issues that make for interesting examination questions. Here are two.
At some point, the normalization process will allow Cubana (the state-owned airline) to fly in or through U.S. air space. However, Cuban authorities worry that its airplanes in the U.S. could be seized by private litigants with claims against Cuba. Usually the Foreign Sovereign Immunities Act shields foreign states from being hailed into court here, but the FSIA contains exceptions when (i) the property in question (in this case the planes) is tied to property expropriated by the foreign state and when (ii) the foreign state engages in commercial activity in the US. Do the Cuban authorities have anything to worry about?
The second issue involves the long-standing questions that many have had about whether Helms-Burton’s attempt to codify the embargo is constitutional. The question mattered less when both the President and Congress were on the same page (because the embargo could rest on executive authority), but now the branches disagree. The question matters because Obama has said that he’ll use his authority to roll back the embargo. How far can he go before being hemmed in by a valid Congressional mandate?
Misrepresenting the Employment Law Impact of HB 2
One of the most disappointing and infuriating things about the HB2 saga in North Carolina has been the persistent misrepresentation of its impact by Gov. McCrory and its supporters in the General Assembly. As an employment and civil procedure scholar (and former long time litigator), I take particular umbrage at the gross misrepresentations related to the elimination of the state law claim for employment discrimination (discussed in my last post, here).
The misrepresentations started in the General Assembly where the Republican sponsors repeatedly asserted that nothing in HB2 would take away existing rights. Even when directly questioned about the elimination of the state law wrongful discharge claim for employment discrimination, Republican legislators responded that it would have no effect. [I am basing the foregoing primarily on tweets from reporters on the scene as I was not in Raleigh for the “debate.”]
The misrepresentations continued when Gov. McCrory issued his statement announcing he had signed HB2 into law. In that statement, he stated “[a]lthough other items included in this bill should have waited until regular session, this bill does not change existing rights under state or federal law.” (emphasis added). Gov. McCrory doubled down on this misrepresentation in a document entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law” (here), which was posted on his official website on Friday, March 25. In this document, question #2 is “Does this bill take away existing protections for individuals in North Carolina?” Gov. McCrory’s answer: “No.”
Put simply, McCrory’s statements are clearly and undeniably false.
However, the most persistent voice in misrepresenting the impact of this provision of HB 2 has been (perhaps not surprisingly) HB 2’s author and sponsor, Rep. Dan Bishop (R-Mecklenburg). Rep. Bishop is an attorney. When pressed by a reporter on whether HB2 eliminated the longstanding state law claim for wrongful discharge, Rep. Bishop acknowledged that it likely did, but said “who cares” because you could get the same remedies under federal law. In a separate interview, Rep. Bishop said the elimination of the state law claim “is an exceedingly minor procedural difference."
Rep. Bishop graduated from UNC-CH law with high honors, so I will assume he does actually understand the differences between (1) substantive and procedural law; and (2) federal and state employment discrimination law. But assuming he understands the distinctions, one must conclude that he is intentionally misrepresenting the impact.
Whether the elimination of a state law claim is “substantive” or “an exceedingly minor procedural difference” is beyond rational debate. Having 28 days to respond to a motion instead of 30 days is an exceedingly minor procedural difference. Eliminating a state law claim that has existed for 34 years, is indisputably substantive and significant.
I’ll take up the substantive differences between federal employment discrimination claims under Title VII (or the ADEA) versus North Carolina’s now defunct claim for wrongful discharge in violation of public policy premised on EEPA in my next post.
Monday, March 28, 2016
Wednesday in North Carolina
It has been an interesting week in North Carolina. Last Wednesday, the ultra-conservative Republican super majority in the NC General Assembly called itself into a special “emergency” session to overturn an ordinance passed by the City of Charlotte on February 22. Charlotte (like many other cities) has long had a non-discrimination ordinance (section 12-58 of the Charlotte City Code), which prohibited discrimination in public accommodations on the basis of “race, color, religion, or national origin.” The new ordinance simply added “sex, marital status, familial status, sexual orientation, gender identity, [and] gender expression” to the existing list of protected categories. Additionally, the new ordinance deleted section 12-59 of the Charlotte City Code which prohibited sex discrimination in public accommodations but also provided as follows:
(b) This section shall not apply to the following:
(1) Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.
(2) YMCA, YWCA and similar types of dormitory lodging facilities.
(3) A private club or other establishment not, in fact, open to the public.
This rather innocuous change in a long-standing provision of the Charlotte City Code became known as the “bathroom ordinance.” So vile was the bathroom ordinance that it was necessary for the legislature to convene a special session to overturn it before it took effect on April 1.Governor Pat McCrory (R) (who served has a member of the Charlotte City Council and as mayor for a total of 20 years, all without questioning the legality of the then-LGBT free non-discrimination ordinance), declined to call the General Assembly into special session because he feared (no doubt based on inside knowledge) that the General Assembly, if summoned, would pass legislation that was far broader than the “bathroom ordinance.”
The Republican legislature, not to be stymied, called itself into special session, which it scheduled for Wednesday, March 23, 2016. Despite requests from members of the General Assembly and the media, the powers that be in the General Assembly refused to release a draft of the legislation that would be introduced on March 23 claiming that it was not yet complete. When the legislature convened around 10:00 am, the bill (House Bill 2 or “HB 2”) was introduced and made public for the first time. [The date stamp on the last page “(03/16)” makes fairly clear that the bill had been drafted at least in substantial part well in advance.] HB 2 was 5 single spaced pages of fairly dense statutory language. The first vote was held 5 minutes after it was introduced. There was a 30 minute public comment period for those who were able to get to Raleigh to testify. Then some limited debate. Then two more votes, culminating in final passage by the House at about 3:30 pm. The Senate took up the bill at about 4:45, had an initial vote and then another 30 minute public comment period. After it became clear that the Republican leadership was not interested in anything the other side had to say (according to Senate Democrats) all of the 15 Democrats walked out in protest. The chair called a final vote and HB 2 passed by a vote of 32-0. This was roughly 7:00 pm. Although Governor McCrory had 30 days to consider whether or not to sign HB 2 into law, he signed it at 9:57 pm that night.
In just under 12 hours from introduction to gubernatorial signature, North Carolina enacted what many have called the most aggressively anti-LGBT legislation in the country.
ALL local non-discrimination ordinances were banished. All local governments in NC were prohibited from protecting any group not protected by state law. In the place of inclusive local laws (passed by the duly elected representative of those local jurisdictions), the General Assembly created a statewide public accommodation law was passed which protects only race, national origin, color, religion, and BIOLOGICAL sex. It also mandated that all public restrooms in NC (including in public schools and universities) must be single sex and that a person may only use the restroom designated for his or her BIOLOGICAL SEX, as listed on his or her birth certificate.
Not content to stop there, HB 2 also contained a slew of EMPLOYMENT related provisions, despite the fact that Charlotte’s ordinance had nothing to do with employment. More on those later.
So, North Carolina – once the most progressive of southern states – is now, perhaps, the most regressive on LGBT rights.
Perhaps it was fitting that this special session that culminated in HB 2 was on Wednesday of Christian Holy Week, the day on which Judas Iscariot betrayed Jesus. I cannot think of a bigger betrayal of the teachings of the Jesus I learned about in Sunday School than legalizing discrimination against a minority group.
Thursday, March 24, 2016
Up with Cuba
Given all the brouhaha about Obama’s trip, I wanted to comment some on Cuba. I was born in Santiago (the easternmost and most revolutionary part of the island) and have been going back over the past 12 years, presenting and publishing there.
This link (translatable) has some basics about the Cuban legal system. The two main professional organizations for lawyers are the Unión Nacional de Juristas de Cuba and the Organización Nacional de Bufetes Colectivos. The Unión seems to focus more on policy and academic issues while the ONBC includes almost all practicing lawyers who work in state-organized firms. These organizations regularly hold conference and events on legal themes. I was thinking of attending this conference on gender, at which I’ve previously seen many foreign academics.
As I see it, many Cuban-American emigrants remain in a state of complicated and belated mourning, something that will begin to end only after Fidel Castro passes away. Elsewhere I’ve argued that many in my generation suffer from the Cuban-American Oedipal conflict. Parents and grandparents passed on their displacement trauma (no doubt justified) to their kids, who then – out of a sense of filial piety and ethnic identification – keep from engaging with Cuba (the real Cuba – not their parents’ introjected loss) so as to form their own opinions on these issues. Ironically, avoiding Cuba keeps them from more fully understanding what their families lost by leaving. (I’m an Oedipal victor, although that can seem like a pyrrhic victory :))
Sunday, March 20, 2016
Business model changes at law schools
Law schools are experimenting with ways to diversify revenue in response to declining state support and tuition shortfalls, including those caused by smaller entering classes. This report reviews the range of things that schools have done. A common strategy has been to supplement the juris doctorate degree with other programs. This one does a good job of surveying these programs.
I’d be interested in hearing – on- or off-line – about any successes or failures of schools in generating new income streams. The corporatization of the academy makes me queasy, but law schools do need to find new funding models.
Cf - for two good argument about the potential harms of markets:
(i) Check out Michael Sandel’s What Money Can't Buy. It makes the point that some goods are actually changed by being distributed though a market, i.e., if you can buy a Nobel prize, is it the same good? If – as I did – you loved his Justice class, you’ll enjoy the book.
(ii) See Posner’s critical comments on the marketization of the legal profession. He addresses the practice of law rather than legal education, but the same concerns apply. In effect, he is making Sandel’s argument. Coming from Posner, I found the idea that too much market freedom can lead to untoward (and unprofessional) behavior on the part of lawyers ironic, indeed, almost poignant.
Thursday, March 17, 2016
Thinking about financial exigency
Hopefully, none of us will experience financial exigency in an academic unit, but here are some sources about the legal and administrative standards used to restructure academic programs.
This working paper published by the American Association of Higher Education (1996) lays out three common kinds of financial metrics for distress in an academic unit: (i) operating results, e.g., enrollment trends, cash flow, budgetary allocations; (ii) net worth; and (iii) bond ratings. The standards seem fuzzy, contestable, highly local, and fact-specific.
This American Association of University Professors report has case studies.
Mark Strasser (Capital University Law School) has published Tenure, Financial Exigency, and the Future of American Law Schools, 59 Wayne Law Review 269-309 (2013). It examines dismissals of tenured faculty from other disciplines and considers how this issue might play out in a law school context.
Like so much of academic administration, how different schools handle this issue varies substantially. Recent examples of academic systems that have considered or implemented financial exigency include Louisiana State and Chicago State.
Other schools have explored ways of giving administrators more freedom to restructure academic programs short of formal determinations of financial exigency. Examples include places in Wisconsin and Georgia.
Monday, February 15, 2016
The Peter Principle and the Supreme Court
I have not waded into the discussion of Justice Scalia's death and what happens next, although I commend what others have written here. I am in complete agreement with three things Richard Friedman (Michigan) wrote on the ConLawProf listserv: 1) This debate is entirely political and if the partisan institutional positions were flipped, so would the partisan institutional arguments; 2) The President can nominate whoever he wants before January 20, 2017, and the Senate can reject or refuse to act on any nomination within that time; 3) Senate custom is dead.
Given that (especially # 2), some thoughts/questions as we go forward:1) (The question that gives the post its title): Does it really matter that some potential highly-qualified-to-force-the-Senate's-hand nominee (notably Sri Srinivasan) was confirmed to a lower court 97-0? Putting aside that this is all politics. Is it truly irrational for a Senator to conclude that someone could be qualified for a lower federal court and not for SCOTUS? For constitutional purposes, there is no difference in qualifications. (In fact, nothing in Article III requires appointment to any particular court, as opposed to confirmation as a federal judge). But Congress having established a statutory regime in which a judge must be separately nominated and confirmed to every seat, can't a Senator believe that someone who is good enough to be a lower-court judge is not acceptable as a SCOTUS justice? I am not saying that is the case with Srinivasan. It's just that the suggestion that Senate Republicans would accept (or be politically compelled, or embarrassed into accepting) someone because of the prior vote does not follow.
A recess appointment would likely be construed by a Republican-controlled Senate, not to mention Republican candidates for President, as subverting the intention of the nomination process laid out by the Constitution. That’s an argument—with some merit—that Obama surely wants to avoid as the White House simultaneously looks to lean heavily on the president’s constitutional responsibility to choose a justice and the Senate’s constitutional duty to confirm a reasonable selection.
But couldn't the White House successfully frame it as follows: "The Senate Majority Leader announced, within less than one day of Justice Scalia's death, that it would not even vote on any nomination the President makes, despite his constitutionally established term continuing for another 11 months. Given this, the decision to make a recess appointment reflects not a subversion of the process, but taking the Majority Leader at his word that no confirmation could happen with the Senate in session."
3) Here is an imprecise historical analogue that, at least in counter-factual, captures a lot of what is happening politically (Michael Dorf wrote about this at Dorf on Law, although I cannot find the post). Thurgood Marshall retired in summer 1991.* And while Marshall reportedly did not want to give the appointment to George H.W. Bush, at that point it seemed certain that Bush would be re-elected, so there was no point in waiting (plus, all indications are that Marshall stayed too long, anyway and his health was failing). Of course, things had changed dramatically just one year later--it was clear the President was in trouble and he would go on to lose that November. The counter-factual is always what if Marshall could have hung around for just one more term, until say, June 1992; no one suggests he needed to stay until June 1993, after Clinton had taken office (Marshall died four days after Clinton was inaugurated). The implication is that by June 1992, no nominee would have been confirmed until after November--and once Bush lost, the nomination would await the new President. Of course, this would have put us in our current spot in reverse--a soon-to-be-leaving-office Republican President and a Democratic-opposition Senate refusing to confirm any nominee until we see what happens in November.
[*] Yes, not an election year. But surely the line cannot be January 1, especially when elections have already begun, particularly by the party out of power, by the previous summer.
Saturday, February 13, 2016
What's Obama's Best Move?
Monday, February 01, 2016
Hello from Iowa! OR: Democracy, I am in it.
Hi everyone. It's good to be back! This month; I'll be blogging about my very shortly forthcoming book (The Rule of Law in the Real World, coming out from Cambridge on February 11. Buy! Buy!), constitutional things, jurisprudence things, data things...
But tonight, I'm in Iowa. So I'll be live-blogging the caucus, which officially starts in 10 minutes. I'm on the iPhone typepad interface, so I can't be responsible and break the post (it also looks like I can't put up photos? Later.) but you all really want to read about the cute and actually democratic-ish side of American politics.
So here goes some good-old-fashioned liveblogging. This might just be really boring: for example, it's 6:53 now, and I'm in a very, very long line (photo later) with my wife and several colleagues. If a blizzard hits and this massive crowd gets trapped, I intend to eat the republicans first (they eat more meat; they're probably tastier). But here's to hope that there are inspiring speeches, mass shifts, maybe even a runaway caucus that tries to nominate Elizabeth Warren or Julian Castro (my classmate!), or, you know, me or something. And no cannibalism.
In case you're curious, I'm caucusing for Hillary.
7:04. The massive Democrat line just passed one of the Republican rooms. It's almost empty. Iowa City! It almost feels like being back in California, except for the likelihood of a blizzard and cannibalism.
7:29. Still in line. Being stared at disapprovingly by the people behind us, probably thanks to the suggestion that we caucus for Martin O'Malley as a pity play. There's also a Hillary campaign worker reminding everyone of which precinct they need to be be in to stand in this line---sadly with no precinct map in hand, so I really have no clue if this is the right one.
7:37. The DMV screwed up my wife's registration. I kinda want to rush to find a judge for some last-minute litigation, in fine American democracy style, but it turns out she can register on the spot. Alas. Also, she's a Bernie supporter.
7:41. Got in the massive auditorium. Lost my spouse to the other side of the room, gained another colleague. The Bernie side of the room is probably about 50% bigger than the Hillary side at the moment---and the O'Malley corner is about 10 children.
7:46. They announced that there were 15 people who arrived too late, and that we needed to vote on whether they're to be allowed in. Being Midwestern college town liberals, you can probably guess the result.
Now they're calling the meeting to order, and the person doing so is nominating herself as permanent chair. Nobody can hear in this echoey junior high gym, so the result is yes by acclamation. I hope we haven't just accidentally crowned Donald Trump as King.
Solicitation for money. Can't tell what for. Echoes. The party, I'd guess. Or King Trump.
7:49. Apparently there are undecided people somewhere in here. Also, I accidentally tripped a child. Just like a Hillary supporter.
7:52. "[inaudible] [inaudible] unlike the Republicans [cheers]!" My second accidental child-tripping of the day. I wonder if Republican children are less runney-aroundey?
7:55. "Can you hear anything they're saying?" "No, I gave up." A metaphor for political polarization?
Also, the Bernie people are lots closer to the microphone, presumably they can hear better. Hmm... maybe I can find an insomniac judge who thinks that's a reason to throw out the likely result?
7:59. I cheer when all the other people around me cheer. Still hoping it's not for Trump.
8:01. Apparently there are 859 people in this room.
8:04. Chanting. Lots of chanting. Somehow the Hillary and Bernie camps have not yet decided on me as a compromise candidate.
8:08. There are numbered index cards we all have, but the actual tallying is (I think) being conducted by people counting one another by hand. Maybe? It's hard to tell. Democracy is confusing.
8:17. Someone on the ground team just dropped by to say they're counting now. Also "we're really close in numbers, nobody leave." Apparently we need 15% to get a delegate from the precinct, and we're at about 25% now? Clearly a Bernie district.
8:21. 538 says both parties are really close, within 3-4 percentage points right now. Of course, if they're all counting the way this room seems to be, I don't trust that very much...
8:22. Someone just announced about 10 minutes to get counts in. Still not clear who is doing the counting (or how they have an incentive to do it honestly, except I guess that they're Midwestern college town liberals? Also, I suppose if the total votes don't add up, that could get ugly.). Also 538 says that in the biggest Latino county in Iowa O'Malley is beating Sanders. (That's what happens when you make nativist remarks about immigration right at the start of the campaign, yo.
8:25. In 10 minutes they're going to "finish the first alignment," and then the groups that "may not be viable" get to realign. I think that's what that 15% number is.
Right now it's Hillary 259 people, Bernie 500-some people, and O'Malley... 17. Apparently the O'Malley people and the undecideds now get to go around talking to people, and everyone else has to stay put and look friendly and electable or something.
8:28 speaker is exhorting people from B and H camps to stick around "or you will lose people, and I will have to count again." M camp being exhorted to bloody well do something. H and B camps chanting at M camp. Not sure what the undecided people are doing or what exactly is supposed to be convincing them to do something.
8:30 we just accepted platform resolutions. I have no idea what's in them. Could still be King Trump.
8:36. Someone on the mic is talking about how "Iowa is the best place in the world to live," and she's been voting since 18, and other things. Is she campaigning for someone? Is that allowed? Can I get up there and talk? Dunno. They should print a rulebook. Is it Robert's Rules? Wait, I think she's the one in charge still. The one who had us vote on a bunch of things we couldn't hear.
All the people with press badges (handwritten) look like children. Undergrads? Am I old? Is that why I'm on the Hillary side?
8:39. They just announced 4 delegates for Hillary, 8 for Bernie. Is it over? I think it's over. People are leaving. Democracy is done for the night.
8:48. Aftermath. My wife is signing up to be a delegate. Someone has platform resolutions, is apparently not aware that they evidently passed. Also, I just got drafted to be a delegate too. I think I'm supposed to sign something.
9:01. Signed the thing. Going home. Democratic participation complete.
Postscript: word is O'Malley's already gone. Also, the Iowa City school we just finished caucusing in turns out to have a bunch of boxes with air filters supplied by "Iowa Prison Industries." Hope enough others in the roomful of liberals who just were here saw that, and care enough to put a stop to it with that whole democracy thing we just did.
The air of American democracy itself is supplied by prison labor.
Also, I should add that the two colleagues are also beloved friends, wonderful people, and unusually good-looking.
The prison labor:
Friday, January 29, 2016
Even Wiseguys Need Health Insurance
Goodbye to Vincent Albert "Buddy" Cianci, Jr. -- a man who, whatever you think of him, certainly left his mark on the City of Providence. I would say that he was a Providence original if I didn't recall that though he was born in Providence he was a true son of Cranston and then, only later, the Mayor of Providence.
My absolute favorite excerpts from the eventual trial transcripts of "Operation Plunder Dome" (essentially, a RICO tapes case) were the parts discussing the selling points of various "no-show" or "low-show" jobs distributed by then Mayor Cianci. Steven Antonson, a Cianci-appointed City of Providence Building Board member, wasn't quite lucky enough to get that no-show or low-show appointment, however. Apparently, then Mayor Cianci really wanted him to show at Building Board meetings involving Providence's University Club and to wholeheartedly oppose all University Club petitions for building variances necessary for a pending re-model unless and until Mayor Cianci was offered a free lifetime membership in the University Club. What made it pure Buddy Cianci was not the apparent extortion but the ironic twist that the chief value of free lifetime membership in Providence's University Club appears to have been as payback for a rejected Buddy Cianci membership application to the Providence University Club in the early 1970's, decades earlier.
My favorite part of Buddy Cianci's sell of the Building Board appointment was Mayor Cianci's schooling of Steven Antonson on why it would be a smart move to accept it: "Remember, I appoint people to this board. You get Blue Cross. You get a check. You always said safety was important. Well, this is it."
Yes, Steven Antonson was among several would be appointees who chased the Mayor of Providence relentlessly for health insurance. Even wiseguys need health insurance. Go figure. Or, as they say on South Coast, "Go Figah."
Steven Antonson eventually wore a wire and proved to be a fertile source of Buddy Cianci stories, many more of which you might glean from Mike Stanton's 2003 book, The Prince of Providence: The True Story of Buddy Cianci, America's Most Notorious Mayor, Some Wiseguys, and the Feds.
Tuesday, January 26, 2016
Is It TB That Ails Us?
Last week, the New York Times reported a tuberculosis outbreak in Marion Alabama so severe that TB incidence in Marion is now at a rate that exceeds TB incidence in much of the developing world. Marion is the county seat of Perry County and it is saying something when a city of roughly 3,600 people has had 20 cases of active TB diagnosed in the last two years alone, producing two TB related deaths. Those who count TB infections do not typically count latent infections -- relatively easily if time-consumingly treated -- though these have been documented in a further two dozen people.
Now, if there have been 20 active cases, the latent infection rate is likely much higher than that, but no one knows how much higher since screening for latent TB infection in the general population is not standard procedure in the United States. Why such screening for latent TB has not been pursued earlier in Alabama is a more difficult question. Long before the New York Times arrived on the scene, TB cases have been unusually high in Alabama. The number of tuberculosis cases increased in 2014 in Alabama, but decreased nationwide. Across the nation, the number of new infections decreased by more than 2 percent. In 2014, there were 133 cases of tuberculosis in Alabama, compared to 108 the year before. The TB trajectory in Alabama has not been good for some time.
The reasons for this are hard to parse. As the New York Times points out, there is a tradition of limited access to health care in this low income rural community where lack of reliable transportation to health care venues looms as one of the chief causes of limited health care access. Since the data shows that those with transportation -- disproportionately the insured -- use that transportation to leave the community for health care, leaving the uninsured lacking transportation to seek care locally, it is no wonder 54 of Alabama's 55 rural counties have official shortages of primary care providers. After all, good payor mix in your patient panel is one of the ingredients to successful sustainable practice.
A people who lack the resources and opportunity to access care have a limited culture of care. The disincentives to leave the community, even when able to do so, are complicated by a general distrust of health care providers, particularly among African American residents. Ironically, a provider-patient relationship built on trust may be the scarcest health care resource of all in Marion.
But the situation is more complicated than this even, since the conversion rate between latent TB infection and active (or manifest) TB infection is not evenly distributed among the TB exposed population. Drug users, alcoholics, and, in particular, those who are HIV positive are particularly at risk of TB exposure converting into active TB. Drug use, particularly use of injectables like heroin, appears to have more than a toe hold in Marion. The Marion refrain "I don't want nobody knowing my business" in response to public health attempts at contact tracing for those with active TB may make more sense evaluated in light of access or lack thereof to drug treatment programs in Marion.
On the international stage, public health authorities struggle with the prevalence of active TB infection in injectable drug using and HIV positive populations. In the developing world, there is some evidence that financial incentives to promote screening and successful treatment, if required, have begun to make a dent in promoting the completion of TB treatment. Interestingly, TB screening incentives are reported as now being offered to the entire Marion community and not exclusively to relatively high risk sub-populations such as the homeless or self-disclosed injectable drug users.
Is it that the United States Public Health Service and the Alabama State Department of Public Health as well as county public health officials are unaware that broad screening incentives are not the norm? Or, is it that in a community of a few thousand, the only way to screen at significant levels is to create an incentive for all to be screened in a de-stigmatized way? Whether it is folly or it is genius, only time will tell. But if it is the syndemic of injectable drug use and TB or HIV and TB masquerading as an outbreak of TB alone that ails Marion, it will take far more than screening incentive payments and TB treatment incentive payments to right what is wrong with Marion -- emblematic of so much that is amiss in rural low income America.
Sunday, January 17, 2016
What's a Hospitalist?
Thank you for the opportunity to guest blog here for the remainder of the month. I hope to blog here on all things health law, health care regulation, and health policy related.
Last week, I participated in a discussion of primary care provider supply on KCUR, Kansas City's local public radio affiliate. I was pleased to participate and enjoyed the conversation with my fellow panelist, Dr. Michael Munger and with our host Gina Kaufman. I suppose I was invited to participate because I just won't be quiet about primary care provider supply, medical school education, Kaiser Permanente's recent announcement of its decision to fix the broken pipeline of primary care providers representative of and responsive to communities with the greatest shortages by opening a proprietary medical school in southern California and on and on.
Today, I want to focus on a point made later in the radio program when listener call-in questions were fielded. One self-described "older" caller disparaged the rise of hospitalists and the use of hospitalists in places where they were previously unknown, including rural settings. Forgive me KCUR host Gina Kaufman, but the most interesting thing about the whole exchange with the call-in listener was that you did not seem to know who or what a hospitalist is until, apparently, you were guided to some understanding by someone in the studio. I note this without dismay for two reasons. First, unless and until you have experienced a hospitalization for something other than scheduled elective surgery or a planned normal birth, you may not have been introduced to the new normal: acute in-patient care delivered by a physician typically previously unknown to you, a provider often employed by the hospital itself, and a provider you are unlikely to ever encounter again outside of an acute care in-patient setting. Or, it could have been that the use of hospitalists in America's acute care in-patient facilities is so widespread that the term has become obsolete to lay people, though recognized inside baseball as the fastest growing medical specialty. Either way, the caller's point was that quality care should not be based on a system of strangers treating strangers. The easy answer to that is that electronic medical records will make us all strangers no more and that care by strangers is cost effective.
Whatever you make of the alleged impersonalism of modern health care, the caller may have been on to something in noting that there is an ongoing problem with the hand off between hospitalist provided hospital based acute care and the ongoing treatment and monitoring of things like chronic disease required of community based medicine. Our hand offs are problematic. Less expensive care in the in-patient acute care setting under the hospitalist combined with the costs of poorly integrated transitions to community based care on discharge can lead to higher community care based expenses along with the cost of unnecessary human suffering pushed elsewhere. So much of our health care system is financed and delivered under principles designed to push costs elsewhere in the system rather than acknowledge that poorly integrated care costs us all but costs some of us more than others.
So, whether you are in the "What's a hospitalist?" camp or the "You can see someone beside a hospitalist during an acute care admission?" camp, we all ought to be interested in valuing and prioritizing the hand off from acute in-patient care to community based care, where the real rubber meets the road.
Tuesday, November 03, 2015
Go to a Different Blog
It's great to be here!
For my first post this month, I'm going to do something odd -- tell you to go to *different* blog. (Hopefully Howard and the Prawfs gang won't take away my keys!) That's right: today is Election Day, and the students in the University of Kentucky's Election Law Society are running an election analysis blog. They'll be posting about election law issues that will arise during the vote casting and counting process -- for Kentucky elections and nationwide. Every post is vetted by me first, so (hopefully) they are substantively sound.
So go vote -- and then hop on over to http://www.uky.edu/electionlaw for a jolly-good Election Day time!
Monday, October 26, 2015
Multiplying Loaves and Fishes: Why Congressional Debt-Ceiling Brinkmanship May Plunge Us into Economic Depression and How President Obama Can Save Us from Going Back to the Breadlines
The following post is by Jessica Berch and Chad DeVeaux (both of Concordia). They will be guest-blogging in December. But the timing of the new debt-ceiling debate made an early post appropriate.
The Gospels tell us that Jesus multiplied “five loaves and two fishes,” providing a bounty sufficient to feed 5,000 hungry souls. Apparently, House Republicans expect President Obama to perform a similar miracle. On November 3, the Treasury will exhaust its funds. If Congress does not raise the debt ceiling by that date, authorizing the Government to borrow money, the nation may face an unprecedented economic cataclysm.
As New York Magazine’s Jonathan Chait has observed, only “the most ideologically hardened or borderline sociopath” would “weaponize the debt ceiling”; to do so, one “must be willing to inflict harm on millions of innocent people.” Bloomberg Business explained that a federal default would be orders of magnitude worse than the Great Recession of 2008: “The $12 trillion of outstanding Government debt is 23 times the $517 billion Lehman owed when it filed for bankruptcy on Sept. 15, 2008.”
Following up on earlier work, The Fourth Zone of Presidential Power, (Conn. L. Rev.), we are writing an article entitled Once More unto the (Fiscal) Breach, addressing the president’s options in this latest crisis.
Federal statutes command the president to implement a myriad of programs and projects. Other laws instruct him to obtain the revenue necessary to subsidize these endeavors by collecting taxes and borrowing funds. The debt-ceiling statute caps the amount of money the Government can borrow at any particular time. Based on the level of revenue the Government is permitted to collect through taxation, basic arithmetic dictates that the president will need to borrow funds exceeding the debt limit to comply with Congress’s appropriation mandates.
If Congress does not raise the debt-ceiling by November 3, the president will face a no-win scenario that Professors Neil Buchanan and Michael Dorf have coined the “trilemma.” He will be forced to choose among three options. He may: (1) ignore the appropriations statutes and cancel spending programs; (2) employ the so-called “nuclear option”—disregard the debt ceiling and borrow sufficient funds to pay for Congress’s appropriations; or (3) unilaterally raise tax rates to produce sufficient revenue to fund Congress’s appropriations. Each of these choices violates an express statutory command.
And each of these choices is also implicitly authorized by the other commands. The power “to execute” a law “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” Hamdan v. Rumsfeld, 548 U.S. 557, 591 (2006).
Professors Buchanan and Dorf argue that any choice the president makes will violate the Constitution “because he will have failed to execute at least one duly enacted law of the United States.” As Professor Buchanan recently noted, “He has nothing but unconstitutional choices.”
The true test of the president’s options in the trilemma lies within the labyrinth of Justice Jackson’s seminal opinion in the Youngstown Steel Seizure Case. As the Supreme Court reaffirmed last June, “in considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework . . . .” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083 (2015). Evaluation of the president’s options in the impending standoff constitutes a paradigmatic question of the scope of presidential power.
In Youngstown, Justice Jackson asserted that “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous three-zone template to evaluate the scope of executive power.
In the first zone, “the president acts pursuant to . . . express or implied” congressional authorization. Endowed with such legislative approval, the president’s power “is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” In the second zone, “the president acts in absence of either a congressional grant or denial of authority.” In this “zone of twilight,” Congress and the president possess authority that is either “concurrent” or “its distribution is uncertain.” Zone three involves situations where “the president takes measures incompatible with the express or implied will of Congress.” Here, “his power is at its lowest ebb, for . . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
At first blush, each of the president’s three options appears to fall into the third zone of Justice Jackson’s taxonomy. Short of multiplying loaves and fishes, every conceivable alternative—unilaterally cancelling federal programs, increasing taxation, or borrowing more money—stands in direct conflict with an express congressional command. Article I bestows the powers to “tax,” “spend,” and “borrow” exclusively upon Congress. Thus, such authority is far removed from those plenary powers that the president may wield irrespective of congressional will.
Professor Lawrence Tribe echoed this reasoning, noting that “the president’s power drops . . . to its ‘lowest ebb’ when exercised against the express will of Congress.” So, “if the president could usurp the congressional power to borrow, what would stop him from taking over all [of Congress’s] other powers, as well?”
Again, we disagree. On closer examination, the standoffs do not fit within any of the zones identified by Justice Jackson.
Professors Tribe, Buchanan, and Dorf analyze each of the president’s options and Congress’s corresponding legislative commands in isolation. But this view ignores the more nuanced conception of presidential power implicit in Justice Jackson’s framework. As Jackson observed, “the actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.” For this reason, the Court unanimously recognized in Dames & Moore v. Regan, that in applying Youngstown’s principles, when multiple statutes bear upon the president’s powers, the scope of his authority cannot be gleaned by looking at any single law in isolation, but from careful consideration of “the general tenor” of all of Congress’s commands viewed collectively.
Justice Jackson’s three zones contemplate coherent legislative action falling within “a spectrum running from explicit congressional authorization to explicit congressional prohibition.” Congress may sanction presidential action, it may be silent on the subject, or it may prohibit it. Congressional acts in conformity with any of these three coherent choices will affect the president’s powers accordingly. But in the impending trilemma, Congress’s acts—viewed collectively—present the president with a paradox. Congress has directed the president to take specified action and simultaneously forbade him from taking that very same action. Such contradictory legislative instructions cannot find a home anywhere within Youngstown’s existing taxonomy. As such, the present standoff requires the expansion of Youngstown’s spectrum to accommodate a previously uncontemplated fourth zone of presidential power.
So what principles should apply in this new fourth zone of power?
Dames & Moore recognized that congressional action “evinc[ing] legislative intent to accord the president broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility.’” In cases falling within the traditional three-zone scheme, such legislative conduct is only considered “pertinent when the president’s action falls within the second [zone]—that is, when he ‘acts in absence of either a congressional grant or denial of authority.’” Medellín v. Texas, 552 U.S. 491, 528 (2008). This is so because when Congress commands the president to undertake (or refrain from undertaking) a particular action, the Constitution normally affords him no discretion. He “must confine himself to his executive duties—to obey and execute, not make the laws.”
But when Congress gives the president contradictory commands, the president cannot simply “obey and execute” Congress’s instructions; obeying one command necessarily requires disobeying another. For this reason, zone two’s invitation principle should be applied in the fourth zone of the Youngstown scheme. Contradictory legislative instructions, by their nature, implicitly “accord the president broad discretion.”
The president’s plenary power “to execute” a law promulgated by Congress “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” And “it is a flawed and unreasonable construction” to read the Acts of Congress “in a manner that demands the impossible.” Thus, when Congress commands the president to complete a particular task but expressly denies him those powers “essential to its due exercise,” the only way to construe these conflicting legislative instructions in a manner that does not “demand the impossible” is to infer a congressional intent to “accord the president broad discretion”—to entrust him to make tradeoffs to best accommodate the conflicting mandates.
In the trilemma, the interaction between the debt-ceiling statute and the relevant taxing and spending laws render compliance with all three statutory mandates impossible. Congress commanded the president to complete a task—implement specified programs—but denied him the “authorities essential to its due exercise”—the power to acquire sufficient revenue to pay for the mandated expenditures.
Because statutes are not interpreted “in a manner that demands the impossible,” “the general tenor” of Congress’s commands, read collectively, inherently “‘invite’ ‘measures on independent presidential responsibility.’”
Since the president cannot fully comply with all of Congress’s commands, the statutory impasse invests the president with discretion to implement any of the three options addressed above. He may cancel federal programs to reduce spending, direct the Treasury to borrow funds in excess of the debt ceiling, or even order modest tax increases to satisfy the Government’s fiscal obligations. But he should not stand idly by and allow Congress to plunge us into a Global Economic Depression.