PrawfsBlawg

Making easy cases complicated

The Tenth Circuit last week decided Cressman v. Thompson, reversing the 12(b)(6) dismissal of a complaint challenging, on First Amendment grounds, the "Sacred Rain Arrow" image on Oklahoma's license plates. The decision, while correct, seems a lot more complcated than it needed to be on several lines, but also illustrates some interesting points.

1) The court spends some initial time on standing, not because there is any real doubt about an injury, but over whether the six state officials were the proper defendants, which the court squeezed into the traceability prong. In other words, the court treated as part of traceability (i.e., causation) whether each named officer defendant is responsible for enforcing the allegedly unconstitutional law that the plaintiff is challenging.

But this strikes me as another example of standing swallowing the entire analysis in anticipatory constitutional litigation. In damages actions, the suability/liability of the defendant under the applicable law is a merits issue; there is no reason for it to become an Article III issue in an Ex Parte Young equitable action such as this. The court does acknowledge the overlap between standing and Ex Parte Young/sovereign immunity, as the propriety of the named defendant is the "common denominator" of both inquiries. To me, however, that just shows that what should be a single merits inquiry--who is liable to the plaintiff--is being misconstrued in jurisdictional terms under multiple doctrines.

2) There is a lot of discussion of Twiqbal plausibility over what should actually be legal issues and conclusion--whether  the picture is symbolic speech (because it would be understood as stating a particularized message) and whether having to display the image (or pay extra money for a specialty plate) constitutes compelled speech under Wooley v. Maynard. None of these are facts subject to plausibility analysis. The court should not be concerned with the plausibility of the plaintiff's legal arguments, only the correctness of those legal arguments. All the plaintiff should have to plead is that he is being made to display the symbol or pay money to avoid displaying it (which really is unconstested); the rest is legal analysis.

3) This case does expose a few problems with various aspects of speech doctrine. One is how clear or articulable a drawing or symbol must be to constitute symbolic speech; there is a split as to the effect that Hurley (which held that speech need not contain a single clearly articulable message) has on Spence (which suggest that symbols must in order to be protected). Another is whether recent government speech cases undermine or overrule compelled speech cases such as Wooley. A third, which the court was more emphatic, is whether Wooley applies to all compelled messages or only ideological ones (the district court read Wooley to apply only to ideological messages, such as "Live Free or Die"). The court mostly avoided resolving these legal issues by falling back on the plausibility of the plaintiff's allegations.

This case really does not appear to be a close First Amendment cases--it is as close to being on all fours with Wooley as one can get and I frankly am surprised a state would still believe it could compel someone to display any message on a license plate. For whatever reason, both the district court and the court of appeals (even in reaching the right conclusion) made this case more difficult than it needed to be.

Repealing the Federal Eminent Domain Power

Ilya Somin notes the renewed House action on the Private Property Rights Protection Act, a federal bill that would eliminate funding for economic development takings like those that would be forbidden by the Kelo dissent.  As Ilya also notes, the bill seems unlikely to become law, but the fact that there is any activity at all is a sign that at least some members of Congress would like to cast a symbolic vote for narrowing eminent domain authority, even if it's an authority that the judiciary has upheld.

If so, may I suggest a new way for members of Congress to do that?  By repealing the federal eminent domain power.  Since 1875, the Supreme Court has held that the federal government has the power to take land through eminent domain.  But as I explain at length in the most recent issue of the Yale Law Journal, that decision was probably wrong as an original matter, and was certainly inconsistent with the very widespread understanding and tradition from the Founding until the Civil War.  Congress repeatedly avoided using eminent domain (except in the District and territories); when it needed land, the states took it.  Even the Supreme Court agreed.

The most that can be said for the modern understanding is that the Supreme Court has upheld it.  But the supporters of the Private Property Rights Protection Act have shown that they're willing to pursue their own views of the proper scope of eminent domain, even if the judiciary would uphold a broader one.  So perhaps

If that's too radical, there's an alternative.  Current federal law doesn't require any specific Congressional authorization for a federal taking.  Under 40 U.S.C. 3113:

An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so.

At a minimum, the House could propose a bill repealing this statute, and requiring that exercises of constitutionally dubious federal eminent domain authority be specifically authorized by Congress.

Today's Decisions

I've noted a few of these points already on Twitter, but here are some items of minor interest to me in this morning's decisions from the Supreme Court.  (For more thorough coverage, go to SCOTUSBlog; for my own more thorough thoughts, come visit here later.)

Alleyne:

• Justice Thomas writes an opinion joined by the four "liberal" Justices.  I can't think of a time this has happened since Atlantic Sounding v. Townsend and United States v. Bajakajian, and both of those were before Justices Sotomayor and Kagan joined the Court.  If that's right, I'm pretty sure this is the first time Justice Thomas has assigned a majority opinion as the senior-most Justice.  [UPDATE:  As a commenter points out, not actually the first time for a CT assignment, or even for this lineup.  But still unusual.]
• It's interesting that Justice Alito launches a full-on criticism of Apprendi in his dissent (including a citation to the brilliant Jonathan Mitchell, former GMU law professor and current SG of Texas); but it's also interesting that none of the other dissenters (including the Chief and Justice Kennedy) join in.
• Not for the first time, I despair of the Court having a coherent theory of stare decisis.  Not that there aren't coherent theories, just that the Court doesn't have them.

Salinas:

• Justice Thomas's reiterated suggestion that Griffin v. California should be overruled reminds me of why I like Justice Thomas so much.
  

Inter Tribal Council of Arizona:

• Admin law scholars or ambitious students looking for a nice essay topic, see footnote 10: "The [Commission] currently lacks a quorum—indeed, the Commission has not a single active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to 'compel agency action unlawfully withheld or unreasonably delayed.' 5 U. S. C. §706(1). It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking."
• Justice Thomas's willingness to break the don't-cite-Bush-v.-Gore taboo is another reason I like Justice Thomas so much.

Actavis:

• That's a lot of citations to legal scholarship in the majority opinion.  (I counted 18, but I was counting quickly, and there were a lot of repeat citations to Areeda and Hovenkamp.)

Maracich:

• I was skimming the opinion without noticing who was the author until I got to page 26: "The amount of damages sought in the complaint is based on the number of persons,over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case."  Must be Justice Kennedy! I thought.
• The fearsome foursome of Scalia, Ginsburg, Kagan, and Sotomayor are once again in dissent.

Selling Made-To-Order Embryos and the Split on the Right

The New England Journal of Medicine will soon have in print an essay by Eli Adashi and I on the sale of "made-to-order" embryos. The article "Made-to-Order Embryos for Sale — A Brave New World?" has been online for a while already and concerns a recent development in the reproductive technology industry. As we put it:

The proliferation of commercial gamete sources (e.g., sperm and oocyte banks) has opened the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind. This prospect of a for-profit embryo bank is no longer theoretical. Indeed, as recently as November 2012, the Los Angeles Times reported on one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”

Our essay reviews the legal regime that governs it (short answer, in most states it is not illegal or even regulated) and then considers the ethical premissibility of this practice. We examine objections to the practice premised on crowding out of embryo donors, the exploitation or undue inducement of donors, the corruption of reproduction (this is sometimes called "commodification" thought I think that term represents a broader set of arguments, so I  use "corruption" in my work to capture the value-denigrating objection specifically in its intrinsic or consequentialist form), and the furthering of eugenic objectives. Throughout the short essay our argumentative strategy is to press on whether this new practice is all that different from existing practices, epsecially the sale of sperm and egg which individuals can themselves put together to create embryos for reproductive use or to destroy in the generation of embryonic stem cells as well as the practice known as 'embryo adoption' or 'embryo donation.' The thing we think is newest here is actually issues related to lack of guidance on the parentage and ownership of embryos in the event of clinic bankruptcy, changes in minds by the donors, or dispositional conflicts (though John Robertson has suggested the law may be more certain than we posit).

The article is short, limited to 1500 words, so obviously we couldn't tackle everyhting. What has been most interesting to me has been a split of opinion on the article in the righter wings of the blogosphere.

The American Enterprise Institute published commentary on our article "'Walking the Ethical Edge: Made to Order Embryos Address Genuine Needs'" beginning with a view that we own our own bodies and pressing on justifications for prohibiting voluntary transactions, concludes our article "offer[s] a thoughtful guidance through the ethical thicket of embryo donation," and that "arping about or in some cases ignoring the failures of the current IVF system, seems the preferred choice for those opposed to even debating the benefits and challenges of a for-profit embryo market. Unless we as a society are determined to reserve the right of reproduction by infertile couples to the wealthy, we should welcome options."

By contrast, the National Review Online has an article "Made To Order Commodities Market" with a more negative reaction. The author claims we've engaged in "sophistry [that] has always been the anything goes in biotech crowd’s primary tool"and concluding ominously "Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research." The author seems to agree with us for the most part that the distinction between existing practices and this new one is thin[fn1] , but would have us reverse those other practices. That is fair enough. We employ an argument from symmetry here and it can be resolved either way, and we don't actually take a position as to whether these technologies should all be permitted or all prohibited just that they are hard to distinguish (that said, anyone who knows my own work can suspect where I would come out, I can't speak for my coauthor on this!)

Both commentaries are interesting and worth reading. What is more interesting to me is the way in which debates on reproductive technology usage, much more so than abortion, really does cleave the right into two. The libertarian wing wants a strong justification for limiting reproductive choices like other choices about what to do with our bodies and likens the debate to that on organ sale. The more socially conservative wing sees this the beginning of slouching towards gommorah. On abortion this fissure is easier to solve, since the claim of fetal personhood allows more libertarian oriented thinkers to adopt Harm Principle type justifications of preventing harm to fetuses as persons . As I noted in blogging about personhood on my last visit, embryonic personhood claims may be harder to sustain, and thus the consensus more easily shattered.  I am part of a project looking at the intersection of abortion and reproductive technology advocacy and scholarship, so this room for schism is something I may write more about soon.

[fn1]: The author does suggests that sperm and egg sale are different because there is no "nascent human being." I think he means "person" not "human being" and I've blogged about why that distinction might matters in my last visit and also why one might support certain theories of when personhood begins over others. In any event the theory of personhood the author implictly champions would seem not to distinguish the existing possibility of preembryo destruction, indefinite freezing, stem cell derivation, etc.

 

A tale of two pleadings

Two lawsuits have been filed (so far--expect more) challenging the NSA's "dragnet" surveillance program. The first is Klayman v. Obama, filed in the District of the District of Columbia; the lead plaintiffs are Larry Klayman, the head of judicial watch, and Charles and Mary Ann Strange, the parents of a Navy SEAL killed in Afghanistan, on behalf of all other Verizon customers. The second is ACLU v. Clapper, filed in the Southern District of New York; the plaintiffs are the ACLU and the NYCLU, for themselves as Verizon customers who communicate with members, clients, whistleblowers, and others.

It is worth comparing very different approaches to pleading and to this case. It might even be a worthwhile lesson for class.

1) There is a ton of extraneous noise in the Klayman complaint. It spends time talking about how Klayman and the Stranges have criticized the President. There is a lot of rhetoric about "beyond an 'Orwellian regime of totalitarianism'" and how the "only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American's lives, to further its own, and Defendants 'agendas'" and how this is part of a  "pattern of egregious ongoing illegal, criminal activity." Obviously this is all intentional and strategic--an example of what Beth Thornburg has called "pleading as press release." That "tyrannical administration" stuff is going to make for great soundbite, which Klayman almost certainly wants. But it is all legally irrelevant and almost certainly will have no effect on the factfinder. Even the request for damages--in excess of $ 3 billion--seems more designed to get reported on conervative blogs than to actually form the basis for recovery.

This contrasts with the ACLU complaint, which is straightforward and low-key. But the contrast illustrates a genuine strategic and pedagogical question: Does such rhetoric have a legitimate place? And how should we teach students about this, both in teaching pleading in Civ Pro and, more so, in specifically teaching about constitutional litigation in Civil Rights or Fed Courts? Is it comparable to the rhetoric we see in judicial opinions, especially dissents? Or does the comparison fail because judicial opinions are directed outward (to the public, future courts, and future litigants) while pleadings are (or should be) directed only to this court and the parties? One criticism of legal education is that we beat the passion out of students. Should we teach and encourage the sort of empassioned and emotional rhetoric we see in the Klayman complaint? Or should we teach them that there is a time and place--and a complaint is not it.

My instinct is that a pleading is not the appropriate time and place. I always am bothered by the sort of over-the-top language you see in Klayman and would strongly encourage students against this type of thing. Were I the judge, the plaintiff would lose a great deal of credibility with me.

2) Klayman has a lot of legal mistakes (or at least defects), particularly with respect to the effort to get damages. It includes a Fifth Amendment due process claim, which should not be available; substantive due process yields when more specific rights are implicated, such as the First and Fourth Amendments (both of which are pled here). It seeks damages from all defendants, including President Obama, which is, of course, impossible. It asserts state tort claims against all the individual defendants, rather than against the United States, as required by the Federal Tort Claims Act. It asserts a claim against Judge Vinson, the judge FISA Court judge who approved the request, who should have judicial immunity. There are potentially the same problems of supervisory liability that we saw in Iqbal, although a policy is clearly at issue here.

And this one is admittedly nitpicky, but it repeatedly cites Bivens as Bivens v. VI Unknown Named Agents (emphasis added). Are we suddenly in Rome (insert dictatorship joke here)? Or is this the result of some bad "change all"? Obviously, this complaint was drafted in a fairly short time. Still, should we expect more from attorneys? Again, it is about credibility with the judge.

3) The ACLU complaint is as close to one of the Forms as you are likely to see in modern times. It is short--only 38 paragraphs. It doesn't separate into several individual causes of action, with incorporation-by-reference of prior allegations; instead, it simply lists, in separate paragraphs, the three legal rules violated by the program (First Amendment, Fourth Amendment, and a federal statute).

4) Can the plaintiffs in either case establish standing under Clapper? Both sets of plaintiffs should be able to survive the "certainly impending" requirement; because the very nature of the program was to look at all Verizon customers, so any Verizon customer should have standing (perhaps even any customer of Spring and AT&T, as well). But, again, is it that simple? And doesn't that mean that plaintiffs are only going to be able to challenge extraordinarily overbroad programs, but not a slightly narrower one?

Cert. denied in gruesome images case

SCOTUS today denied cert. in Scott v. Saint John's Church in the Wilderness, involving an injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age" in an area near a church just before, during, and just after worship times.  Jessie Hill wrote about the case last month.

In my recent article on the jurisdictional issues in New York Times v. Sullivan, I argued that SCOTUS has a less-than-stellar recent record of keeping an eye state courts adjudicating First Amendment defenses in state-law claims. Although a case such as Scott still would have been reviewable only on certiorari (and not subject to mandatory review) even prior to 1988, the Court in past years was more willing to hear cases such as this one. Particularly where the lower court decision seems to fly in the face of two recent decisions (Snyder and Brown). State courts also seem increasingly willing to issue anti-speech injunctions, with SCOTUS not inclined to monitor them closely.

This denial also shows the Court backing away in the First Amendment area. In its first few years, the Roberts Court seemed inclined to take a lot of cases in this area, particularly free speech, deciding 10 or 15 cases some terms. This past term has one free speech case (and we are still awaiting a decision); next term so far has one Establishment Clause case. I wonder why the change.

Three Reflections on the MOOC Debate

Maybe it is because I teach in close proximity to edx, but I have been having more and more conversations with other academics and with non-academics about Massive Open Online Courses, or MOOCs. I actually don't yet have strong views on the subject, which may make me part of a minority, but I have noticed a couple of pathologies in the way people discuss these MOOCs and the threat/promise they have. Here are three:

(1) A failure to disentangle distributive impact from merit of MOOCs:

Let's face it, a big piece of the MOOC debate is distributional. Most of us who entered academia did so because we liked it in its current incarnation. In a world where MOOCs took over in any substantial part, many of our jobs would cease to exist and/or would change dramatically. As status quo entitlement holders we can all certainly complain about that fact, as could our students. That may be a worthwhile debate to have, but it is quite different from the debate about whether MOOCs are a good idea independent of this retroactivity problem.

One way I often try to engage people on this subject is to ask them to imagine that we were at Time Zero, on a blank slate, and creating the first universities for our day and age. We would then ask: what elements of MOOCdom would be optimal with its attendant effects on cost. Only by doing so can one potentially trade off any negative distributional effects to current entitlement holders against potential benefits (or costs) of the system on its own merits, and evaluate whether a CHANGE is worthwhile. That's not rocket science as an analytical separation, and yet many of the people I talk with on this issue are unable to separate out the issues.

 

(2) A failure to recognize that much of what is at stake is the unbundling of the university and the cross-subsidization in the status quo arrangement.

The modern research university, in part, cross-subsidizes research through the payment for teaching by students. While students partially internalize the value of that research (both in terms of being taught by those doing the leading edge stuff and by the prestige it brings to the institution) there is no doubt that much of the value of that research is externalized, generating a kind of public good. MOOCs may threaten  that by having fees pay for teaching much more directly without the research -- I say *might* because it is hypothetically possible, though unlikely in the current climate to be sure that MOOCs might free up more time for research by allowing professors to spend less time in the classroom by recording their lectures only once rather than constantly performing it (more on that in a moment), though in the current climate that is highly unlikely. The move to adjuncts, heavier teaching loads, more heavy TA usage, etc are much more direct moves in this direction. This kind of move  has analogues in many other professions -- for example using nurses and physicians' assistants instead of doctors where possible, and as it was there it is aimed primarily at cost savings.

The only point I want to make is that the optimal amount of cross-subsidization of research through teaching -- again putting to one side the distributional question of what happens to status quo entitlements and instead starting at day zero -- is not altogether obvious. To the extent what is threatening about MOOCs is that they may reduce that cross-subsidization and thus lead to the generation of less research, then THAT is the debate to have.

(3) What is so great about the traditional live lecture?

I don't teach by lecture. In fact, portions of my civil procedure course that I would lecture through if forced to do so are ones I usually instead put on handouts for students to read on their own, since I think it is a better use of both of our times. Still, I am prepared to accept that in many instances a lecture may have pedagogical value, especially if it is delivered in an inspiring sort of way. What I don't understand, and have yet to get a good defense of, is why the value of those lectures requires it to be live?

Now as someone who loves the theater I can appreciate the difference between seeing Henry V live versus those wonderful 1970s-80s BBC Shakespeare versions. However, whatever "performance" value live lectures have of that sort strike me as a fairly light benefit if costs could be dramatically cut. Again, it may be that many academics who are most against MOOCs engage in just this kind of live lecture, and the possibility of recording it rather than doing it every year would have significant threats to their livelihood. Fair enough. But that is different from mounting the defense against MOOCs on the pedagogical advantage of such live lecturing.

If that defense is out there, I would like to see it. If not, then it seems to me that whether a MOOC is a step down pedagogically, and whether it is such a huge step to justify the increased cost, will depend on how much non-lecture content professors currently bring in. I use the Socratic method or teach classes that are very discussion oriented, things much harder to reproduce (or so I think!) in MOOC land and that have (or so I think, I've not run a randomized trial to find out!) pedagogical value above and beyond a straight lecture. So my defense of resisting MOOCs (again at time zero) would have to be that the pedagogical value added over a recorded lecture is great enough to justify the extra expense. Could I mount such a defense successfully? I'd need to know more about the cost vs. learning trade-offs, but I think this would be the right way to think about it.

 * * *

None of this is to say yay to MOOCs. I think there are significant potential problems with the MOOC model, most interestingly the risk of homogenizing education. I have  an Orwellian picture of every Civil Procedure class doing the same MOOC segment at exactly the same time around the U.S. year in and year out. But I think it is important to focus on these and other arguments clearly and this is my own (modest) attempt to sort argumentative wheat from chaff.

I am sure many will disagree and look forward to hearing your thoughts.

- I. Glenn Cohen

Standing?

Two high-profile federal trials are currently challenging controversial law-enforcement practices. In Arizona, District Judge G. Murrary Snow enjoined Maricopa County Sheriff Joe Arpaio's programs aimed at stopping and detaining undocumented individuals, finding that the program involved racial profiling in violation of the Fourteenth Amendment and that the sheriff lacked authority to seize people on nothing more than reasonable suspicion of being in the country unlawfully. In New York, District Judge Shira Scheindlin is presiding over a trial challenging NYPD's stop-and-frisk policies and is widely expected to hold that the program is unconstitutional, also under both the Fourth Amendment and equal protection.

One question: How do the plaintiffs have standing in either case? Both cases are class actions, brought on behalf of all persons who will be subject to these various programs; for example, the Arizona action was on behalf of “[a]ll Latino persons who, since January 2007, have been or will be in the future stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County Arizona.” The lead plaintiffs in both cases are individuals who have been subject to these unconstitutional law-enforcement programs in the past. No damages are sought in either case, only declaratory and injunctive relief.

But  Clapper and Lyons seem to suggest that a plaintiff can obtain standing to challenge law-enforcement policies only by showing a certainty or high likelihood that they will be subject to enforcement efforts in the future. Even accepting the breadth of the challenged municipal policies,  standing requires that this plaintiff show that he himself will be subject to enforcement efforts pursuant to those policies. And Lyons tells us that past harm is not sufficient to establish future harm; that someone was subject to unconstitutional enforcement efforts in the past (as was the plaintiff in Lyons, as well as the lead plaintiffs here) does not mean he will be subject to enforcement efforts in the future.

So how is either case different than those precedents for standing purposes? The only apparent difference is that both are class actions, while neither Clapper nor Lyons was. But should that be enough for Article III purposes? That seems to place a lot of substantive import on a procedural mechanism. I cannot imagine the five-justice majorities in either case would accept that the standing limits they imposed are overcome by nothing more than Rule 23. Are there any other differences that, in light of current doctrine, justify standing in these cases in light of Clapper and Lyons?

Police Body Cams

This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in  the trial  challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.

Rationing Legal Services

In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor.  This only  only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.

To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?

I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.

I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.

The end of the paper entitled “Some Realism about Rationing”, takes a step back to look for the sweet spot where theory meets practice. I use the foregoing analysis to recommend eight very tangible steps LSPs might take, within their administrability constraints, to implement more ethical rationing.

While this paper is now done I am hoping to do significant further work on these issues and possibly pursue a book project on it, so comments on or offline are very welcome. I am also collaborating with my wonderful and indefatigable colleague Jim Greiner and a colleague in the LSP world to do further work concerning experimentation in the delivery of legal services and the research ethics and research design issues it raises.

- I. Glenn Cohen

The truth about past relationships

NBA player Jason Collins famously came out as gay last week, the first active player in a major U.S. team sport to do so. The reaction was the expected mixed bag. One mini firestorm erupted over comments by media critic Howard Kurtz, who chastised Collins for not owning up to his having been engaged to a woman. Unfortunately for Kurtz, Collins actually mentions his engagement (along with the fact that he dated women) in the eighth paragraph of the Sports Illustrated cover story. Kurtz apologized--initially in a typically half-assed fashion, then more unequivocally--and was grilled about it on CNN, stating "I deserve the criticism, I accept it and I am determined to learn from this episode." He also was terminated from The Daily Beast, although he insists this was in the works for a while and the timing was a coincidence.

Criticisms of Kurtz, and his apology, all focus on the factual error of his criticism. But this suggests that had Kurtz been correct and Collins had not mentioned the engagement, Kurtz's criticism would have been justified. Is that right? hat bothered me about Kurtz's initial story (but that I did not see discussed) was the stupidity of his premise: Collins was not being completely honest or forthcoming in excluding the detail of his engagement from the SI story. When a public-figure comes out, does the story really have to be "complete" and does that completeness necessarily include details about past heterosexual sexual activity? And how deep does this run--what is it, exactly, that Kurtz believes the public is entitled to know? Is it only the engagement about which Collins was obligated to "come clean"? Is it all dating? Is it the number of heterosexual sexual partners? Collins is 34 years old and only recently (within the past several years) came to understand his sexuality. It stands to reason that in the decade-plus between puberty and his coming out, he dated and had relationships, perhaps even long-term and serious relationships, with women. But why is that fact remotely relevant to the story of his coming out? Does it make him less gay? Does it make his story less sympathetic that he behaved as many closeted (or unrealizing) GLBT people do and as people have been forced to do by society, particularly in the world of team sports?

Jurisdiction (of every shape and kind), Merits, and Kiobel

SCOTUS at long last decided Kiobel v. Royal Dutch Petroleum on Wednesday, unanimously rejecting the claim under the Alien Tort Statute. Five justices (via the Chief) went with a no-extraterrotriality approach, while four justices (Justice Breyer for Ginsburg, Sotomayor, and Kagan) urged a more-precise understanding of the ATS as a jurisdictional grant. Importantly for my interests, the Court as a whole tries (and more or less succeeds) in continuing the sharp distinction between merits and jurisdiction under ATS first drawn in Sosa v. Alvarez-Machain, which should apply more broadly and generally.

The majority begins with Sosa and the notion that the ATS is "strictly jurisdictional," that it does not regulate conduct or afford relief, and that it is the federal courts recognizing the cause of action. Awesome.

But then the majority refers repeatedly to actions "brought under" the ATS, a term typically applied to the substantive law rather than the jurisdictional grant (e.g., an "action brought under Title VII" or "an action brought under the Sherman Act"). Further, the presumption of extraterritoriality, which the majority relies on, fits oddly here, since the ATS itself is only granting jurisdiction; extraterritoriality and the presumption against it ordinarily concerns the reach of the applicable substantive law created by a legislature.

The answer, I think, comes on p. 8 of the majority slip opinion, which says the following:

The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provide by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.

In other words, federal courts' authority to recognize causes of action is granted by Congress through the ATS; the courts do not have the inherent authority to create common law causes of action (the way a state court might). Stated differently, the ATS is a jurisdictional grant in two respects: It grants courts adjudicative jurisdiction to hear and resolve certain cases and it grants them prescriptive jurisdiction to prescribe substantive rules of conduct for certain transactions or occurrences. But the latter is limited to causes of action within the scope of the statutory grant itself. Hence the statutory extraterritoriality analysis--if the ATS does not have extra-territorial application (as the Court concludes), then neither can the cause of action created by the courts pursuant to the delegation in the ATS. Thus, the substantive cause of action the court could create under the ATS fails here because the conduct occurred overseas and involved foreign nationals--which sounds like a 12(b)(6) merits dismissal.

Justice Breyer's concurrence uses the word "jurisdiction" (or "jurisdictional") a bit loosely for my taste, so it's hard to know exactly what he is talking about. On pp. 1 and 7 of the slip op., Breyer argues that the statute "provides jurisdiction" (or that he would "find jurisdiction") where: 1) an alleged tort occurs on American soil; 2) the defendant is an American national; or 3) the defendant's conduct substantially and adversely affects an important national interest, including an interest in not becoming a safe harbor for pirates (or their modern equivalent).

The problem is that it is not clear what Breyer means by "jurisdiction" there. Does he mean adjudicative jurisdiction? If so, the third prong (and perhaps the first) bleeds over into the merits of the claim. Whether the defendant's conduct affects a national interest, like whether conduct affects interstate commerce, looks at the real-world conduct itself and thus (at least on my preferred model) should not have anything to do with the court's adjudicative authority. Alternatively, this framing is less problematic if he means, like the majority, prescriptive jurisdiction. That is, the only causes of action a federal court can recognize and attach liability to are those that meet those three elements. I can live with that as a limitation on the court's prescriptive authority and thus on the substance of any claim. But I still would suggest that it is better to describe that as a limitation on the available court-recognized cause of action rather on jurisdiction.

 

Integrating institutions

Reviews have been mixed on "42", the new biopic of Jackie Robinson (really of about two years or so of Robinson's life). Critics have particularly decried the film's cartoonish and simplistic take (and white rather than black perspective) on racism and race relations. As one commentator put it, "someone took the racial politics of 'The Help', combined it with the baseball of "A League of Their Own", and put it on top of "Mississippi Burning'." Another commentator described the move as "Jackie Robinson 101", telling the very basic story in the simplest terms.

It is a point of pride for baseball that its integration was on the leading edge of the Civil Rights Movement. A little more than a year after Robinson's debut, Harry Truman signed Executive Order 9981, which called for "equality of treatment and opportunity" in the military and ultimately led to the integration of the military.

Is it a coincidence that these were among the first two institutions to integrate? Here is one thought: Both are top-down, hierarchical, non-inidividualistic institutions, in which commands from the top are strictly followed (the military analogy is more common in football, but it still works for baseball, especially the baseball of the Reserve Clause, one-year contracts, and no union of 1947). Both also are monopolistic--this was the only place to go to serve in the military (a legal obligation back then) or to play professional baseball at the highest level. Integration can take hold, at least somewhat formally, in institutions such as these because any individual objections are overcome by the command from above to follow orders and deal with it or go do something else. Christopher Meloni has drawn praise for his portrayal of Dodgers manager Leo Durocher, particularly a scene (drawn from actual events) in which he told a team meeting that Robinson was going to help the team win (and thus help everyone make money), which was all that matters, so everyone else needed to get on board.

The limits of governmental standing

Having now listened to the justiciability portions of the arguments in Windsor and Hollingsworth, I return squarely to an issue I glanced at here, argued more explicitly in some presentations of that paper, and may hope to return to at some point in the future:

When the government (whether federal or state) is unquestionably the real party in interest in constitutional litigation, why should Article III care who appears as "the government" or who represents (or purports to represent) the government's position and interest? Adverseness, the real concern underlying standing, is present simply because the government is a party to the case. Who (really what part of the government) makes the government's case does not affect adverseness and therefore should not be an Article III concern. It may implicate other constitutional provisions and concerns--the Take Care Clause or the Guarantee Clause--as well placing on governments the burden of legislating and planning for how those representatives will be identified. But the courts really should not care about it fas to the basic demand for a case or controversy.

Line of the Day--Non-Marriage Edition

People have been tweeting and writing about various lines to come out of yesterday's arguments in Hollingsworth, whether played for laughs or as portentous. Here's one that slipped in, both because it's not about same-sex marriage or standing and because it's kind of inside baseball:

Early in his argument opposing Prop 8 and arguing that the proponents lacked standing, Ted Olson suggested that a state could appoint a special officer to defend a ballot initiative where elected officials choose not to do so. When Justice Scalia wondered how the governor who refused to defend the initiative can be expected to appoint someone else to do so, Olson responded: "Well, that happens all the time. As you may recall in the case of--well, let's not spend too much time on independent counsel provisions."

Explanation here.

Anderson Cooper has standing

For those of you who missed 6o Minutes tonight:

 

SCOTUS doings

Two items of interest involving SCOTUS (not having anything to do with one another, except relating to SCOTUS's docket):

1) The Court today granted cert in Madigan v. Levin, which considers whether state and local employees can bring constitutional claims of age discrimination through § 1983 rather than going through the ADEA. The Seventh Circuit said they could, a departure from several other circuits. But most of those decisions came before SCOTUS' 2009 decision in Fitzgerald v. Barnstable Sch. Comm., where the Court held that a student could bring sexual harassment claims against a school and school officials under both Title IX and the Constitution. Fitzgerald emphasized the differences between the constitutional and statutory claims--including the identities of liable defendants and the applicable legal standards. The Seventh Circuit was the first court to apply Fitzgerald's analysis to the ADEA or other employment discrimination statutes.

The logic of Fitzgerald means the Seventh Circuit should be affirmed. Plus, I spent time in my book on § 1983 litigation discussing Levin as the appropriate application of Fitzgerald to other civil rights laws. I hope the Court doesn't somehow make me look bad on this

2) Mike Dorf discusses Holingsworth and Windsor, arguing that these cases are not likely to trigger massive resistance (a la the response to Brown) and thus are not appropriate for Bickelian passive virtues or Sagerian underenforcement. I agree with Dorf that if the Court recognizes a broad right to marriage equality, massive resistance is nearly impossible to imagine. But it is worth considering why.

The key is, what would massive resistance to Hollingsworth look like? Implementing Brown (even if the Southern states had actually tried to implement it in good faith) required a massive restructuring of the state educational system. And faced with resistance, federal courts felt hampered in their ability to compel compliance, given the costs and burdens involved. Whether or not those were legitimate reasons for the courts to stay their hand (either in Brown or later), the concerns are absent as to marriage equality. A decision in Hollingsworth holding that the 14th Amendment requires marriage equality would involve states issuing licenses when people ask for them, without any fundamental change to institutional structures. I suppose all the officials in a state could conspire to not issue licenses to same-sex couples. But any such resistance could be remedied with a simple injunction ordering compliance, an order that federal courts would be more willing to issue and vigorously enforce, since it would not impose great (or, for that matter, any) costs on the state.

Two current items on the filibuster

Two events have the filibuster, and conversations about filibuster reform, back in the news today. First, Republicans are (silently, of course) filibustering President Obama's nominee to the D.C. Circuit, apparently because she litigated cases that Republicans don't like (specifically against gun manufacturers), which disqualifies her from being a judge. Anyone who did not see this coming after the Democratic capitulation (again!) on filibuster reform is not paying attention. The fact that Carl Levin (as quoted in the linked piece) believed that anything would change shows how much is wrong with the Senate and with the Democratic Party.

Second, Rand Paul (supported by Mike Lee and Ted Cruz) is staging a talking filibuster of the nomination of John Brennan as Director of the CIA. This at least gives some reform advocates some of what they want--the end to silent filibusters and forcing Republicans to take and hold the floor (and the heat) for their delay efforts. Paul has been at it since 11:45 a.m. EST, so just over four hours now. Stay tuned. [Update: Still going as of 11:15 p.m.--coming up on 12 hours. Here is another piece reflecting the "this is the way filibusters ought to be" view]

Further update: It ended around 12:30, after 12 hours and 52--as everyone, incluindg Paul will note, a little more than halfway to Strom Thurmond's record filibuter. This does appear to have been effective at calling attention to the issues Paul wanted to highlight. The press found it entertaining, as did some of the public that pays attention to any of this. But a big part of that might just be the novelty of the talking filibuster. And if the minority had to do this every single time they opposed a court of appeals nominee, the novelty would wear off, particularly for the public and particularly if other business is not getting done. I previously have thought that the mandatory return of the talking filibuster--one of the filibuster-reform proposals that's been made--would be ineffective, actually creating more of a burden on the majority. But perhaps it would be a way to get rid of the routine filibuster (which really is the problem) without having to drastically rewrite Senate rules about what is and isn't a proper filibuster target.

Dorf on cameras in the courtroom

Mike Dorf offers some thoughts on cameras in the courtroom (particularly SCOTUS and appellate courts), in light of Justice Sotomayor's recent announcement that she would not support allowing cameras into oral argument (a switch from the position she took during her confirmation hearing). He does a good job rejecting the arguments that people will not understand what is going on and that the justices and/or attorneys will grandstand for the cameras. He also adds a nice First Amendment twist--at the very least, the burden of persuasion that these harms may occur rests with the opponents of cameras (the "censors") rather with than the proponents of cameras. I had not thought of that in my prior comments, but it is a great point.

Westboro Baptist and marriage equality

Jason Mazzone at Balkinization links to an amicus brief filed by Westboro Baptist Church (of "God hates [everyone but us]" and Snyder v. Phelps fame) in the DOMA case--which, he points out, does not actually cite to any provision of the Constitution. And I would add that the Table of Authorities cites fewer cases (8) than Bible verses (35). I've already said that I find the primary merits argument hard to believe or take seriously. Is Westboro's argument really all that much worse?

The summary of the argument is after the jump.

The government has responsibility to protect the health, safety and welfare of the people. Of all the harms that a society can face, none are worse than incurring the wrath of God by a blatant policy of defiance of and disobedience to His plain standard. This nation was founded on Bible principles, and the laws of America arose from Scriptural precepts. America has erred in making fornication, adultery, divorce, remarriage, abortion-for-convenience-on-demand and sodomy, standard fare in this country. It is time to reverse that course, and for this Court to squarely hold that the governments of America have a compelling interest in upholding traditional opposite-sex marriage, and further in protecting the people from
the devastating effects of same-sex marriage. Separation of church and state, while prohibiting government from interfering in issues of doctrine or church governance, does not prohibit the government from promulgating laws that institute the standards of God on moral issues. Just as the government is empowered to outlaw murder, the government is empowered to outlaw same-sex marriage. This nation that God blessed and built into a super power is going to perish if this Court and the governments of this land bless same-sex marriage through government license. WBC pleads for reversal.

Marriage: Because only straight people can get knocked up

This story from the LA Times is a week old, but it describes part of the argument in the briefs defending the prohibition on same-sex marriage (as to both Prop 8 and DOMA), roughly as follows: Marriage is a unique institution necessary to handle unintended and unplanned pregnancies and to ensure that "irresponsible procreation" does not become a burden or drain on society. While same-sex couples only reproduce through careful advance planning, heterosexual couples can, and often do, reproduce carelessly and unintentionally. In other words, marriage is for straight people because only straight people can get knocked up or can knock someone up.

I have not read the briefs and I probably should know better than to rely on MSM reports of a legal brief, but is that really part, much less the core, of the argument? Is there more to the argument that the story omits? We have gone--seemingly in the space of this one litigation--from marriage as a sacred institution needing preservation from those who would defile it to marriage as a way to handle irresponsible-but-fertile fornicators. On this argument, marriage is intended for the very people who probably should not be together.

(H/T on both the Times story and the title from my colleage Tracy Pearl).

 

Arizona On My Mind

Arizona Governor Jan Brewer has decided to endorse Medicaid expansion under the Affordable Care Act. Since this decision requires state legislative approval in Arizona, I am still puzzled as to why press coverage implies this is also Arizona's decision. Her decision was to stake out the governor's position. What the State of Arizona will do remains to be seen.

Still, it is an amazing thing -- a show stopper really -- to see the governor of the last state to participate in original Medicaid come out in favor of Medicaid expansion. Governor Jan Brewer -- she who bolstered her political reputation by publicly wagging her finger at President Obama on the tarmac -- is all in on Medicaid expansion. Whether this marks the triumph of mathematical calculation over ideology will never be known.

The most important constellation of issues surrounding the NFIB v. Sebelius decision, however, is not whether states will ultimately opt-in to the Medicaid expansion. The Medicaid opt-in is, like original Medicaid, not so much the federal government making the states an offer that they cannot refuse as making the states an offer that they desperately want to find a reason to accept. Even Arizona, after all, ultimately opted-in to original Medicaid, in 1982, with the creation of its Arizona Health Care Cost Containment System ("AHCCS"), still advanced as "Arizona's single state Medicaid agency" under the authority of a negotiated 1115 Medicaid waiver in place to this day.

What I really want to consider is what concessions will states bargaining in the shadow of NFIB v Sebelius be able to exact from the federal government in exchange for participation in the Medicaid expansion? And how big will the federal government allow the states to dream? Arizona's original AHCCS waiver, for example, was to include all state employees in its program -- a daring proposal that has not survived implementation. At least six states have expressed some interest in bartering block-grant authorization of Medicaid for their state’s participation in the Medicaid expansion.

Medicaid is and has always been a heavily negotiated program, particularly as it applies to “optional populations”. Now that individuals at between the federal poverty level and 138% of the federal poverty level are “optional populations”, the negotiations seem likely to increase in intensity. There are currently 426 active Medicaid waivers. This is not uncharted territory. It is merely, for the ACA, an unexpected voyage.

The history of Medicaid reveals the existence of enormous state power to demand unique degrees of buy-in to Medicaid expansion. That is the lesson of the state-by-state brokered buy-in for original Medicaid. That is also the lesson taught by the historic use of the Health and Human Services (“HHS”) Secretary’s Section 1115 waiver authority to allow an extraordinary range of state-level experimentation. Section 1115 strongly suggests that the HHS Secretary may offer states individual bespoke Medicaid programs. But whether states can demand them is a harder question.

Excerpted from "Let Fifty Flowers Bloom: Health Care Federalism After NFIB v. Sebelius" (forthcoming, draft available on SSRN) and a follow up work in progress: "The Medicaid Gamble."

PrawfsBlawg: Tomorrow's News, Today.

Perhaps PrawfsBlawg can't meet a catchy newspaper-themed television show from the 90s, but it does have some predictive power. Back on January 7, a few of you may recall that I wrote about proposed legislative changes to the Electoral College in a handful of states. I suggested three reasons I wouldn't be concerned: that there are House-Presidential mismatches; that such proposals are nothing new and rarely go anyplace; and that there exists a Rawlsian concern that a plan might backfire tomorrow.

Well, it took a few weeks, but everyone's finally coming around. Joshua Spivak at The Week writes about how temporary gain may not pay off in the long-run. Nate Cohn at The New Republic called the move "self-defeating." Rick Hasen wrote at Slate last week not to worry, because such worries are often overblown.

And then, like clockwork, the proposals have hit obstacles. Serious concerns were raised by Republicans in Virginia and Wisconsin. And the plans appear to be dying, one by one.

But you, PrawfsBlawg reader, knew all that, because you read what I had to say three weeks ago.

Think they can get it right this time?

No matter what day they're administering the oath.

 

Jurisdictionality and discretionary review

SCOTUS on Tuesday decided Lozman v. City of Riviera Beach, holding that a floating house was not a "vessel" for purpose of admiralty law because it was not "used, or capabale of being used, as a means of transportation on water." The Court thus held there was no jurisdiction over a municipality's attempt to establish and enforce a maritime lien on a floating house (a picture of which is included in the Appendix to the opinion) moored in its marina.

Two questions/comments on the case.

First a comment. As I wrote after oral argument, I still believe this case suffers from jurisdiction/merits conflation, although it was not discussed at all. Building on what I wrote in October: "Vessel" does not appear in the statute granting  admiralty jurisdiction, which states simply that district courts have original and exclusive jurisdiction over "[a]ny civil case of admiralty or maritime jurisidiction." Rather, the word appears in the Maritime Lien Act, which is the substantive law establishing a lien and a cause of action for a "person providing necessaries to a vessel." The Court then had to interpret the Rules of Construcion Act to define vessel for purposes of the MLA.

Thus, the meaning of vessel, and whether the thing at issue here is a vessel, should be a merits question. I cannot see any difference between whether something is a vessel subject to a maritime line and whether someone is an "employer" or "employee" in a Title VII action, both of which are treated as merits issues. One difference, I suppose, is that if a creditor attempts to take a lien on a res that turns out not to be a vessel, the creditor still can take a lien on the property, but the claim  reverts to one under state law. On the other hand, if a named defendant turns out not to be an "employer" under Title VII, the claim does not revert to anything; it simply fails. I don't buy the distinction, however. The Lozman opinion spends 15 pages trying to find the meaning of one word--vessel--that appears not in the jurisdictional grant, but in a separate statute that creates a cause of action and contains no jurisdictional language. Recent case law suggests that statute should be treated as substantive and whether it is satisfied as a merits question.

If the goal in jurisdictional analysis is simplicity (as the Court again repeats here), my approach is the simplest: The city's allegation that the object it is asserting the lien on is a vessel grants admiralty jurisdiction-full stop. If it then turns out not to be a vessel, then the city's claim for a maritime lien fails on the merits. And we end up in the same place--the city's claim fails.

Second, a question, first raised by a colleague: Why did the Court take this case? Given the discretionary nature of its jurisdiction and how few cases the Court hears in a term, why would it spend a slot on this case? Justice Breyer's majority opinion insists the grant was "[i]n light of uncertainty among the Circuits about application of the term 'capable'" in the definition of vessel. But aren't there more pressing issues of federal law with similar "uncertainty" that would be more worthy of the extraordinarily small amount of time and attention that the Court is willing to spend?

A few thoughts, although I am not sure any explains it. One is that admiralty is a uniquely federal area of law that does not come up all that often but that does have to be dealt with. So SCOTUS's responsibility for supervising the federal courts and federal law might prompt the justices to reach a bit more to find an admiralty case. This also plays into the view, expressed by one of my former professors, that the Court should take some obscure cases every so often, just to keep everyone honest (the prof had the non-delegation doctrine in mind, but admiralty also would do). Another possibility is that this is an example of the Court engaging, as it occasionally does, in some error correction, taking a case simply because the justices believe the lower court erred. Of course, the Court typically will do that only when significant federal interests are at stake, so we come back to the question of whether admiralty and the definition of vessel qualifies.

Anyone have other explanations for this grant and this decision?

Too Much for Toobin: Does Jeffrey Toobin Understand the Voting Rights Act?

Jeffrey Toobin’s recent piece in the New Yorker has me scratching my head.

It’s not that it’s a predictive piece akin to his infamous prediction after watching oral argument in NFIB v. Sebelius, “This law looks like it’s going to be struck down.” It’s that the hyperbole attendant to an examination of the Voting Rights Act of 1965 (“VRA”) gives me pause.

The background: In 2009, the Supreme Court handed down its decision in NAMUDNO v. Holder. Eight justices signed an opinion expressing serious concern about the constitutionality of Section 5 of the VRA, which requires certain “covered” states and jurisdictions to “preclear” all voting rules with the Department of Justice or a federal court. (The ninth justice found Section 5 unconstitutional.) The problem: Congress last updated the formula defining covered jurisdictions in 1972, and renewed VRA in 2006 to extend through 2031. The Court avoided the hard question last time but will hear argument in Shelby County v. Holder February 27 to address squarely the constitutional issue.

Mr. Toobin is worried that the Court may strike it down, which is an entirely legitimate worry. The concern with the piece, however, is that it is less than a model of clarity or precision.

Perhaps it’s the erroneous statements. For instance, Mr. Toobin reports that the VRA “abolished” the use of poll taxes, which is inaccurate: Section 10 of the Act allowed the Attorney General to institute lawsuits to challenge poll taxes, but Congress was uncertain it could legislatively abolish poll taxes, as it took a constitutional amendment to abolish it in federal elections. It was the Supreme Court’s decision in Harper v. Virginia  State Bd. of Elections that abolished the use of poll taxes. But he’s in good company, I suppose: Wikipedia makes a similar error.

Or maybe it’s misstating research. Mr. Toobin cites a study for the proposition that “in central Florida alone, long lines, exacerbated by a law that reduced the number of days for early voting, discouraged about fifty thousand people, most of them Democrats, from casting ballots.” Except, that’s not accurate. Professor Theodore Allen at the Ohio State University found that lengthy ballots were responsible for long voting lines. (Check out a sample ballot from Osceola County, where 17 elected officials, 12 constitutional amendments, and a county charter amendment on a bilingual ballot took up seven pages.)

It is, of course, true that if more people vote early, Election Day turnout is lower; and if Election Day turnout is lower, then long lines are less likely. But Mr. Toobin also misleads on Florida’s early voting cuts. Florida law reduced the number of early voting days from 14 to eight—except that the Department of Justice, under Section 5, precleared in covered counties a reduction from 14 days to 12. Additionally, in those covered counties and others (32 of 67 statewide), there were 96 hours of early voting, an identical number as 2008. Yes, there were fewer days, but in many places there were the same number of early-voting hours; and fewer days did not necessarily “exacerbate” the long lines.

Then there’s this statement: “The Department of Justice and the federal courts used Section 5 to block initiatives in Florida, South Carolina, and Texas. Had the courts failed to take such action, according to the Brennan Center for Justice, as many as five million votes might have been lost, which was, as it happens, almost exactly Obama’s popular-vote margin over Romney.”

Oh, where to begin.

First, the Brennan Center estimated in 2011 that, at the time, at least 19 laws and two executive actions may make it “significantly harder” for more than five million eligible voters to vote (which Mr. Toobin characterizes as “might have been lost”).

Second, the five million figure wasn’t just about laws in Florida, South Carolina, and Texas. The figure included the effect of laws in 11 other states. The three of those 21 voting regulations limited under Section 5 were Florida’s early voting restrictions in five counties, and voter identification laws in Texas and South Carolina.

Third, a host of factors apart from Section 5, including citizen initiatives, alternative legal challenges, legislative repeals, and gubernatorial vetoes rendered that five-million-vote claim moot. And, of course, political party operatives adapted (often admirably) to new rules.

Fourth, it’s an extraordinarily misleading claim to note that “it happens” that the total number of votes lost equals Mr. Obama’s popular vote margin. Not all votes lost would belong to one party, even if those lost votes disproportionately belong to one party. Regardless, it’s difficult to say that the loss of popular votes in Texas or South Carolina would affect Mr. Obama’s odds in any meaningful sense, because the Electoral College still votes for the president.

Mr. Toobin’s closing lines are dire: “[T]he South is no longer all that different from the rest of the country. But that’s not so much because the South is now better—the open racism of the years before 1965 is gone—as because the rest of the country is now worse.”

Really? In 1966, the gap between white voter turnout and black voter turnout was 15 points; in 2012, black voter turnout exceeded white voter turnout. There may be other problems with our democracy in the last 50 years, such as a decline in overall voter turnout rates. But, it’s hardly the case to say that the country today is in worse shape 50 years after the VRA, particularly in the arena that the VRA targeted—racial disparity in voter registration and turnout.

Which is all a very long-winded way of saying, as the voting wars heat up (to borrow the title from Rick Hasen’s excellent work), it may benefit us to have cooler heads. There are good arguments why Section 5 may not be facially unconstitutional, as excellent work from Franita Tolson argues. Or, even if it’s struck down, there are important things Congress may do to replace it. Or, maybe it’s not that significant a loss if struck down. But, unsubstantiated outrage and hyperbole may not help move the ball.

It's Never Too Early To Think About 2016

Even though the presidential election is over and won’t return until 2016, election legislation is a year-round business. And that beleaguered institution, the Electoral College, is the object of recent legislative buzz. Some are shocked—shocked!—that politicians may write facially neutral rules that might improve their own political party’s chances.

The larger scheme to effectively abolish the Electoral College, the National Popular Vote, has slowed of late. It’s a process that fascinates me (and one I’ve written a little about), but it’s not the one I want to focus on here. Instead, I want to examine a smaller, more piecemeal effort.

Under Article II, state legislatures have the power to direct how they appoint presidential electors. Today, most states have adopted a winner-take-all system: the winner of a plurality of that state’s popular vote wins the whole slate of presidential electors. (It’s largely in their rational self-interest: a big chunk of electoral votes awarded to a single candidate makes the state more influential and attracts more attention from the candidates.)

Two states, however, use the “district method.” Thus, in Maine and Nebraska, the presidential candidate who wins each congressional district in the state earns one elector, and the statewide winner earns two electors. In Nebraska in 2008, for example, Senator John McCain won the 1st and 3d districts, Senator Barack Obama won the 2d district, and Mr. McCain won the statewide vote; that yielded four electors for Mr. McCain and one elector for Mr. Obama.

After the 2012 election, a few states are now considering adopting such a method. Legislators in Pennsylvania, Michigan, and Virginia have floated such an idea, as has the governor of Wisconsin and, in slightly more abstract terms, the Secretary of State of Ohio.

But there is a common thread—perhaps just a big coincidence. Each advocate is a Republican in a state with Republican legislative control and a Republican governor—in a state that has preferred the Democratic presidential candidate in the last two presidential elections.

There is, perhaps obviously, a serious advantage to the Republican presidential candidates if these states, previously winner-take-all slates of electors for the Democratic candidates, move to a system where the Republican candidate can win at least a portion of the electors. If enough states do it, pretty soon we’re talking real numbers.

Additionally, more Republicans than Democrats won House districts—Republicans hold a 33-seat advantage—despite the fact that Democratic candidates received more popular votes nationwide. (One slightly upset commentator called them “ridiculous gerrymanders.”)

For three reasons, I’m not that worried.

First, there often are House-President “mismatches.” Nebraska’s Second District in 2008, is one such “mismatch,” where the winner of the congressional seat was a Republican but a winner of the presidential vote was a Democrat.  In 2012, Virginia’s Second District is another similar example. Granted, there aren’t many. But the mere fact that a district is gerrymandered to favor a Republican or Democratic member of Congress is no guarantee of the same result in a presidential election. (Moreover, such a change, if enacted, would prompt different behavior from presidential campaigns, which would likely yield more mismatches.)

Second, it’s been proposed before… and it generally has remained just that—a proposal. In 2012, Pennsylvania considered an identical plan, and it didn’t go anywhere. Republicans in California and Democrats in North Carolina considered (and rejected) the district method prior to the 2008 election. Colorado voters considered (and rejected) a plan for proportional allocation of electors in 2004. It seems as if all this has happened before, and will happen again.

Third, call it Rawlsian concern, to borrow a bit from Chad Flanders, that the partisans might not apply a rule today that might backfire on them tomorrow. Take the North Carolina proposal before the 2008 election. Had Democrats in North Carolina had their way, North Carolina’s electors would have been apportioned by congressional district because, so the thinking went, there was little chance that a Democrat would carry the state. Fast forward just a few months, and the Democratic candidate carries the state.

Despite partisan motives, legislatures will be slow to act given the uncertainty of what the next presidential election may hold. And so they are disinclined to make temporary partisan gains for an uncertain political future.

To be the wet blanket on this media fire, I don’t think there’s too much “there” there. But, perhaps you disagree? I’m interested to hear.

Restorative justice and murder

This story from yesterday's New York Times Magazine tells the story of a domestic violence murder in Dan's neck of the woods in Tallahassee and the efforts of the families of the victim to use restorative justice processes in determining his sentence. At some level, this seems like an ordinary example of the family of the victim forgiving the perpetrator; on another, there were some unique procedures brought to bear.

I would like to hear what people (including Dan, who has gotten to watch this up close) think about this as a genuine example of potential alternative processes in criminal law.

The Citizens United Link to the Affordable Care Act Litigation

It’s not too often that I try to draw a line between my own field of Election Law and the much less familiar field involving the Religion Clauses. That’s a universe I tend to leave to the very capable hands of folks like Rick Garnett, Michael Helfand, and Paul Horwitz. But recent litigation did part of the work, and it raised important issues that, I think, the Supreme Court is ultimately going to need to consider. And it has to do with who, or what, is a person.

In 2010, the Supreme Court handed down its opinion in Citizens United v. FEC, which, among other things, struck down limitations on corporate independent expenditures in the Bipartisan Campaign Reform Act of 2002. One important element of the opinion was the conclusion that the identity of the speaker—in that case, a for-profit corporation—could not be subjected to special restrictions on political expenditures.

This conclusion, according to one justice, prompted pithy bumper stickers regarding corporate personhood. But it’s important to note that even the dissent agreed on larger point: that corporations have First Amendment rights. It’s just that the dissent argued that Congress had a compelling reason to single out for-profit corporations (because of, among other things, their perpetual life, and their ability to aggregate wealth through special tax structures); the majority found no such compelling reason to single out one corporate form over others.

And the dispute was, uniquely, about for-profit corporations. The Supreme Court had previously accepted expenditure limitations placed upon for-profit corporations but routinely rejected similar limitations for media corporations and non-profit “ideological” corporations. In Citizens United, the Court, revisiting its precedent, rejected the argument that Congress had articulated any meaningful distinction that merited a set of rules restricting expenditures for for-profit corporations.

A similar debate is brewing in the context of the Patient Protection and Affordable Care Act. Employers offering health insurance plans must include coverage for FDA-approved contraceptives (including what the FDA calls “emergency contraceptives,” sometimes known as “abortifacients”), sterilization procedures, and other reproduction-related services.

A very small set of “religious employers” is exempt. But there are many more for-profit corporations owned and operated by religious adherents. These corporations may not fit the narrow exemption for “religious employers,” and religious adherents have argued vociferously that even ostensibly “secular” businesses fall under the scope of the Free Exercise Clause and the Religious Freedom Restoration Act (“RFRA”). (There are, of course, nuances between constitutional interpretation and statutory interpretation, which may yield different results.)

Do they? District courts in Colorado, the District of Columbia, and Missouri have punted on the issue. A district court in Oklahoma did the same, in part; but, it also found that, absent precedent that “secular, for-profit corporations” have free exercise rights, plaintiffs failed in their Free Exercise Claims. It also suggested that RFRA applied to “religious organizations, not general business corporations.” Justice Sotomayor, in denying an injunction, specifically noted that the Supreme Court has not addressed “similar RFRA or free exer­cise claims brought by closely held for-profit corporations and their controlling shareholders.”

Well, do they? Can the Supreme Court ascribe a telos to for-profit corporations? Does it matter that Hobby Lobby is closed on Sundays? That Mardel Christian bookstores are “dedicated to renewing minds and transforming lives”? If there’s a possible theological dimension to Division I FBS football, would we (or should we) care?

Jonathan Adler isn’t necessarily persuaded. Ed Whelan is. And Josh Blackman is asking questions.

The same questions arose in Citizens United, and they arise here again. There, no one really disputed that media and non-profit ideological corporations had First Amendment protection. Here, no one really disputes that, say, a religious group called O Centro Espirita Beneficiente Uniao Do Vegetal has First Amendment protection.

When it comes to for-profit corporations, however, there are hints (and this is my modest prediction) that the Court’s refusal to inquire into the purpose or form of the corporation in the election law context may very well apply to the religious liberties context. The burdens placed upon corporations are likely to face the same scrutiny, regardless of the purpose or the form of the corporation. And that means, businesses like Hobby Lobby, under the Court’s precedent in Citizens United, would be treated as any other individual, church, or non-profit organization making a Free Exercise claim.

But, would anyone hazard to make a bolder claim?

Emancipation Proclamation

Today marks the sesquicentennial of the Emancipation Proclamation, which made the Civil War explicitly about ending the institution of slavery. The timing is appropriate, given the success of Lincoln and its focus on a different legal document and process to emerge from Lincoln's presidency (good posts on the legal procedures in the movie here, here, and here).

The Majoritarian Senate

Many thanks to Dan Markel for allowing me to make a one-time appearance on this blog.  Recently my co-author, Gregory Koger, and I completed a draft of a paper on the filibuster entitled "The Majoritarian Senate," which is now up on SSRN.  

In the paper we demostrate that the a majority of senators can reform the filibuster at any time using ordinary Senate procedures.  We show that reforming the filibuster does not require a supermajority of senators, the beginning of a new Congress, or any appeals to the Constitution (let alone judicial review).  The argument is simple, and one that a lawyer would certainly appreciate.  Just as one can change the meaning of the Constitution through interpretation, a majority of senators can change the rules that constitute the modern Senate filibuster by reinterpreting them.  

Oddly enough, and this came as a surprise to me, the procedures for Senate rule interpretation cannot be filibustered, can be used at any time, and historically have been used by both the House of Representatives and the Senate to limit filibustering.  In fact, the paper shows that the House abolished the filibuster by essentially using the same procedures for rule interpretation as the ones we describe in the paper.

The paper is still a draft, so I would welcome any comments you may have.  Part of why we posted the draft now is hopefully to reach policymakers as they negotiate possible filibuster reform proposals.  Even if filibuster does not happen in January, we hope that supporters of reform will recognize that they do not have to wait for a new Congress to try again.  More broadly, the goal of the paper is to show that Senate rules and procedures are no obstacle to reform. All that is needed is the will of a determined majority of senators.  In other words, when it comes to filibuster reform, don't hate the game, hate the players. 

A statement too far?

We live (thankfully) under a Brandeisian "remedy to be applied is more speech" model of the freedom of speech, which protects "verbal tumult, discord, and even offensive utterance" and accepts "verbal cacophony" as "necessary side effects of the broader enduring values which the process of open debate permits us to achieve." One underlying theory of that model is that eventually speakers will be exposed--one statement will go too far or be so totally tone-deaf, ungrounded in reality, insincere or cynical that the speaker loses all credibility.

I wonder if Wayne LaPierre (if not necessarily the NRA as a whole) hit that point yesterday. Probably not, truth be told. But we can hope.

Thoughts on presidential succession

I had not thought about this until it was pointed out, but the death of Hawaii Sen. Daniel Inouye brings with it a change in the President pro tempore of the Senate. That office now passes to Sen. Patrick Leahy, the senior-most Senate Democrat. At Slate, Matthew Yglesias argues against having the P/P/T third in the line of presidential succession. Yglesias primarily focuses on the fact that the P/P/T is not even a chosen or recognized party leader; in fact, the only qualification to be P/P/T is to be really old and a member of the majority party.

Ironically, Yglesias points out, Leahy also chairs the Judiciary Committee, meaning he now has the power to at least begin the process of creating a better line of succession by pulling himself out of it. (It is not clear whether Yglesias wants to move to  cabinet-only succession and also remove the Speaker of the House from the succession order or whether he just wants to acknowledge the realities of Senate structure and the differences between the House and Senate).

On politicizing and making public policy

One of the many phrases that should be retired from all serious public discourse is "this is not the time to politicize a tragedy" (and similar ways of framing the same idea). Another way of saying "politicizing" a tragedy is "making public policy in light of" a tragedy, policy that, we hope, will prevent similar bad events from recurring. All law is made in a factual context or in response to some set of facts or circumstances, especially a unique, tragic event. That is inherent in the nature of law. So please stop suggesting that tragedies should not be a basis for public policy--they inevitably are.

Of course, making prospective legal rules in response to a special factual context, especially a tragic one, may not be the best way to do make law, as Fred Schauer argued. So rushing to enact new gun-control laws is not necessarily the answer--nor is it likely to produce wise policy that will succeed in preventing future tragedies. But reckless pejoratives such as "politicize" should not be used to short-circuit real policy discussion or to run from having the discussion at all.

Standing and marriage equality

SCOTUS today granted cert on two marriage-equality cases--the Prop 8 case out of the Ninth Circuit (Hollingsworth v. Perry) and one of the Defense of Marriage Act cases (United States v. Windsor, the one out of the Second Circuit, involving a woman seeking a refund on taxes paid on her late same-sex spouses death). The Court also ordered briefing on a bunch of Article III standing issues in both cases. The standing issue in Hollingsworth is whether the proponents of the ballot initiative had standing to intervene to defend the law in the trial court or to appeal the adverse district court ruling, once the governor and attorney general declined to defend it; the Ninth Circuit, relying on the California Supreme Court's answer to a certified question, held that the proponents had standing to represent the interests of the state. For Windsor, the issues are whether the executive can appeal to SCOTUS (since it formally prevailed in the lower courts by getting what it wanted--the law was invalidated) and whether the Bipartisan Legal Advocacy Group ("BLAG"), a committee of House Republicans who took up defense of the law when DOJ changed its litigation position, have standing to defend the law at all.

Earlier this year, Matthew Hall (Georgia) and I had an exchange in Fordham Law Review on these underlying standing issues; it is worth flagging. Matt argues for a deeper theoretical understanding of "standing to defend," using the marriage cases as an exemplar; he concludes that the Prop 8 proponents have standing, but BLAG does not. My response argues that if we just dump the idea of sovereign immunity, we would not need to have this conversation at all; either the United States or the State of California could be sued and could defend and appeal by name. And we would not have to waste all this time and energy figuring out who the "right" or "proper" defendant is, because the government entity obviously is a proper and interested party in a case involving the constitutionality of its laws.

One other note: David Cruz (USC) has a blog and has written about the standing issues throughout the Prop 8 litigation, including this post sharply criticizing the Ninth Circuit's standing decision and its conclusion that the initiative proponents somehow have received delegated authority from the state executive to defend the law in court.

Exposing racist speech, shaming racist speakers

Following on my discussion last week about the piece at Jezebel outing racist tweets by random high-schoolers after President Obama's reelection: Hello There, Racists is a Tumblr that collects racist tweets, Facebook posts, blogs, etc., along with identifying information such as name, school (a cursory look at the site suggests that most of those caught are minors), and photograph. (H/T: My colleague Tracy Pearl). The identifying information is put out by the posters themselves on their own social media sites, which makes this slightly different than the Jezebel post, which went digging to find the kids' schools. The goal of both is to prompt social consequences--professional, athletic, academic--for posting obnoxious ideas. Emily Bazelon at Slate criticizes this sort of crowd-sourced "outing," arguing 1) public shaming is unlikely to cause them to rethink their ideas or statements and more likely to just make them indignant and 2) teenagers don't fully understand how exposed they are on social media. Much depends on whether we believe teenagers understand (or should understand) what ideas are morally wrong and socially unacceptable and thus should bear the consequences, however long-term, of espousing (seemingly proudly, to read some of the posts) such ideas.

Two things to watch going forward:

    1) Are some public schools going to find their students on this site and punish them for their posts? And if so, how will those cases play out in court? As I wrote previously, assuming these posts were not written on school time, no coherent conception of student speech would authorize school punishment for this expression.

    2) Can the creator of the Tumblr keep the readership on a leash? As this post describes, one of the blogs captured on the Tumblr had to be taken down because threats were made to the subject of the blog. The creator of the Tumblr admonished his readers: "[I]f I get credible reports of threats, I will have to take down this blog. So if you want racists to be exposed, do not be threatening or intimidating.They deserve to lose their jobs and scholarships, but not threats of any kind." Is this the editor preemptively protecting himself on the off-chance that one of his readers does something stupid (no way he would be legally liable, but what ethically responsible is another story)? Is it possible to engage in this sort of crowd-sourced public shaming without things getting out of hand? Are the shamers likely to be as irresponsible as those they are trying to shame?

Score 1 for Quants, but Score 5 for Pollsters

There's been a lot of talk after the election about how one big winner (after Obama, I imagine) is Nate Silver, of the FiveThirtyEight blog. He had come under fire in the days/weeks leading up to the election for his refusal to call the race a "toss up" even when Obama had only a narrow lead in national polls. He even prompted a couple of posts here (in his defense). Turns out that Silver called the election right - all fifty states- down to Florida being a virtual tie.

But that's old news. I want to focus on something that may be as, or even more, important. The underlying polling. We take it for granted that the pollsters did the right thing, but their methodology, too, was under attack. Even now, there are people - quants, even - who were shocked that Romney lost because their methodology going in to the election was just plain wrong.

So, that's where I want to focus this post after the jump - not just on "math" but on principled methodology.

It's easy to take the pollster methodology for granted. After all, they've been doing it for many, many years. That, plus the methodology is mostly transparent, and past polls can be measured against outcomes. Taking all of this methodology information into account is where Silver bettered his peers who simply "averaged" polls (and how Silver accurately forecasted a winner with some confidence months ago). Everybody was doing the math, but unless that math incorporated quality methodology in a reasonable way, the results suffered. 

It didn't have to be that way, though. As Silver himself noted in a final pre-election post: 

As any poker player knows, those 8 percent chances [of Romney winning] do come up once in a while. If it happens this year, then a lot of polling firms will have to re-examine their assumptions — and we will have to re-examine ours about how trustworthy the polls are.

This is the point of my title. Yes, Silver got it right, and did some really great work. The pollsters, however, used (for the most part) methodologies with the right assumptions to provide accurate data to reach the right answers. [11/11 addition: Silver just added his listing of poll result accuracy and methodology discussion here.]

The importance of methodology to quantitative analysis is not limited to polling, of course. Legal and economic scholarship is replete with empirical work based on faulty methodology. The numbers add up correctly, but the underlying theory and data collection might be problematic or the conclusions drawn might not be supported by those calculations.

I live in a glass house, so I won't be throwing any stones by giving examples. My primary point, especially for those who are amazed by the math but not so great at it themselves, is that you have to do more than calculate.  You have to have methods, and those methods have to be grounded in sound scientific practice.  Evaluation of someone else's results should demand as much.

Marriage equality in the Supreme Court

With the success of marriage equality at the ballot box on Tuesday, nine states and the District of Columbia, now allow marriages between same-sex partners. And the failure of the ballot initiative in Minnesota, which would have preemptively halted any judicial or legislative allowance of marriage equality, could be taken as a reflection of new societal views.

The question is how that affects the SCOTUS's decision as to whether to take any of the marriage-equality cases currently pending before it and, if it does, how to resolve them. One view has been that SCOTUS would not take the lead on this; instead, (as it did with anti-miscegination laws), it would await some critical mass of states getting to equality on their own, then step in to yank the remaining states into line. Of course, we do not know what that critical mass would be.

Before Tuesday, I would have said this would mean the Court denying cert in Perry (the Prop. 8 case), especially in light of the narrowness of the Ninth Circuit decision. But is 9 states, and some momentum on ths issue, enough? And is it enough for the Court to take the leap and say that barring same-sex marriage violates the Fourteenth Amendment (assuming there are five votes for that position)?

The DOMA cases present a much trickier issue on this point, because the Court is virtually obligated to take one of these cases. It cannot leave a situation in which a federal statute is unconstitutional, and thus inappicable, in just the Second Circuit (where two of the nine equality states are and a third recognizes same-sex marriages performed elsewhere). No we're back to the question of whether nine states is sufficient to give the Court popular cover (again, assuming five votes for marriage equality).

Some thoughts on the election

My political views have been made obvious in this forum in the past, so I'm pretty happy this morning. A couple of random thoughts.

1) My confidence level picked up around 5 p.m. yesterday afternoon when I picked my daughter up from school; that's when I heard the results of the "election" at her school, which went 125-75 for Obama. As we all know, as Temple Beth Am Day School goes, so goes the country.

2) We had a split decision on sports predictors. A National League team won the World Series, which means a Democratic President; this is now 17/27 (62.9%). On the other hand, the Redskins lost at home on Sunday, their final home game before the Election, but the incumbent party retained the White House; this is now 17/19 (89 %). I have to admit, my anxiety level actually rose after that game.

3) Does this result suggest that independent expenditures by outside groups are not all there is to elections? And that Citizens United is not the death knell of democracy and otherwise the root of all that is wrong with the country? Republican Super PACS threw big money at six races--five Senate races and the presidency--and lost all six. Perhaps running non-stop ads for two months is not the way to appeal to voters, so simply throwing lots of money into the mix does not ensure electoral success. Or is Obama uniquely successful in organizing on the ground and at gathering large numbers of small donations? So while that organization could overcome unlimited individual and corporate PAC money, perhaps massive spending will make all the difference in four years, when Obama leaves the scene.

4) What happens with the Supreme Court? Do Scalia and Kennedy try to hang on until 2017? Does Ginsburg step aside after OT 2013 (in June 2014) to give Obama the appointment? And does Obama (potentially with 56-seat support and the possibility of filibuster reform in the Senate) make judgeships a higher priority in his second term?

5) Speaking of the Court: A comment on one poll-aggregation blog said that Obama owed his reelection to John Roberts. While the direct causation is dubious, of course, there is a point there. Popular or not (and I still believe the law will increase in popularity as it is implemented over the next several years), this was a signal legislative achievement; to have it invalidated would have left a gaping hole in his record that the public might not have forgiven. Unless he had run against the Court (something Democrats don't do well), he would have been hit hard with charges of "he rammed through this unpopular law that also was unconstitutional."

6) Finally, I must admit to one personal/professional perspective on this election. FIU's outstanding dean is Alex Acosta, an Assistant Attorney General and U.S. Attorney under George W. Bush. He might have been (I'm guessing at this completely--he and I have never spoken about it) a potential short-lister for either a high executive position or a judgeship under a President Romney (Alex is a pragmatist and, I believe, would be a great trial judge). So I'm happy that this election means four more years--of our current deanship and thus continued advancement for this law school.

Stealing signs

This sign is on a house in my neighborhood in Miami-Dade County. The owners had been displaying an Obama sign for a couple of weeks, which was no longer there on Saturday (Jen and I noticed it and actually discussed whether the owner had taken it down or it had been stolen). This new sign, with the added message, was back this afternoon. This is not the sole example of alleged sign theft I have seen. Another house, displaying a number of Romney signs, included a homemade one reading "Obama Vandals, stealing only stiffens our resolve," which I infer means they also had signs stolen or destroyed.

I do not know what it means for something to be Un-American or American; I certainly do not want anyone defining for me (nor do I have any interest in defining) what is or is not "American." I am reading the sign to say something like "stealing signs is inconsistent with the freedom of speech, which so many think of as a core American value." If so, I want to push back on that.

I previously descibed what I call symbolic counter-speech, in which one counter-speaks (in the Brandeisian sense) to a symbol using the symbol itself as the vehicle for the counter-speech. I identified three forms of symbolic counter-speech: 1) disengaging from the symbol (think Barnette); 2) confronting it with a competing, overriding symbol; and 3) attacking, often by destroying or eliminating, the symbol itself. Stealing a yard sign falls within the third category. The homeowner was obviously expressing his support for President Obama by displaying the sign (in a medium that the Supreme Court has recognized as uniquely important). Whoever took the sign was counter-speaking, expressing his opposition to Obama, by attacking and eliminating the supporting symbol. That is an unquestionably expressive act.

This does not mean the expressive act is unconditionally protected by the First Amendment, of course. Were they to find the thief, he could not successfully assert the First Amendment as a defense to a charge of theft, vandalism, or some other neutral, non-speech legal rule. So his expressive interests yield, in this situation, to the homeowner's interests in his private property. But that does not mean the person who stole the sign was not exercising that core American value of free speech.

One other thing. The new yard sign is two-sided, placed so that both sides can be seen by someone on the street. But the added message only was placed on one side; it was printed out on a sheet of white see-through printer paper. The resulting effect, which you can see after the jump, is obviously unintended, but highly ironic in light of much of the dislike for President Obama.

 

More on defending Nate Silver

Piling on Franita's post about the recent conservative attacks on Nate Silver: Deadsin offers (in the typical language of Deadspin, so be warned) a largely non-political explanation: Silver is being criticized (or at least questioned) by the political class (both activists and the mainstream media) for being a nerd relying on statistics, numbers, and math, rather than the "gut feelings" and "knowhow" and "real-world" experience that they have brought to the table for all these years. In other words, the political world is experiencing the same dynamic that the sports world (especially baseball) has been going through for about 15 years, since the rise of Moneyball and advanced metrics. Silver, of course, got his start writing for Baseball Prospectus. And as with many in baseball, the current guard in the political world either does not get it or does not want to get it. And as the math gets better, this will only intensify. By the way, Joseph Slater makes a similar point in a comment on Franita's post.

Thus, Chris Chilliza of WaPo could move Ohio into the "toss-up" category, despite the showing of fourteen polls for the past two weeks, in part because of the "absolute necessity for Romney to win the state if he wants to be president." So because Romney really wants/needs it, the state must be a toss-up. This does not sound much different from baseball announcers who insist that average-but-"scrappy" players are better than superstars who produce big statistics because they "want it more" and "will do whatever it takes to win."

By the way, for those of you who can't get enough of this poll aggregation stuff, check out the Princeton Election Consortium, run by Dr. Sam Wang, a neuroscientist at Princeton. He uses a different model than Silver (and actually has criticized Silver's approach), but with similar accuracy.

The Unappreciated Link between Health Insurance and Job Creation

Thanks to Prawfs for having me back. I hope to blog about a variety of things this time around, mostly in my primary areas of interest. But first, I've got a post that I've been thinking about for a while, and while I've got the bully pulpit, I'll try it out.

After two presidential debates (three if you count the “foreign policy” debate), a vice-presidential debate, and eighteen months of campaigning, the candidates seem to be missing a critical link between health care reform and job creation. This link undermines Governor Romney’s plan to create jobs through tax cuts as much as it represents a missed opportunity by President Obama to defend his signature legislation. I have views about the best way to bring affordable health insurance to everyone, but I won’t express those here. I don't want my main point to get bogged down in the details of how you get there. Instead, I’ll only point out the importance of widespread availability of such insurance.

More than tax cuts, and more than abandoned regulation, small businesses need customers. Health insurance is a critical but unappreciated link to provide these customers. I’ll give a personal example. In May of this year, my wife and I committed to a modest renovation of a part of our home. A couple months later, just before work was to start, I was diagnosed with an extremely rare condition that took two surgeons about six hours to repair . The bill for my five day stay at the hospital was about $133,000, and the doctor’s bills, CAT scans, and MRIs will easily put the total over $150,000. But I was insured. We had to pay for a chunk of the operation – about $2000 after all copays.

Coincidentally, work started on the house the day I came home from the hospital. We could continue with the plan, and our contractor and his employees, subcontractors, and supply houses will all see business. Our contractor may make over $250,000 per year, but I doubt it based on what we are paying for this work and what we are getting in return. He’s just a decent guy doing good work, but he needs customers – especially in a tough economy – and we would have been one less job. Our project isn’t the biggest one in the world; indeed, it’s a fraction of what I would have owed the hospital if I were uninsured. My insurance created jobs, and I am sure my insurance is not alone in that respect.

Insurance not only creates customers, it can help directly create jobs. Just last month, my sister—a podiatrist—seriously considered selling her practice for almost zero equity to become an employee at a large practice. This would have likely cut her lifetime earnings in half and forced her to lay off her three staff, one of whom is our mother! Why would she do such a thing? To get health insurance, of course. She has been denied several times due to a “preexisting condition” that is related to her sex, essentially healed, and never life threatening. In other words, she cannot get insurance at any price. Her staff is all insured by other means, so she can’t form a group, and even if she did her coverage would likely be limited by preexisting conditions. She is holding on for the ability to buy insurance under the new law, and we are all hoping it will come soon. She is surely not alone.

My sister’s story ties to a bigger job creation issue. Without the ability to obtain affordable healthcare, people will simply not form businesses and hire other people. They will remain employees. This is a much bigger implication of insurance cost reduction. I know how much small group insurance plans can cost; I used to negotiate them for my law firm. We wound up having to purchase major medical insurance while self-insuring the first $5,000 of medical expenses because our premiums rose at astronomical rates. My partners and our employees were not happy with the bureaucracy this created, but the alternatives were daunting. This is not an incentive to form a business, and shaving some percentage points of my top tax rate won't get me to create a business if I think I can't get insurance at any price. That's me, by the way. Not that I would ever quit being a professor (the greatest job in the world), but because of my condition I won't be able to get insurance without. I would be an employee for the rest of my life, without even the ability to take a year off that isn't a sabbatical that includes coverage. So much for harnessing bright ideas to hire others.

Maybe it would be better to have more expensive insurance available to fewer people like we do now, but justifying the status quo should take into account all the effects of insurance. Accessible, affordable health insurance creates jobs in ways no one is talking about, but they should be.

 

Mrs. Coach speaks

Still more on the dust-up over Mitt Romney using Clear Eyes, Full Hearts in his campaign and speeches: Actress Connie Britton (who played Tami Taylor, a/k/a Mrs. Coach) and Sarah Aubrey (an executive producer on the show) wrote an op-ed in USA Today criticizing Romney for using the slogan, insisting that the women of Dillon, Texas would not approve. The piece particularly focuses on issues of health care and women's rights--ACA, equal pay, the future viability of Planned Parenthood (they point out that the single mother of star running back "Smash" Williams worked there, a detail I did not know or remember).

Anyway, draw your own conclusions.

Politics, partisanship, and democracy

My thoughts and prayers go out to all the Prawfs family (including my own family in NJ, NYC, and Long Island), friends, and readers dealing with the effects of Sandy. I hope you all are safe and that you have your power back soon. I want to consider two things with respect to Sandy's effects on next week's election.

First, folks are beginning to talk about how the storm will affect the mechanics of the election and whether state and local governments (who wield exclusive authority to administer the electoral process) hit by the storm will be ready and able to carry out an election, both with early voting ongoing this week and Election Day itself next week. This has lead to discussions of whether the election could or should be delayed, either by congressional action or by unilateral actions of individual states or localities. Here is some good analysis of the constitutional and statutory issues involved. Rick Hasen argues that this again demonstrates the need for Congress to create a uniform national scheme to respond to natural and other disasters that affect voting. Hasen calls this another example of Congress failing to act on what should be non-controversial issues resolvable with non-partisan solutions. He compares congressional inaction here with congressional inaction on ensuring continuity in the House of Representatives in the event of a terrorist or other attack.

Actually, though, the current situation brings to mind a different concern on continuity of government, a subject on which I wrote in my early scholarship. I have argued that if we ever get into the statutory line of succession (below the Vice President), we should hold a special election as soon as practicable (within 3-6 months, for example), so that the ultimate recovery from a mass catastrophe can be lead by a popularly chosen executive. But  I may have to rethink that, depending on how things play out in the next week. If a bad storm affecting five or so states can hamper a national election, it may not really be possible to hold one a few months after a catastrophic attack on the nation and the government itself.

Second, when asked about the election, New Jersey Governor Chris Christie responded as only he can: "I don't give a damn about Election Day . . . This administration, at the moment, could give a damn less about Election Day." Now, obviously the first concern must be ensuring public health and safety, getting roads and debris cleared, and getting the power back on. But Christie's bluster reveals an unfortunately blase attitude about the election and thus about democracy. It suggests that the election is not important; it is "partisan" and "political" and thus not what we should be thinking about in times of high-minded crisis, when we should put our differences aside and come together, blah blah. It is the same attitude reflected in 2008 when John McCain called for a suspension of the campaign and cancellation of the debate so he and then-Senator Obama could return to Washington to work on bailout legislation.

But, as I wrote four years ago, elections are the procedural element that most fundamentally identifies our socio-political system as democratic, as a system in which here, sir, the people govern. Partisan politics describe and define the process by which we select the "immediate representatives" through whom the people act in governing themselves. And elections work through a two-party adversarial process.

Thus, inability to carry out an election is no small thing and should not be treated, or discussed, as such. It would be no mere minor inconvenience if New Jersey or New York is unable to administer elections next week--or unable to efficiently administer elections in which those who want to vote are able to do so. It would be a genuine problem for the functioning of a supposedly democratic national government. Alternatively, if we really believe that we must "come together" and put all electoral conflicts aside and not concern ourselves with an ongoing election, then Hasen is right that we must establish mechanisms to postpone the whole thing or otherwise alter the rules. We should not ignore the problems or let the election go forward as planned and simply accept sub-optimal processes in those places still recovering from the storm.

Again, the election should not be the top concern at this moment, either for the people trying to recover or for the governments trying to help them. But neither should the election be pooh-poohed as an unimportant triviality beneath government concern.

The remedy to be applied is distancing speech

I have not written about the numerous controversies that have sprung up over anti-Islam ads by the American Freedom Defense Initiative on public-transit billboards throughout the country. The ads feature the slogan "In any war between the civilized man and the savage, support the civilized man" and urge people to "Support Israel/Defeat Jihad." Transit authorities have sought various ways to deal with ads that many find offensive and which have sparked fears of both anti-Muslim discrimination and Muslim violence. Efforts to block the ads have, quite correctly, failed--transit billboard spaces are public fora and the objection is pretty clearly content- and viewpoint-based.

One solution to post disclaimers next to the AFDI ads, stating that Muni "doesn't support the message" (San Francisco's Muni) or, for those who want legal detail,  "This is a paid advertisement sponsored by [sponsor]. The advertising space is a designated public forum and does not imply WMATA's endorsement of any views express." (Washington, D.C.'s WMATA). Pam Geller, a conservative blogger, co-founder of AFDI, and driving force behind this ad campaign, derided the San Francisco plan as "the manifestation of Sharia in Western society," which seems just a tad overwrought.

Obviously, government can respond to private speech in a public forum; a disclaimer distancing the government from AFDI's message is one very good way to respond to or oppose a message being espoused in the forum. We might question whether it is necessary, whether anyone would seriously believe the transit authority endorses every message on every billboard in the Metro stop. But making that disassociation explicit seems an appropriate way for government to proceed.

But there arguably is something different at work here than simple government speech. Here, the transit authorities are responding to a message through and with the message itself. The government is slapping its own message right next to (and as part of) the private message and using the original message as the vehicle for its own.  This then looks less like government counter-speaking to the private speaker than the private speaker being compelled to counter-speak to itself. By making the counter-speech part of  the private speech, it looks a lot like mandatory warnings, which ordinarily raise concerns outside the commercial speech context. So the transit authority could post signs throughout the forum explaining designated public forums, its obligation to accept the offensive ads, and its non-endorsement of the message; but its power to place that sign next to particular billboards from which it wants to distance itself is more limited.

Alternatively, perhaps the disclaimer is better understood not as government counter-speech (which receives no First Amendment scrutiny) and more as a condition on, or term of access to, the traditional public forum (akin with having to pay a fee), which does receive constitutional scrutiny.  Then the question is how broadly government applies the new practice. It would be plainly unconstitutional if the government singled out only this speaker or message for a disclaimer or if it singled out only certain speakers or messages in content-based terms. The WMATA policy apparently will apply to all "viewpoint" ads, a non-legal term that I am guessing means noncommercial ads. That is better than only targeting AFDI. But distinguishing commercial and non-commercial is still content-based, so WMATA must justify the distinction; the likely argument is that only noncommercial speech requires a disclaimer because only noncommercial speech creates a risk that the authority will be associated with the controversial or offensive message (although I wonder how true that is). Assuming that these disclaimers are more than ordinary government speech and thus are subject to some First Amendment scrutiny, the transit authorities would be better off using disclaimers to all ads of all kinds.

More on electoral politics and "Friday Night Lights"

A follow-up to my post about Mitt Romney coopting "Clear Eyes, Full Hearts, Can't Lose" from Friday Night Lights and the objections of the show's producer:

Dan Hopkins (political science at Georgetown), writing at The Monkey Cage, applies a model to predict how the major characters would have voted in 2008. He concludes that pretty much everyone would have voted for McCain, including Mrs. Coach (not sure I agree with that one). He does not discuss Julie Taylor (Coachette, if you will), whose "get-me-out-of-this-small-town" attitude likely makes her a Democrat. Definitely worth a read.

The Wrong Way to PSA

People have  been discussing Bridget Mary McCormack’s recent, 4-minute web ad in support of her candidacy for the Michigan Supreme Court – a video which features the reunited cast of The West Wing.  The ad is clever enough for what it is – a way to raise McCormack’s profile in a down-ballot race where citizens are less likely to vote.  And it says all the things a judicial candidate must say to win over voters: McCormack favors “justice for ordinary people, for families with sick kids, for victims of domestic violence.”  She has "fought to free innocent men and women, and put the actual criminals behind bars."  Reciting these qualities is somewhat trite, of course – what judicial candidate would ever come out as soft on crime or against families and victims? – but otherwise, it’s all well and good.  As an advertisement for a particular candidate in a contested race, it seems quite effective. 

However, a shorter version of the ad – pitched as a nonpartisan public service announcement – fails spectacularly.   That version retains the identical West Wing “walk and talk” setup but omits any specific mention of McCormack’s qualifications.  Instead, it positions itself solely as (in CJ’s words) “a gentle reminder for people to look for the nonpartisan section on their ballot and go vote there.”  Voting is important, the ad tells us, because state supreme courts rule on issues that affect millions of Americans, like civil rights, workplace rights, and the environment. 

These are certainly issues where an informed vote matters.  But in the short-form ad, the Bartlett Administration braintrust offers no guidance whatsoever on how citizens might actually cast such a vote.  Indeed, the ad doesn’t even recommend that citizens learn anything about the candidates before stepping into the voting booth.  The cognitive dissonance is jarring: your vote is critically important, the ad suggests, but not so important that you should take the time to enlighten it in any way.

The short-form PSA is all the more troubling because it deliberately targets citizens who engage in straight-ticket voting for legislative and executive races (i.e., checking one box to vote for all Democrats or all Republicans).  As Meryl Chertoff and Dustin Robinson recently highlighted, this “check one and you’re done” approach raises significant accountability problems in states with partisan judicial elections. In nonpartisan judicial races, the dangers of voter ignorance are exacerbated even further: without any readily available information, voters who otherwise rely on party affiliation are apt to choose among candidates based on factors like gender, perceived race or ethnicity, a familiar-sounding last name, or even complete whimsy.  Toby, Josh, Donna and the gang may as well look into the camera and say, “Go into the booth and flip a coin.  People’s lives depend on it.”

There are better ways to get out an informed vote in judicial elections.  Two years ago, the Colorado Bar Association sponsored this lighthearted PSA which encouraged voters to actually learn something about their judges before deciding their fates in the voting booth.  To be sure, Colorado benefits from some structural advantages over Michigan, including retention elections and a formal judicial performance evaluation program (the benefits of which I discuss here).  But at least the message in Colorado was the right one: if you’re going to vote in judicial elections, be responsible enough to learn something about the people on the ballot before you do.  Regardless of how your state chooses judges, that’s a good message for all of us to take into Election Day.

Swing Staters Have All the Fun

As we march forward towards election day I must admit I'm starting to have a bit of "swing state" envy.  I mean, let's face it, it's not as if you East Coasters will tuck in the kiddies and stay up all night, biting your nails until the California results are in.  Everyone knows how our story ends.  Besides reducing polling costs, the certitude of the California vote means that presidential candidates only need visit us in Los Angeles to make a withdrawal at "Bank Hollywood"--and that makes me a bit cranky and, yes, jealous of you in electorally glamorous states like Ohio et al. 

Admittedly, the only election law nuances that I know are that (i) the "swing state" phenomena is a consequence of our Electoral College system and (ii) most states, including California, cast their electoral votes in "all or nothing" fashion, rendering the minority vote irrelevant to the national result.  I also know that not all are fans of the Electoral College and a recent proposal, called the National Popular Vote, would basically abolish it and turn presidential elections into a single national election.  A number of states (California included, of course) have signed on.

That pretty much exhausts my knowledge of election law.  Fortunately, my colleague, Derek Muller, knows much more.  Derek has written a fascinating piece titled Invisible Federalism and the Electoral College that will be coming out soon in the Arizona State Law Journal.  In his article, Derek argues that proponents of the National Popular Vote undervalue the importance of the Electoral College's support of "invisible federalism" principles.  Derek sets forth a strong argument that election law should be left to the mandate of individual states and that state-run elections should continue to operate intra-state, rather than be dumped into a national bucket of votes.  For instance, felons can vote in some states but don't have a right to vote in others.  In that regard (paraphased through my own naive lens of the subject), the Electoral College may not help California get noticed by candidates, but it may better support Federalist ideals if we continue to let states decide issues like voter eligiblity rather than homogenize the process in a national vote.  Hmm, felon voting--not sure that would change the California results either.  So for now, it looks like you on the East Coast can still get your beauty sleep and I'll still be cranky.

The Presidential Election and the Lower Federal Courts

Over at the Volokh Conspiracy, Ilya Somin wonders why no one is asking the Presidential candidates about judicial nominations during the debates.  I sympathize with the concern but find it a bit misplaced: in any of the typical debate formats, the responses will inevitably tend toward vague descriptions of “strict constructionists” or individuals with sufficient “empathy.”  This may rally the base but otherwise offers little insight.   (The problem isn’t limited to Presidential aspirants: in their second debate, Massachusetts senate candidates Elizabeth Warren and Scott Brown offered two of the least illuminating answers ever when asked to name their model Supreme Court Justice.)

One way to get better answers on the candidate’s view of the relevance and importance of judicial nominations is to focus on the lower courts.  The Supreme Court captures public attention, of course, but it is the lower courts where most citizens have contact with the federal judiciary, and where a President can leave a more lasting legacy.  To that end, here are two questions I would like to see posed to the candidates before Election Day:

President Obama, you inherited 41 federal district court vacancies on Inauguration Day 2009, yet during the entirety of your first year in office you nominated a mere 21 people to fill those vacancies. (Fuller details here.)  Today there are 62 vacancies in the district courts, representing a shortfall of almost 10 percent.   Despite this crisis, and even though you enjoyed a significant Democratic majority in the Senate for your first two years in office, your overall pace of lower court nominations has lagged significantly behind your two immediate predecessors.  Why?

Governor Romney, during your time as Governor of Massachusetts you established a Judicial Nominating Commission to vet judicial candidates and send the most promising individuals to you for further consideration.  The Nominating Commission was heralded as a model for the country, particularly since it relied on a blind review that did not consider the candidate's party affiliation.  Yet some have complained that you stripped the commission of many of its powers toward the end of your term in order to put a more partisan stamp on the judiciary.  What lessons did you learn from the Nominating Commission experience, and as President, would you favor the expanded use of senatorial screening committees to help select qualified candidates for nomination to district court judgeships?

Dorf against debate

Here, hereHear, hear. I haven't watched any of the debates and don't plan to start now. The only thing I would add against them is that they are largely theatre, a performance, not unlike confirmation hearings.