Tuesday, July 02, 2013
Legal plausibility v. Factual plausibility
In her essay on Conley v. Gibson for Civil Procedure Stories, Emily Sherwin calls Conley "precedent by accident." In the (in)famous "no set of facts" language, the Court was describing a standard for legal insufficiency, referring to a situation in which the legal right asserted did not exist as law. But lower courts ran with it as a standard for factual insufficiency and it soon came to mean that a plaintiff need not allege any particular facts, so long as some facts might come up later in the case.
Ironically, the new plausibility standard from Iqbal and Twombly is now presenting this problem in reverse. Twiqbal established a new standard for factual insufficiency and the quantity and quality of the facts the plaintiff must plead--the plaintiff must allege non-conclusory facts that, taken as true, plausibily show a violation of rights and the opportunity to recover. But lower courts have begun using plausibility for legal sufficiency--whether the plaintiff's legal arguments, as applied to seemingly undisputed facts, are plausible. Courts are denying 12(b)(6) motions where law is in dispute.
This is particularly prominent in constitutional litigation. The Tenth Circuit recently did this in a First Amendment case. And Judge Bernard Friedman of the Eastern District of Michigan did the same yesterday, holding that a challenge to the validity of state prohibitions on same-sex marriage and on unmarried couples adopting survives a 12(b)(6) motion. After pointing out that both parties cite Windsor in support of their claims, the court states that "construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court's current statement of the law, this Court cannot say that plaintiffs' claims for relief are without plausibility."This is just wrong. Plausibility has no role to play with respect to the validity of the plaintiffs' legal arguments. A ccannot be legally plausible--it is either legally valid or legally invalid, at least when the facts alleged are uncontested, as in the Michigan case.
The only facts that matter are these and they are not in dispute--plaintiffs are an unmarried same-sex couple, want to adopt children together, cannot marry because of state law, and cannot adopt children together because of state law. The only issue on the motion is whether these provisions of state law violate equal protection and due process, as interpreted in Windsor. That is purely a question of law for the court to decide, which is precisely what 12(b)(6) was designed for. There is no reason for the case to proceed further. No discovery is necessary, there is no fact-finding for the court to do, and no need for further factual development; the case is teed up for resolution right now, depending entirely on the legal issue of how the district court interprets Windsor. And resolving the legal dispute is the court's ultimate job. It thus makes no sense for the court to refuse to resolve the legal question now because the the plaintiff's claim is "plausible," then decide the exact same legal question six months from now, when nothing will have changed on the record before the court other than the parties repeating the same legal arguments that they could make right now. If Windsor invalidates state law, the court should deny the motion (and the plaintiffs should be making their own motion); if Windsor does not affect state law, the court should grant the motion.
The district court exacerbates its error with this closing line: "Plaintiffs are entitled to their day in court and they shall have it." This is nonsense. What does it mean to have one's day in court with respect to a legal question? It means you get a judge to resolve that question. But that is what Judge Friedman just refused, to do, at least for the moment.
Monday, July 01, 2013
Apolitical sports leagues? No
Beginning October 1, people will be able to shop for the expanded insurance coverage made possible by ACA. As part of its publicity effort, the Department of Health and Human Services is seeking to partner with the NFL and other sports leagues in publicity efforts. This does not sit well with GOP Sens. Mitch McConnell and John Cornyn, who sent this letter to Commissioner Roger Goodell.
The letter chastises the league for risking its "inclusive and apolitical" brand, expressing surprise that a pro sports league would take "public sides in such a highly polarized public debate." But I would reject the suggestion that the NFL, or any other sports league, is or ever has been apolitical. Putting aside the way leagues regularly engage in politics for their own direct benefit--antitrust, labor law, stadium funding. Leagues and teams regularly get involved in public issues--gay rights, women's rights, racial equality, war and the military. At least some of these are at least as contentious as ACA. In fact, as the letter acknowledges, the Boston Red Sox in 2007 participated in efforts to encourage enrollment in Massachusetts' program (which was the basic model for ACA). The reason for this being different, they argue, is that ACA passed on a party-line vote using "legislative gimmicks" and "ridiculed political favors." Stated differently, ACA passed through the ordinary legislative process, but the process worked to our disadvantage and produced a law we don't like. Thus, the law is illegitimate, so you, as an apolitical entity, should stay out of it.
There also is a hint of the paranoid. They express concern for "the Obama Administration's record of using the threat of policy retaliation to solicit support for its policies or to silence its critics" and helpfully tell the NFL to come to them if they are feeling threatened or coerced so the Senate GOP can protect them from the big, bad President. Of course, in emphasizing how unheard-of and wrong-headed the NFL's involvement would be , the letter could be read as its own threat designed to solicit support for the McConnell/Cornyn side in this debate. It actually is the classic bully trick--you better come to us for protection from that other guy who is threatening you.
Sunday, June 30, 2013
SSM ongoing in CaliforniaSo reports Lyle Denniston at SCOTUSBlog. On Friday, the Ninth Circuit lifted the stay on the district court injunction and California began performing same-sex marriages across the state (so far, I have heard no reports of recalcitrant county officials). Prop 8's proponents petitioned Justice Kennedy (the circuit justice for the Ninth Circuit) to reinstate the stay, arguing that because SCOTUS' mandate had not yet issued (that does not happen for 25 days, pursuant to SCOTUS rules), the Ninth Circuit still lacked jurisdiction over the case and thus could not lift the stay.
Lyle notes that Kennedy did not explain his decision. It might have been that the petitioners, lacking standing to appeal, also lacked standing to challenge what the Ninth Circuit did with the stay. It might have been that the Ninth Circuit retained jurisdiction over its own stay of the district court order, even if it no longer had jurisdiction to rule on the merits of the case.
Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?
This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.
Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.
The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.
The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement.
But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)
Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?
That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.
Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack
Saturday, June 29, 2013
Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters
I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful.
Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.
What Exactly Is the Indian Child Welfare Act?
The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible.
In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.
Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding” - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.
This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.
How the Court Narrowed ICWA
It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her.
(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)
The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.
For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked.
Posted by Addie Rolnick on June 29, 2013 at 03:12 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack
Thursday, June 27, 2013
Where does the marriage equality movement go next?
Supporters of marriage equality are rightly ecstatic over yesterday's events and it might have been the best they could have hoped from this Court in a single term. But when the ecstacy recedes, the movement is faced with a fundamental question--what do we do now, since the one thing SCOTUS did not do was end the discussion once and for all.
As Marty Lederman notes, on August 2, there will be marriage equality in D.C. and 13 states--California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law takes effect August 1), New Hampshire, New York, Rhode Island, Vermont, and Washington. If the theory is that SCOTUS wants a critical mass of states to adopt marriage equality before (a la Loving) it pulls the outliers along via the Fourteenth Amendment, more states probably are needed. So what states should the movement target? Presumably, if pursuing popular means (legislation or ballot proposals), you look to "blue" states. But where? Illinois, is an obvious choice (Democratic governor, large Democratic majorities in both houses, Obama's home state), but a bill to give same-sex couples the right to marry was recently held back because it did not have the votes. New Jersey is also blue, although it has a Republican governor, as do Pennsylvania and Wisconsin. Plus, those states, like Michigan, have a bit too much of a conservative streak. Oregon? Colorado?And should the focus be on the legislatures and voters or on the courts? As the Slate piece cited above notes, the popular momentum from last November seems to have slowed a bit (perhaps because there are no states that are obvious candidates). And maybe yesterday's events signal that federal litigation is now a better strategy than it was a few years ago, helped by the district court opinion in Perry and strong language in Windsor? If so, in what states and in what circuits? Do you target Illinois or Wisconsin and hope you get Posner on the panel? Do you target Pennsylvania or New Jersey hoping, where the Third Circuit has more Democratic appointees and something of a right-friendly reputation? A judge in the District of Nevada upheld that state's voter-approved (twice) prohibition; when the plaintiffs appealed, the ballot proponents then tried to get SCOTUS to hear the case directly. Yesterday, SCOTUS declined. So that case goes back to the Ninth Circuit, where I imagine (hope?) the Ninth Circuit to invalidate the prohibition. Does SCOTUS immediately take that case for next term (as Justice Scalia predicted in his Windsor dissent)?
Remedial effects of procedure
A colleague proposes the following: The overly broad language of Judge Walker's injunction, and thus the confusion about its scope, is a product of the state's refusal to defend in the district court and turning defense over to the sponsors.
I think there might be something to this. Kamala Harris' letter states that the state officials litigated on the belief (which they undoubtedly preferred) that any injunction should apply statewide as to all county clerks and registrars and as to all persons, not only the named plaintiffs. So they were not going to object to the overbroad injunction or bring the problem to the district court's attention, as an ordinary defendant, who actually defends, would have done. On the other hand, the sponsors likely were not thinking in remedial terms, since they were not the ones who would be subject to any injunction; they therefore had less incentive to really be on guard with respect to this ssue.
Wednesday, June 26, 2013
What's next in California?
Right or wrong (I believe wrong), Hollingsworth finds no standing to appeal to either to the court of appeals or SCOTUS, vacates the Ninth Circuit decision invalidating Prop 8, and reinstates (or at least sets the stage for reinstating) the broad injunction issues by Judge Walker in the Northern District of California.
So what happens now?
The first step is for the Ninth Circuit to lift the stay on the district court injunction, which it will do when the case is back in its jurisdiction, as part of an order dismissing the appeal for lack of appellate jurisdiction. California Attorney General Kamala Harris announced that she would immediately ask the court of appeals to lift the stay.
But then we must figure out what, exactly, the injunction does. Judge Walker wrote: "Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official [state and county] defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8."The case was not brought as a class action, but only on behalf of two couples who sought marriage licenses in two counties (Los Angeles and Alameda). So the most appropriate injunction would prohibit enforcement of Prop 8 (i.e., would require issuing licenses) only as to those two couples and only by the two county clerks and the state officials named as defendants. On the other hand, Walker's injunction is written to be much broader, prohibiting all enforcement by the named defendants, and those subject to the named defendants control or supervision, against all persons. Indeed, Justice Kennedy described the injunction as "statewide" (hard to know if he was happy or unhappy with that).
Even if the injunction is erroneously overbroad, it is not clear what could be done about that. An overbroad injunction could be the basis for an FRCP 60(b)(6) Motion to Modify, as"any other reason" justifying relief from the injunction. But who could or would make that motion? The logic of Hollingsworth is that the initiative proponents lost all standing once the district court entered judgment (a judgment which does not bind or compel the proponents to do or not do anything). And it is unlikely the named defendants would do so (since they wanted to lose the case and be subject to the injunction in the first place).
The difference affects how the next couples would proceed. If the injunction does not apply statewide or to all couples, the next couple denied a license would have to file a new federal lawsuit. In LA or Alameda, they probably could use the Perry injunction for preclusive effect; in other counties, Any couple could use the injunction as persuasive authority [ed: corrected]. On the other hand, if the injunction applies statewide, any couple denied a license enjoys the benefit of the existing injunction; they could go straight to Judge Walker (or whichever other judge is supervising the injunction, since Judge Walker retired) and obtain the license through a Motion to Enforce and a threat of sanctions against the state or county officials who refused to grant the license.
AG Harris potentially mooted that issue, concluding in an opinion letter to the governor (dated June 3 and written in anticipation of this ruling) that the injunction does apply statewide. Because the plaintiffs brought a facial challenge to Prop 8, its invalidation means there is no possible constitutional application of the law for the named defendants as to any applicants (although this reasoning does not seem quite right to me). Further, she concludes that all county registrars and clerks are under the control and supervision of the Director and Deputy Director of the Department of Public Health (both named defendants) and therefore qualifiy as "other persons in active concert or participation" with parties who are bound by the injunction under FRCP 65(d)(2)(C). She insists that all clerks be given notice of the injunction and of her conclusion that they are subject to it, which a DPH official did today (although telling clerks to wait until the Ninth Circuit lifts the stay). In other words, high-ranking state officials insist that, as soon as the Ninth Circuit lifts the stay, California is back where it was in the four months in 2008 prior to the passage of Prop 8, when same-sex marriage was legal throughout California.
But what happens if a county clerk who was not a named defendant continues to believe that Prop 8 is constitutionally valid (e.g., the Clerk in Imperial County, who tried unsuccessfully to intervene in the district court) and disagrees with Harris' determination that he is subject to the injunction? One possibility is that this unknown clerk, being bound by the injunction, could now make that FRCP 60 motion to modify the overbroad injunction. Another is he could refuse to grant a license to a couple, then oppose the subsequent motion to enforce by challenging the scope of the injunction (as to him and as to the new license applicants) and whether he is subject to control or supervision of DPH. Of course, because the scope of DPH's control or supervision is a state law issue, the district court may have to certify that question to the California Supreme Court. Another possibility is that DPH has the power to remove a recalcitrant county clerk or to directly intervene to override the actions of a county clerk who fails to follow commands (akin to the power some state attorneys general have to supersede the actions of county-level prosecutors); whether DPH has such power is also a question of California law.
All of which is to say that SCOTUS's decision leaves in place a broad Fourteenth Amendment ruling on the constitutionality of Prop 8. But it also leaves all sorts of procedural issues, federal and state, for the lower courts to work out.
Update: Marty Lederman gives his views of what happens next, closing on several additional practical points worth highlighting. First, if a couple did have to litigate anew, they'd almost certainly win, having not only the Walker injunction as authority, but also the language in Windsor. Second, Marty doubted any clerk would bother refusing to issue licenses, because it simply will not be worth the bother or effort and ultimately will fail. Third, as a result, once the Minnesota law takes effect on August 1 and once the stay is lifted, same-sex marriage will be legal in 13 states and D.C.
What is Scalia talking about?
Justice Scalia spends the last part of his standing discussion in Windsor criticizing Justice Alito's separate dissent arguing that BLAG (although not the United States) had standing to appeal to the Second Circuit and to SCOTUS. Scalia argues that this opens the door to Congress suing the executive in federal court for declining to enforce federal law (or for enforcing it inadequately). Alito certainly does not say this or even imply it (at least on my reading of that part of his opinion, which I've now done five times). Does it necessarily follow from allowing Congress to defend a law when the President declines to do so? Scalia's vision is appealing: only the executive enforces and defends federal law and if he fails to do so, the law goes unenforced/undefended and Congress is left to non-litigation means (impeachment, cutting off funds, etc.) to persuade/cajole the President to act.
True, there administrative problems that could result if Congress can trump executive litigation/enforcement decisions with which it disagrees. But it seems to me that Alito's theory of standing is, at the federal level, precisely what the majority in Hollingsworth (written by Roberts, joined by Scalia) demands when the state executive declines to enforce or defend: BLAG is part of an elected body, part of the government, and subject to the popular and electoral check of The People. That same theory should work the same way at the federal level.
Sex, morality, and relationships
Cynthia highlights Justice Kennedy's emphasis on DOMA's effect on children, particularly a sentence emphasizing how DOMA "humiliates" children of same-sex couples. But look at the immediately preceding sentence on p. 23: "The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify."
So the Constitution protects moral and sexual choices, but the State protects the relationship. Even though the relationship logically arises from those constitutionally protected moral and sexual choices. Is it logically possible to not take the next step to conclude that the Constitution also protects the relationship?
3/256The following is by my FIU colleague Alex Pearl, an Indian Law scholar and an enrolled member of the Chickasaw Nation of Oklahoma.
There are a lot of very good assessments of the Adoptive Couple v. Baby Girl decision, and I will not attempt to add to that thoughtful analysis of the holding. Instead, I’d like to focus on a different aspect of the Court’s opinion, which is its misplaced and worrisome obsession with whether Veronica is Indian enough. While not the stated basis for the Court’s decision, the repeated references to Veronica’s percentage of Cherokee ancestry display a misunderstanding of tribal citizenship laws and (ironically, given the Court’s color-blind bent) reinforce an inchoate racialization of Native people. The Court’s message seems to be: if children like Veronica lack sufficient “Indian blood,” they do not warrant the legal protections that their political status as American Indian tribal members otherwise affords.
What’s in a number? More than you would think. Justice Alito began his majority opinion with this statement: “[t]his case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Thankfully, the Court references Baby Veronica’s blood quantum by BOTH fraction and percentile for those math challenged readers. This has the effect of attempting to reiterate that Baby Veronica really isn’t that much of an Indian, so this isn’t really that big of a deal. Under Cherokee membership requirements, Veronica’s so-called blood quantum is irrelevant, however. The only thing that matters is whether she descends from an ancestor on the Cherokee Nation’s Dawes Roles. Justice Alito later acknowledges this, referencing Baby Veronica’s “remote ancestor” which, again, attempts to delegitimize her Indian-ness.
However, Baby Veronica’s actual quantum of blood is simply irrelevant, which Justice Sotomayor points out in her vigorous dissent. (slip op. at 23-24). The plain fact, which the Majority gets wrong, is that Baby Veronica is a Cherokee Indian—no matter the extent to which this fact challenges their own personal notions of who an Indian is and what an Indian looks like. She is a citizen of the Cherokee Nation. Her citizenship in the Cherokee Nation is not up for debate, diminution, or question. Indeed, this is one of the many purposes of the Indian Child Welfare Act, to prevent non-Indians from making these types of judgments about who is/isn’t/might be/looks like an Indian.The Majority’s statement about the “low” percentage of blood attempts to make more palatable the idea of this Cherokee girl facing a likely increased difficulty in connecting with her tribal culture and tribal family. I say “likely” because my sincere hope is that wherever Baby Veronica is, she be given the opportunity to connect with her Cherokee community and engage with Cherokee culture. But, this is difficult because engaging with one’s tribal community culture, I’ll generalize briefly here, entails interaction with family. The presumptive adoptive parents may not be inclined to encourage Baby Veronica’s connection to her biological father’s family. This, I might add, was a fundamental purpose of the Indian Child Welfare Act—to protect tribal culture. This is perhaps another benefit of the Majority’s use of “3/256,” to try and differentiate the statute’s purpose—protecting Indian children and tribal culture—from the facts of the current case, i.e. Baby Veronica isn’t really an Indian.
Baby Veronica is, or is eligible for, enrollment as a citizen of the Cherokee Nation of Oklahoma. By the way, the Cherokee Nation isn’t like your local public library—not just anyone can join. It’s like the United States. Not everyone can join us here—the U.S. has citizenship requirements. It would be unintelligible to say that someone is 3/256 American, right? You either are or are not a citizen of a nation. The usage of blood quantum in this way by the Majority conflates Indian identity and tribal citizenship. Scholars of all types (legal, humanities, and social sciences) continue to grapple with these concepts and recognize the entanglement of the racial and political. An example might help.
Some individuals may have a parent enrolled as a tribal citizen but the Tribe’s citizenship criteria may be such that the child is not eligible for citizenship. Nonetheless, the non-citizen child lives in the tribal community, participates in cultural activity, and is by all accounts a member of the tribal community. The child identifies as an Indian, but is not a tribal citizen. This is not that radical of an idea. There are thousands of people in this country that recognize their underlying national heritage (speak the language, celebrate the national holidays, etc) but are not eligible for citizenship in that country. I fully concede that this is an easy error to make. Furthermore, Indian identity politics, tribal enrollment (and disenrollment) issues, and indigenous citizenship are extraordinarily complex and extremely sensitive. Professor Sarah Krakoff has an excellent article out that gives these concepts far better treatment than I have done here. These complexities, however, provide all the more reason for the Court to avoid becoming (needlessly) embroiled in them while perpetuating misconceptions about Indians.I make these observations to point out that there remains a fundamental and likely widespread misunderstanding, or innocent ignorance, of Indian-ness.
As I said above, there are racial and political components to current conceptions of Indian tribes and tribal member. This problem will continue to impair tribal performance in the courts on issues like this in the future. Until people stop conjuring up images of Johnny Depp as Tonto (opens July 3rd!) or the Washington Redskins when they hear the word “Indian,” this isn’t going to change. I promise--this is not an anti-Indian mascot post. But I do believe that the recent attention given to the Washington Redskins logo and trademark illustrates the larger problem regarding misconceptions about Indian identity and tribal communities. The issues with the imagery of Tonto, the Redskins, and the Majority’s emphasis of Baby Veronica’s blood quantum are all manifestations of these misconceptions and continue to harm Native people.
I’ll end on this brief personal note. I’m an enrolled member of the Chickasaw Nation of Oklahoma, and grew up in Oklahoma. I have two young children and my hope is that they encounter the statement, “you don’t look Indian,” less than I did. That statement questions a person’s Indian-ness in the exact same way the Majority utilizes Baby Veronica’s blood quantum to delegitimize her status as an Indian. If they hear that less, it means we are moving in the right direction. The continuing misconceptions about Indian-ness are not going to go away anytime soon. But, I think that open discussions about the issues are essential to reform—even if we don’t have the right answers yet. Such a process yields benefits to everyone, Indians and non-Indians alike.
Initial Hollingsworth question
Many people are going to be talking about the line-up in Hollingsworth: The Chief was joined by Scalia, Ginsburg, Breyer, and Kagan in saying no standing. Justice Kennedy, joined by Thomas, Alito, and Sotomayor, argued the proponents had standing, although without subsequently discussing the merits, which seems highly unusual. (Does anyone know how often that happens, that in a case dismissed on jurisdictional grounds, the dissent will insist there is jurisdiction, but then not reach the merits?)
Update: Some readers suggested past standing cases to look at and it appears that it is common practice for the dissenters not to reach the merits, even if they would have found standing. One exception is Justice Stevens' dissent in Raines v. Byrd, although he announced his view of the merits in one sentence that largely tied the merits to standing. In a separate dissent in that case, Justice Breyer espressly declined to discuss the merits because the majority had not discussed the merits and he chose to "reserve" his views for future argument. I still believe there is a nice normative question of whether that is how dissenters should approach cases, but I will reserve that for future days.
So what happened internally? Assuming that Ginsburg, Breyer, Sotomayor, and Kagan all would find marriage equality required by the Fourteenth Amendment and since Kennedy agreed there was standing, why wouldn't those five join to invalidate Prop 8 on the merits? Was Kennedy not willing or ready to go along? Could they not agree on a rationale? Am I falling into the trap of making every justice results-oriented and not giving Ginsburg, Breyer, and Kagan credit for genuinely being troubled by the Article III concerns?
DOMA violates Fifth AmendmentWindsor (Kennedy for 5; Roberts, Scalia, Thomas, Alito dissent). Waiting on Hollingsworth, although language from the Roberts dissent in Windsor indicates that case dismissed on standing grounds.
Update: Yep--Petitioners in Hollingsworth lacked standing to appeal the district court decision. Roberts for five; Kennedy dissents, joined by Thomas, Alito, and Sotomayor.
Monday, June 24, 2013
The procedure of Title VII
Given my limited knowledge of the details of Title VII, I will not delve too deep into the details of either Vance v. Ball State University (only those with hiring/firing authority qualify as supervisors) or Univ. of Texas Southwestern Med. Ctr. v. Nassar (but-for cause required for retaliation claims). Instead, I wanted to note the role that procedure plays in both decisions.
Justice Alito's majority opinion in Vance insists that the Court's (seemingly) simpler definition of superviso will be more readily applied to resolve disputes prior to trial--primarily on summary judgment, although it hard not to see this trickling back into Twiqbal-tinged 12(b)(6) decisions. Similarly, Justice Kennedy in Nassar insists that a lesser causation standard makes it "far more difficult" to "dismiss dubious claims at the summary judgment stage" (emphasis addd--is it any wonder our students confuse those terms?). It is not sufficient that the employer could "escape judgment after trial."
The logic here calls to mind Harlow v. Fitzgerald, in which the Court adopted a purely objective standard for qualified immunity in § 1983/Bivens actions precisely because it would allow more claims to be resolved at summary judgment. But qualified immunity is an affirmative defense vesting in defendant officers a right not to litigate, purely for instrumental reasons--freeing them to focus on serving the public interest without having to deal with the distraction or chilling effect on governmental conduct. One can disagree with that doctrinal logic. But even accepting that, this is vastly different than saying that every defendant has a right to avoid liability prior to trial and that the substantive claim-creating legal rules (as opposed to an affirmative defense) should be interpreted in such a way explicitly to preserve that right. It no longer is enough that the "correct" party prevail--they now must prevail at the right point in litigation.
The other thing flowing through both opinions is concern for juror confusion and the need to make cases easier to grasp and decide. In particular, Alito emphasizes the need for "reasonably clear jury instructions in employment discrimination cases." Of course, the need to make jury instructions more comprehensible does not mean the need to simplify (if not "dumb-down") the substantve law itself. Jurors are capable of understanding and applying difficult legal concepts; the call from scholars has been to present and explain those concepts to the jury in a clearer way.
Alito also insists that "the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof." But on that logic, we should never have jurors deal with affirmative defenses or counterclaims, which necessarily involve different parties carry different burdens of proof. In any event Nassar itself presents the very problem by imposing different causation standards for substantive claims and retaliation claims; as Justice Ginsburg argues in dissent, those types of claims often (as in Nassar itself) are regularly brought together. In other words, contrary to what Vance suggests should happen, Nassar means jurors will have to deal with different theories of causation fairly regularly (unless, of course, the new but-for standard succeeds in keeping retaliation cases from ever reaching trial).
Thursday, June 20, 2013
Judicial rhetoric in AID
SCOTUS today decided Agency for Int'l Development v. Alliance for Open Society In'tl, holding 6-2 (per the Chief; Scalia dissenting, joined by Thomas; Kagan recused) that requiring a recipient of federal HIV/AIDS funds to adopt a policy opposing prostitution violates the First Amendment. I don't have a lot to say about the opinion, other than it is interesting to see Rust v. Sullivan once again discussed as a funding case and not a government-speech case (which it had sort of morphed into). Instead, I just want to draw attention to the language and rhetoric flying around both the majority and dissenting opinions.
Justice Jackson and the 70-year-old Barnette get some love from the Chief. After saying that the program "requires [recipients] to pledge allegiance to the Government's policy," Roberts insists that "we cannot improve upon what Justice Jackson wrote for the Court 70 years ago," going into Jackson's "fixed star in our constitutional constellation" quotation.
The Chief also throws in his usual turns of phrase--"an offer that cannot be refused", funding activities "on its own time and dime", as well as the "pledge allegiance" line above. These are becoming quite common in Roberts opinions, especially his First Amendment cases. I still cannot decide if they are distracting or make for good judicial writing.Of course, Roberts cannot hold a candle to Justice Scalia in this respect, especially when Scalia is in dissent and is not trying to guide lower courts or hold a coalition together and can go with guns blazing. Thus, the majority "pussyfoots" around the issue of coercion (or lack thereof) in the funding program and it makes a "head-fake" at unconstitutional conditions. The idea behind the limitation--government enlisting the aid of those who support its ideas--is a "matter of the most common common sense." And the "elephant in the room" is that Government does not really force anyone to do anything by denying funding. (On that last one, I appreciate that Scalia did not mix his metaphors by either making the elephant pink or having it weigh 800 pounds).
Scalia is especially hot in creating hypotheticals. He uses Hamas as an example of an organization that is quite good at distributing public welfare, but reasonably could be excluded from a food-distribution program (even if Hamas were a U.S. organization). Or he insists that a "federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it." Or note the examples he uses to show that government funding of a particular viewpoint obviously discriminates against those who disagree--"Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure free-love advocates." That last one was striking--the opposite of sexual abstinence is free love and not those who recognize sex as a part of any monogamous relationship? And does anyone even use the term "free love" anymore?
Also, recall that last week in Myriad Genetics, Justice Scalia refused to join the portions of the opinion discussing details of genetics and molecular biology, some of which seemed fairly anodyne. There has been some discussion about Scalia's apparent uncertainty about the science. Well, his AID dissent shows he has no such hesitation (humility?) about economics ("Money is fungible. The economic reality is . . . they can expend greater resrouces on [other] policies. . . . [T]his is a real and obvious risk.") or communicable diseases ("prostitution, by which HIV is transmitted").
Finally, a more substantive point. I quote Scalia's closing flourish because it does say something about his views of government programs and unconstitutional conditions:
Americans need not support the Constitution; they may be Communists or anarchists. But “[t]he Senators and Representatives . . . , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support [the] Constitution.” U. S. Const., Art. VI, cl. 3. The Framers saw the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work. And so should we.
In other words, all who work on the government's behalf or support are just like government officials and can be subject to the same limitations as those who are, by virtue of their elected or appointed position, actually wielding government power. Is that right? And should it be? And, if taken literally, what does it mean for other sreas of the law? For example, should a recipient of federal funds now be treated as a state actor for 14th Amendment/§ 1983/Bivens purposes?
Wednesday, June 19, 2013
Can We Justify How Criminal Justice Authority is Allocated Across Jurisdictions?
Blogging, young kids, and flu season: apparently only two of the three can co-exist at one time, at least in my house. Anyway, in my last post, I asserted that the decentralized nature of our criminal justice system has played a major role in driving up prison populations. In this post, before looking at the problems with decentralization, I wanted to think about whether we can justify such a system, and ask whether the problematic decentralization seen in criminal law is prevalent elsewhere as well.
As an economist, the strongest justification I can see for federalism1 relates to externalities. At least as a starting point, issues should be dealt with by the smallest jurisdiction that completely contains the problem. Obviously, there are clear counterarguments—economies of scale, coordination problems, etc., etc.—against having too many levels of government. But since here I’m basically looking at city, county, and state governments, it seems like a reasonable place to start.
The division of labor we see is basically this: local communities such as cities are responsible for enforcement, counties are in charge of bringing cases and incarcerating misdemeanants, and the state is responsible for incarcerating felons and, via the state criminal code, defining the basic substantive and punitive rules.
Yet what is striking is how remarkably local and concentrated crime is.Nearly half of all crime in the United States takes place in just 75 counties (see the codebook here)—or just over 2% of the 3,143 counties in the country. Within these counties, crime is concentrated in the urban areas. And within these urban areas, crime is heavily concentrated at the block-by-block level. One study of Seattle, for example, revealed that over a fourteen year period, over 50% of all crime took place in just 4% to 5% of city blocks each year, and 100% of crime each year took place in just about half of all city blocks; over 22% of all city blocks never experienced a crime during the whole sample period. Similar results have been found in other cities as well.
Yet even the idea of “good” and “bad” neighborhoods understates the concentration of crime. As David Weisburd explains elsewhere:
In what are generally seen as good parts of town there are often streets with strong crime concentrations, and in what are often defined as bad neighborhoods, many places are relatively free of crime.
In fact, so concentrated is crime that Lawrence Sherman has argued that we should think more about “wheredunit” than “whodunit”: tell me that a mugging happened, and I am better able to guess where it happened than who did it.
Furthermore, not only is crime quite local, it seems to be fairly immobile: evidence suggests that for most crimes displacement is not a major concern. Weisburd and others have shown that even within a high-crime neighborhood, concentrated enforcement at a particular crime hot-spot does not appear to displace crime to other, nearby blocks. The hotspot is a hotspot for a reason: there is something about that block—its architecture, its lack of light, etc., etc.—that makes if favorable for, or even encourages, criminal conduct.
Of course, some crimes are more displaceable than others. The low-level drug dealer may not move a few neighborhoods over to sell more drugs, but cartels will reroute their distribution networks through entire new countries if need be. (This perhaps suggests why we see many regional drug enforcement task forces.) And the fact that a majority of violent crime victims know their attackers suggest that much violent crime is localized, while something like terrorism is perhaps much more likely to respond to changing enforcement patterns.2
But, in general, crime is a fairly local, stable (if destabilizing) problem.
Given this, it is hard to immediately justify the way in which we have allocated responsibility for criminal justice issues. Why should county officials decide which offenses deserve prosecutorial attention? Why should state officials decide what crimes deserve longer punishments—and should we even want such one-size-fits-all sanctions? Should crimes in Utica face the same sanctions as those in New York City? (Or is this a defense of plea bargaining, which allows local officials to craft local sanctions from state-level starting points?)
Even California, the one state to seriously rethink this allocation of powers via its Realignment program, does not seem to address these questions well. Realignment will require counties to incarcerate “triple-nons”—non-violent, non-serious, non-sex-offense-registered offenders—in county jails, even for long terms. But what exactly is the relationship between severity and externalities? I can see traces of complicated arguments that could provide some support, but nothing like a slam-dunk.3
There may be some normative arguments for our current system, but these do not feel all that appealing either. Maybe we think it would be offensive if Utica set a much lower punishment for, say, domestic abuse than New York City. But we let the various states set different punishments for such crime, so what is the difference between Utica/NYC and New York/New Jersey?
And it is hard to see a real efficiency argument, either. Perhaps criminal codes are expensive and difficult to write. But then why not have the state write the code and allow local communities to adopt and amend as they see fit, at least for those offenses that seem least displaceable?
But this is an issue that I have not given as much thought to as others, so I would love to hear about justifications that I’m missing. And I’m curious: how big a problem is misdesigned federalism (again, at the local-state level) in other areas of law? Is this a big concern in, say, environmental law (where the externalities seem more obvious and pervasive to me) or labor law? I’d love to hear from people who study other areas of law about whether similar concerns arise there, or if criminal law has a uniquely poorly allocated division of responsibility.
1I’ll use “federalism” here because it is easy. Given the central role of states in criminal justice policy, “statism” is probably more accurate, but more confusing as well. So the “federal” divides I’m looking at here are city/county and county/state far more than state/federal.
2For a cynical take on this, see Robert Wright’s 2002 column about the need for the US to keep its allies close in the wake of the September 11, 2001 attacks: the less our allies are associated with us, the more likely terrorist retaliations will be concentrated on US targets. His title says it all: “Friends as Flak Jackets.”
3And there could be a serious problem here. As David Ball’s work has shown, Californian counties differ greatly in their innate “punitiveness” towards all offenders, violent and otherwise. And as I’ve shown here, the incarceration of violent offenders has been the majority cause of prison growth. So Realignment appears to fail to realign costs and benefits for the very offender class most responsible for rising incarceration rates.
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.
Tuesday, June 18, 2013
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:
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.
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.
Monday, June 17, 2013
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.)
- 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.
- Justice Thomas's reiterated suggestion that Griffin v. California should be overruled reminds me of why I like Justice Thomas so much.
- 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.
- 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.)
- 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.
Thursday, June 13, 2013
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.
Wednesday, June 12, 2013
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?
Monday, June 10, 2013
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.
Monday, June 03, 2013
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
Tuesday, May 28, 2013
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?
Thursday, May 23, 2013
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.
Wednesday, May 15, 2013
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
Posted by Ivan Cohen on May 15, 2013 at 02:57 PM in Article Spotlight, Civil Procedure, Law and Politics, Legal Theory, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (2) | TrackBack
Monday, May 06, 2013
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?
Thursday, April 18, 2013
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.
Monday, April 15, 2013
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.
Monday, April 01, 2013
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.
Tuesday, March 26, 2013
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."
Sunday, March 24, 2013
Anderson Cooper has standing
For those of you who missed 6o Minutes tonight:
Monday, March 18, 2013
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 this2) 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.
Wednesday, March 06, 2013
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.
Tuesday, February 19, 2013
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.
Monday, February 04, 2013
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 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 summary of the argument is after the jump.
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.
Sunday, February 03, 2013
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).
Wednesday, January 30, 2013
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."
Tuesday, January 29, 2013
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.
But you, PrawfsBlawg reader, knew all that, because you read what I had to say three weeks ago.
Sunday, January 20, 2013
Think they can get it right this time?
No matter what day they're administering the oath.
Wednesday, January 16, 2013
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?
Monday, January 14, 2013
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.
Monday, January 07, 2013
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.
Wednesday, January 02, 2013
The Citizens United Link to the Affordable Care Act LitigationIt’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?
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?
Tuesday, January 01, 2013
Emancipation ProclamationToday 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).
Thursday, December 27, 2012
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.
Saturday, December 22, 2012
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.
Tuesday, December 18, 2012
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).
Friday, December 14, 2012
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.