PrawfsBlawg

Jurisdiction Week at SCOTUS

Perhaps still traumatized by deciding cases that the media is covering (poorly or otherwise) and the whole nation cares about, the Supreme Court opens its new term on Monday with three cases that only procedure profs could love: federal subject matter jurisdiction, including two involving merits/jurisdiction overlap.

• Lozman v. City of Riviera Beach raises the issue of whether a houseboat is a vessel (Mike Dorf has some fun with this in a Hart-and-Fuller, or Scalia-and-Posner, way), both for the merits of a foreclosure claim on a maritime lien and for federal admiralty jurisdiction. The Court may have to deal with some sub-issues, such as how to define "Any civil case of admiralty or maritime jurisdiction" in the jurisdictional grant; whether a merits fact, such as whether something is a "vessel," also goes to jurisdiction; and, if so, the standard of proof for that fact in the jurisdictional context. Kevin Clermont and Dorf  filed an amicus on the subject, arguing that the fact for jurisdictional purposes should be subject to a prima facie standard, as opposed to a preponderance standard for the merits. I will have more to say on this after the argument.

• Kiobel v. Royal Dutch Petroleum, held over from last term for reargument, raises the issue of whether a claim can be brought under the Alien Tort Statute against a corporation for extra-territorial conduct. As a preliminary matter, the Court also must consider whether the availability of corporate civil liability is an issue of merits or jurisdiction. I will have more to say on this, as well; I would argue that whether the corporate defendant can be liable is a purely merits question and has nothing to do with the court's jurisdiction.

• Kloeckner v. Solis considers where a federal employee must challenge a decision by the Merit Systems Protection Board in a "mixed case" (one raising discrimination and termination issues) in which the Board did not resolve the merits of the discrimination issue--the Federal Circuit (which ordinarily reviews MSPB decisions) or a federal district court (which ordinarily hears discrimination claims). I wrote the case preview for SCOTUSBlog, so I will be coming back to this case over the course of the term.

As NASCAR goes, so goes America?

Two years ago, I wrote about a poll showing the general politcal breakdown of sports fans. It found that sports fans overall leaned Republican, with NASCAR fans among the strongest Republican supporters (along with fans of golf and college football). Zogby just published a poll showing Obama with a lead among self-identified NASCAR fans (admittedly small sample size of only about 200 out of an overall sample of 800).

The Simpsons "love" Mitt Romney

Take a quick look at this obviously fantastic election-related clip from "The Simpsons": 

http://www.youtube.com/watch?v=ArC7XarwnWI

Romney's horse may have totally "choked in the Olympics," but at least Homer gets outsourced to China with "a steady job." Too bad "Stupid" Flanders is there next to him. Romney "has a house in your state" and the "government paid him taxes the last five years." But, it's ok. After all, Romney "did invent Obamacare." 

Homer didn't have an ID when he arrived to vote, so the Rich Texan (a Republican stooge in most episodes) wanted to stop him from voting, that is, until he learned that Homer was white, middle aged, relatively uneducated, and gets his news from TV screens at gas stations. The Rich Texan, though, gives us the best line: "Stopping all Americans from voting is for the protection of all Americans."

Governor Romney may think 47% of us are "takers" and dependent on the government and not worth caring about, but although all that is great fodder for politics and the media, the real tragedies of this election are those brazen attempts to suppress voter turnout in traditionally Democratic locations and among traditional Democratic constituencies. In Ohio, the Republican state leadership tried to end early voting in just the Democratic counties; in Indiana, the state is taking away voting locations in urban areas and adding them in rural ones. On the other hand, states like New York and California are allowing people to register to vote online and making it easier for people to find their voting centers and get to them.

Homer was lucky. Too many voters may not be.

The One Year Anniversary of the End of "Don't Ask, Don't Tell"

Yesterday, I had the opportunity to attend the Servicemembers' Legal Defense Network's (SLDN) party on the Intrepid to celebrate the first anniversary of the repeal of "Don't Ask, Don't Tell" (DADT). Many of the usual suspects were there: Admiral Mike Mullen, the retired Chair of the Joint Chiefs of Staff who championed open service; Major Margaret Witt and Colonel Victor Fehrenbach, the officers who successfully challenged DADT in federal court; Eric Alva, the first American injured in the latest war in Iraq; Captain Stephen Snyder-Hill, the openly gay soldier who was booed at a Republican debate months ago and has since gotten married; Joseph Rocha, the repeal activist and young sailor who suffered abuse at the hands of his commander and colleagues in his elite explosive detection unit; City Council Speaker Christine Quinn;MSNBC anchor Thomas Roberts

Admiral Mullen spoke at the VIP reception, reminding us that gay service members are just as honorable and brave as their heterosexual peers, and was honored during the official program. The former congressman and veteran Patrick Murphy, the author of the Repeal Act in the House, worked the room and expressed genuine humility and satisfaction that he had the honor to play a role in ending such odious discrimination.

I spent the evening with some friends, catching up with colleagues at my old law firm (I am proud that Winston & StrawnLLP was a supporting sponsor of the event), and asking random people the following question: How does the repeal ofDADT impact progress on other gay rights issues like the marriage, employment discrimination, and DOMA? My sample was too small and too biased to constitute a reliable study (many people declined to respond, the attendees were overwhelmingly white and male), but it gives us an indication of the personal and political meaning of the end of DADT'swork.

A member of the Marines said the end of DADT "meant the world to" him. His friend, a civilian who admitted he "never even considered spending one second in the military," nevertheless felt "proud" that his friend could finally be "an equal member of the Marines." A sailor in uniform said, "The end of DADT is the beginning of the end for everything else. If we can fight and die for our country, it's hard to justify discriminating against us." Another young man in our little circle disagreed, arguing that "there's a lot more to do, even in the military. We shouldn't get complacent." The two men started a civil discussion about it as I walked away.

Three women in uniform agreed that repeal was "the greatest moment of [their] lives." When I asked about discrimination faced by women, they demurred. But a veteran standing nearby followed up: "Sure, there's discrimination. There probably always be. But, you don't understand. DADT wasn't just any old discrimination. It forced you to lie about who you are. It compromised your honor and made you sick to your stomach. It told you that who you are is somehow wrong. How would you feel if someone told you that every hour of every day?" A well-dressed young man came over and said, "And, that's how gays feel in most of this country anyway. We can't marry, we can be fired for who we are."

Many civilian commentators repeated this theme and others expressed feelings of satisfaction; phrases like "the sky didn't fall" came up more than a few times. Most military commentators were simply happy. You could sense that a collective weight had been lifted from the room, that, for the first time, freedom is at hand and more is on the horizon. Men in uniform abounded, no longer worried about being identified as gay. Still, there was a hint of uncertainty: many refused to give their names, others shied away from the bright yellow name tag the indicated PRESS.

So, what, if anything, does this tell us? First, many people declined to answer the question, focusing instead on their happiness at the end of DADT and desire to celebrate a great victory. I can't blame them. Second, the end of DADT is not the end of the story. Some service members may be worried about harassment and more subtle discrimination, or they may not be the kind of men and women who want to be in the spotlight. I can understand that. 

But, we cannot deny that the end of sexual orientation discrimination in the military can be persuasive in the fights to end other antigay discrimination. As one VIP attendee noted, it is hard to justify discrimination against people who are fighting and dying for their country with honor. The argument goes further: The conclusions Judge Phillips made in Log Cabin Republicans v. United States, the federal challenge to DADT that declared the entire law unconstitutional, and the statements from congressmen and senators are indicators of official judicial and legislative opinions on the merit of any kind of discrimination against gays. That is, we now have court records and legislative history to prove that discrimination on the basis of sexual orientation is pointless, ridiculous, and disgusting. The end of DADT will advance the cause of marriage recognition: openly gay service members will want to enjoy the right to marry, in uniform and on base; it will force us to confront the denial of federal benefits to the legally married spouses of gay service members; it will be incontrovertible proof that treating gays equally is not only not harmful but also part of our constitutional tradition.

Why are religious questions out of bounds?

Hello Prawfsblawg participants!  It's great to be back -- during my last stint as a prof, a VAP at BU a few years back, I was an occasional contributor to this fine site.  And now, as I'm going on the AALS job market for real this fall, it's a pleasure to be back in the PB saddle, as it were.  

My two main areas of interest are law & religion, and law & sexuality -- or, best, a combination of the two.  I've just finished my Ph.D. in religious studies at Hebrew University, and in my non-prawf time, have been an activist for LGBT people in religious communities.  To avoid the taint of self-promotion, I'll omit the title of my book here...

I thought I'd start my new Prawfs career with a question that some people find obvious, but which I find to be a conundrum: why, in elections, are religious questions out of bounds?

As a scholar of religion, I'm used to inquiring into why people hold religious beliefs -- even ones which strike non-believers as absurd -- and of course as a legal academic, I'm accustomed to the social-constitutional norm of separating religious and political questions.  But, particularly on the religious studies side, there's no clear reason why judgment calls when it comes to religion are somehow insulated from judgment calls in every other area of life.

Consider an extreme example.  If a presidential candidate were a member of a UFO cult, and believed that aliens were going to scoop up all believers in 2013, we might reasonably ask whether such beliefs are incompatible with the long-term vision and planning required of a president -- right?  

Obviously, my question here is really about Mormonism, a newish religion which has some tenets most Americans will find very strange.  Why is it unfair, as a matter of evaluating Mitt Romney's judgment, to ask whether he believes that God is a corporeal human being?  Or whether Romney expects to be physically reincarnated on his own planet?  Or whether he believed, prior to 1978, that African-Americans were cursed to be dark-skinned (2 Nephi 5:21), or that dead people could be posthumously baptized?  Or how about the cardinal principle of the faith, namely that Joseph Smith discovered golden plates engraved in a foreign language on September 22, 1823, in Manchester, NY -- plates he later returned to an angel?

It's considered doubly verboten to criticize any of these tenets of the faith: first, because Mormonism was, for almost a century, the object of bitter persecution, and second, because questioning someone's religious beliefs is supposed to be off-limits in American political discourse.  After all, no one would question a candidate's belief that an omnipresent and incorporeal deity impregnated a 1st-century Palestinian woman, or parted the Red Sea.  And the only thing that distinguishes these preposterous beliefs from Mormon ones would seem to be that the former are older and more widespread.

But there are some distinctions.

First, Romney is not just a rank-and-file Mormon.  He was a bishop -- not as big a deal as it sounds, since Mormon bishops are locally-appointed and limited in power, but still a big deal.  This is someone who has really bought into these beliefs.  Doesn't it matter if the beliefs are, well, absurd?

Second, these beliefs may strike millions of people as deeply troubling, and Romney has not been forthright about them.  To take but one example, Christians don't believe that God is a corporeal being who has had sexwith women.  For Romney, like other Mormons, to glide over the differences between Mormonism and Christianity is dishonest.

Third, religious beliefs, like other beliefs, tell us about the character of the believer and what we may reasonably expect her/him to do.  By way of parallel, I think it mattered a lot that George W. Bush was a Biblical literalist and born-again Christian, and I think it was irresponsible that mainstream media never made much of this.  I think we can trace many of his demonstrably harmful policy decisions to his religious beliefs: the war in Iraq, his destiny as a world leader, the clash of civilizations, and so on.  It's not as if all our "secular" decisionmaking takes place in one part of the brain, and religious decisionmaking takes place in the other.  Religious beliefs are as germane to being president as ideological ones.

Now, it may not be a negative for Romney that he believes some of this stuff.  America is a heavily religious country, and Romney's faith may be an asset.   It's also unclear what the effect of a more honest discourse about religion and politicians would have on Romney's opponent, a longtime Christian who many Americans still believe is a Muslim. Surely Obama would be loathe for anyone to remember his former pastor, Jeremiah Wright, or for anyone to question the secondary role religion has played in his life.  No doubt the Obama people are happy to let sleeping dogs lie when it comes to religion.

But I'm not interested in the partisan net gain here.  I think it's crazy that our country is considering electing someone who holds beliefs that I find to be so completely untenable -- and I say this not just as a religion scholar but as a somewhat practicing (if not exactly believing) Jew who has written two books on Jewish spirituality.  I'm perfectly willing for my religious beliefs to be scrutinized, and I think the way in which I hold them is absolutely relevant to my overall personality.  If I were willing to believe what Mitt Romney is apparently willing to believe, I wouldn't trust myself.

Thoughts?  Disagreements?  I'm working on a larger article on these subjects, so I'm especially eager to hear what you have to say.

Has Aaron Sorkin always been unwatchable?

I have always been an Aaron Sorkin fan. Like every law professor, I can recite A Few Good Men from memory; like every Democrat of a certain age, I loved The West Wing; and like not many people (since no one watched the show), I enjoyed Sports Night.

But we stopped watching The Newsroom after about three episodes. And it was not about his political leanings, which I largely share. And I like the idea of a press that actually does ask the tough questions in a sort of prosecutorial manner.

The problem is the stories and characters. The women were all written as totally incompetent personally or professionally or, usually, both (Sorkin has taken a lot of criticism for this). Just about every character seems thoroughly unlikeable as a human being, particularly the men who draw out the incompetence of the women. And the Sorkinesque speechifying, meant to be soaring, often comes across as bullying or humiliating. Sorkin paints a world in which it would be great if we all had the ability to call  someone out and cut them to the quick in an articulate way; but often, that just looks obnoxious. Plus, his characters are basically the same; you can link a character on The Newsroom to one on WW to one on SN.

The thing is, I'm not sure it is only this show. I recently went back to Season 1 of Sports Night and found it just as unwatchable for many of the same reasons. The characters were slightly better and more enjoyable, but the blatant sexism and retrograde sexual politics remained, as did the speechifying that just came across as obnoxious or unbelievable.

Am I wrong? Am I being too harsh? Trust me, I can handle the truth.

More free speech and ideology

Apropos of this brief conversation and stuff I've written here before, comes this paper by political scientists Lee Epstine, Christopher Parker, and Jeffrey Segal that finds a correlation between the nature of the speaker and speech at issue and the likelihood of the Court and individual justices voting in favor or against the First Amendment claim. This result also is consistent with theories of in-group bias/favoritism--that people give preferential treatment to members of their own group.

I still believe the liberal/conservative labels are too crude generally and especially as applied to expression. Plus, is it really in-group bias that is going on in First Amendment cases? While I agree with the outcomes in the flag-burning cases and in Snyder v. Phelps, I'm not sure I am "part" of either group. We could tweak it as political agreement or sympathy, but I certainly would not say I agree with the ideas expressed by the speakers in either of those cases. And in something like campaign finance, we don't even know what the speech at issue will be; there is an assumption that the corporate speakers will make conservative speech, but do we know that is true in the abstract?

Anyway, the study is useful in showing that the simple notion of a complete alignment or complete reversal of left/right support for speech both are wrong. Beyond that, more grist for the discussion.

Scalia, judicial ideology, and flag burning

Dan flags Richard Posner's negative review of Justice Scalia's new book (with Brian Garner), a review which largely speaks for itself. I wanted to delve into a side issue regarding Justice Scalia's vote in the flag-burning cases and what it says about his judicial philosophy.

As Posner describes it, Scalia tries to mount a preemptive defense to the charge that their interpretive theory of "textual originalism" is not political or inherently conservative by pointing to "liberal" decisions he has joined. His choice--the flag-burning cases of Texas v. Johnson and United States v. Eichman. Indeed, Johnson and Eichman, and Scalia's votes in those cases, have for 20+ years been the go-to exhibit to demonstrate that the justices are not governed by political preferences. Posner argues that this is a "curious" example to use in defense of textual originalism, since the First Amendment doctrine that led (properly) to constitutional protection for flag burning is a modern product, not grounded in the Framers' understanding of the freedom of speech. Posner argues that Scalia and Garner repeatedly praise Blackstone, whose conception of free speech was limited to prohibiting prior restraints but not post-speech punishment.

More fundamentally, using a few free speech cases to demonstrate his ideological neutrality is strange because the First Amendment should be, in theory, deologically neutral. That Scalia does not personally approve of flag burning is beside the point; the goal is that he is committed to a principle of occasionally caustic criticism. Or, if Scalia wants to use his speech-protective votes to show his open-mindedness, why not focus on R.A.V. v. City of St. Paul, where he wrote a broad opinion invalidating an ordinance prohibiting cross burning.

Ironically, there is a different area in which Scalia's votes have been ideologically unexpected while also arguably adhering to some form of originalism--the Confrontation Clause cases of the last decade, beginning with Crawford v. Washington. Writing for the Court and adopting an explicitly historical approach to the Sixth Amendment (with prolonged discussion of Marianist ex parte affidavits and the treason trial of Sir Walter Raleigh), Scalia pushed the Court down an analytical path that had the potential to greatly constrain the ability of government to admit a range of hearsay statements against criminal defendants. And when the Court backed away from some broader applications of Crawford, Scalia remained in outraged dissent. He stuck to his historical guns, even as Justice Sotomayor took a shot at his approach by insisting that the murder investigation at issue in Bryant was "readily distinguishable from the "treasonous conspiracies of unknown scope, aimed at killing or overthrowing the king," post, at 1173, about which Justice SCALIA's dissent is quite concerned." In fact, Scalia closed his Bryant dissent with a downright Brennanesque flourish:

For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

This is a true example both of originalism yielding liberal results; it would be nice to see Scalia and others focus on this example and not on free speech cases that reflect a very different analysis and a different set of expectations.

Why apologize?

I have argued before against political discourse demanding apologies from people who stay stupid things, as well as against people who say stupid things feeling the need to apologize for saying those stupid things. I would prefer that everyone own their words and we move on from there. Maybe I'm just too much a believer in the Kinsley Gaffe. Or maybe I'm too convinced that any apology, if subjected to scrutiny, will be utter, incomprehensible bullshit.

Exhibit 502 is GOP Senate Candidate Todd Akin. He has a new 30-second ad apologizing and asking for forgiveness (not sure from whom--voters? GOP funders? Mitt Romney?) over his recent comments about "legitimate rape" never leading to pregnancy because women's biology shuts down and prevents pregnancy if it really is rape. In the ad, Akin says he "used the wrong words in the wrong way" and "The fact is, rape can lead to pregnancy. The truth is, rape has many victims. ... The mistake I made was in the words I said, not in the heart I hold."

Let's break this out.

• "Wrong words in the wrong way"--Akin already clarified that by "legitimate rape" he meant "forcible rape," a common rhetorical move among anti-choice activists and representatives as a way to justify limiting rape exceptions for abortion restrictions. Not sure what that changes, other than returning to code that low-information voters won't recognize.

• "The fact is, rape can lead to pregnancy"--So why did he say otherwise? Can you really call what he said a misstatement? It's not like he was trying to explain some complex nuance of economics.  If you say "X" as a hard scientific fact, it is hard to believe you really meant to say (or really believe) "Not X."

• "The mistake I made was in the words I said"--Again, what words did he mean to say?

I will give Akin credit for not blaming the media and Democrats for playing "gotcha" or for taking his comments out of context. He is owning that he said something he regrets. I wish he would own meaning what he said, because it seems pretty clear that he does.

Women's Sports and the Olympics

A few of thoughts and questions on a good morning to talk about women's sports and Title IX, in the wake of 1) yesterday's gold medal win by the U.S. women's soccer team before 80,000 at Wembley Stadium (and millions more live on some medium--are you listening NBC) and 2) the Second Circuit's decision earlier this week holding that Quinnipiac University violated Title IX by trying to eliminate the women's volleyball team.

First, there has been  talk in the last few days about US women earning more medals, and more golds, than their male counterparts. Yesterday's wins in soccer and water polo add to that, as might a gold in today's women's volleyball final (the men were eliminated in the quarters).

Second, here is a nice essay by Slate/NPR's Stefan Fatsis about the women's soccer match and its "meaning," arguing that it actually has no deeper meaning other than that a bunch of women's teams played an exciting tournament that in every way (from playing hard to bitching about the refs) resembled a men's tournament, was watched by a lot of people, and can be evaluated on its own terms. He does consider briefly what the large audience for Olympic soccer tells us about the sustainability of a professional women's league (a point I addressed here). I do like his broader point--that women's sports is, slowly, becoming less of a cause and a simply a matter of good competition.

Third, the Second Circuit decision received some attention because Quinnipiac had sought to make up the lost volleyball spaces by creating a competitive cheerleading team; this required the court to consider whether cheerleading is a sport, concluding it was not (although not for the reasons I would offer--it had to do with how well-established and well-organized something was as a competitive event, meaning cheer could become a sport some day).

A question: Would a more purposivist take on Title IX uniformly favor opportunities in volleyball or soccer over opportunities in cheer, given the statute's goal of creating new opportunities for women in sports? Cheerleading predates Title IX by many years, obviously, and it seems to me it would undermine the statute if schools could satisfy their statutory obligations by increasing the number of opportunities for women/girls to do what they have been doing all along rather than providing genuinely new athletic opportunities.

Compelling patients to listen

On the heels of wave of state laws requiring doctors to provide and narrate ultrasounds and spout state-mandated speeches about medically dubious consequences of abortion comes the new policy regarding use and distribution of baby formula in New York City hospitals, part of the City's "Latch On" campaign to promote breast feeding. The new regs require hospitals to keep formula locked away and to sign it out to patients who take it, prohibit hospitals from giving away free samples to departing parents, and, most problematically, give parents who want formula a mandatory talk about why breastfeeding is best (even if not to come right out and say, as the doctor did here, that "forumula is evil").

The last prong is problematic, for the same reasons that the abortion speeches are problematic. It forces a one-sided message down the throat of a female (as always) patient, in a vulnerable position, presumed not to know any better or to be able to make decisions. Of course, we are not hearing any First Amendment complaints because the compelled speakers--the medical professionals--are on board with giving these speeches about nursing, in contrast to their views about ultrasounds and the abortion-suicide link.

The answer lies in a First Amendment liberty of the patient not to be compelled to listen to government-ordered messages, at least within certain conditions, such as the face-to-face intimacy of the doctor-patient relationship. I have not thought through the details, limits, or implications of this liberty (so any help is appreciated). But it seems to me that it partakes of some aspects of the captive audience and some aspects of Paul's institutional focus on how the medical profession should function and should be allowed to function. There also is a problem of one-sidedness; while breastfeeding may be the better option, the alternative is not affirmatively harmful to a child and should not be presented to patients as such. This liberty recognizes that there is a second party to doctor-patient conversations whose First Amendment interests should not be disregarded, particularly in a way that assumes lack of agency. Again, I welcome suggestions on how this liberty might take shape.

Recognizing this liberty still leaves it to be balanced against the government's interests in promoting public health positions. But it seems that there will be ways for government to gets its message (whether about abortion or the benefits of breast milk) across without compelling participation in a one-sided conversation.

On a personal note, I come to this question having made a deliberate decision with my wife, with the full support of our pediatrician, to give our daughter formula, for a variety of reasons. I am happy to say she shows no deficit in any of the areas that breast milk is supposed to enhance. I also can say that hearing a speech suggesting that we were hurting her by our decision would have been incredibly harmful at the time. Of course, for every story such as ours there is a story going in the other direction. But maybe that means a one-size-fits-all speech is not the appropriate public-health solution.

 

The Collection Gap

Along with Ezra Ross (now of UCI), I have started a new blog, The Collection Gap, which deals with regulatory enforcement failure.  The blog was inspired by our article, The Collection Gap: Underenforcement of Corporate and White Collar Fines and Penalties, 29 Yale L. & Pol'y Rev. 453 (2011), which found that agencies are leaving billions of dollars in criminal, civil and administrative fines and penalties uncollected, even where offenders have the ability to pay.

One of the things that drove us to pursue this topic was the fact that, while there was much debate about whether or how much to fine corporations, there was little if any discussion about whether the fines that were imposed were ever actually collected--which obviously impacts deterrence and institutional legitimacy, among other things.  Agencies like the EPA get the benefit of announcing big headlines ("Biggest fine ever against polluter X..."), but are not held accountable for failing to follow through.  Part of the problem is simply resources, but we believe that to a large extent it has to do with insufficient incentives at the institutional and individual levels.

I would welcome thoughts or suggestions about other situations in which problems with policy implementation threaten to undermine the policies themselves.  It's the type of thing that often doesn't get much attention, but could have a lot of practical impact regarding how government actually operates and affects people's lives.

Armstrong tries again

It only took a day from getting slapped down by a federal district judge to refile his lawsuit against USADA and its CEO, again with claims for tortious interference, common law due process, and Fifth Amendment Due Process. The new pleading is 25 pages and 82 numbered paragraphs--truly short and plain. This suggests that the original complaint was 55 pages and about 180 paragraphs of snark and vitriol.

I want to break down the Fifth Amendment claim because I do not believe it can succeed. I have been writing about state (and federal) action for the past few days, so this story links well to my current work. Here goes.

First, to the extent Armstrong is seeking money damages for the Fifth Amendment violations, this is a Bivens action. But the Supreme Court has in the past decade made clear that neither a private entity nor its employee can be subject to Bivens liability, at least where state remedies are available (as there are here--Armstrong is pursuing them in the same case). Now both Malesko and Minneci were Eighth Amendment claims involving privatized prisons, so maybe this is a different circumstance. But there is a good argument that Bivens now runs only against government officers and joint private-federal participation does not create constitutional liability against private persons as it does under § 1983.

Second, even if a Bivens action is possible, I doubt it works here. The complaint alleges four sets of facts aimed at showing joint private-federal participation; most of them do not work. I cannot make this case fit into any of the recognized tests for action under color of law.

    1) Congress was "instrumental" in creating USADA and USADA receives 2/3 of its funding from Congress. Nope. Receipt of government funds, even in large amounts, does not make a private entity a government actor. Think of how much money private hospitals get from Medicare and Medicaid.

    2) "Defendants exercise powers traditionally exclusively reserved to the State." Nope. Regulating sports is not a traditional government function, nor one it alone has historically done.

    3) USADA conducted its investigation of Armstrong in conjunction with several federal agencies, including DOJ, the FBI, and the FDA. The USADA's case is based on the evidence jointly gathered. This one is closer, because this type of joint operation can be sufficient to make a private actor public. The problem for Armstrong is that the connection must be between the government and the challenged conduct. Armstrong does not challenge the joint investigation itself; he is challenging USADA instituting internal procedures against him for doping. But the federal government plays no role in those procedures or in the establishment of the rules that USADA follows. That the adjuducation relies on government-gathered evidence is not sufficient.

    4) USADA has been delegated authority to regulate and monitor drug-testing, exercising an express power grant of Congress and carrying out federal treaty obligations. Again, closer, but I am not convinced. Mere delegation of power or authorization to act in some area, even to the point of having exclusive power, is not sufficient. Nor is the simple fact that the private entity is doing something the has public import. That USADA is ensuring that the U.S. complies with treaty obligation point is a nice fact, but I do not believe it is enough.

I leave discussion of the tort, contract, and arbitrability issues to smarter hands. In the meantime, is there something else I am missing?

"The Fog of Law": Covering the Court

If, as some believe for varying reasons, the ACA decision will have limited precedential effect, perhaps its legacy will be on how the press covers the Court. For one thing, we have the seemingly unusual number of leaks in the immediate aftermath of the decision. For another, we have the rush to report the result as quickly as possible, leading to the famously incorrect initial reports by Fox and CNN that the individual mandate had been invalidated. Tom Goldstein has this lengthy rundown of the nine minutes from when the Chief began reading the opinion from the bench (at which point the Court's Public Information Office began distributing the opinion) until CNN corrected itself.

As Goldstein describes it, it was quite the ride. I was particularly intrigued by several things in the rundown: 1) His description of the information gap at the White House and that, for a while, the President knew less than much of the country; 2) the nice media ethics question of whether Fox or CNN screwed up or whether this is just how immediate reporting should go, with the key being their willing to quickly self-correct; 3) the way social media, even when connected to a larger news organizations, has a life of its own--news organizations were holding off until they got it right, but their own Twitter desks were reporting something; and 4) the way some SCOTUSBlog commenters were mad at the Blog reporters when their conclusions conflicted with Fox and CNN (Tom describes them as insisting that Fox and CNN were res judicata on other sites). Finally, the Fox anchor began the process of correcting the network by saying reports are coming in the "fog of law"--that is a fantastic title for an article, name for a legal blog (if Dan someday boots me off here, you know where to find me), or both.

I continue to believe this was a unique case in terms of the number of people (and not just lawyes, politicos, and other over-educated geeks) paying attention to a a case with a known date of decision, so maybe this remains sui generis. Still, Goldstein offers some suggestions for both the news outlets and the Court itself for handling future cases.

Interestingly, the one thing Tom does not mentin is cameras in the Court. Wouldn't it all have been so much easier and more accurate if there had been live video and audio of Roberts reading his summary from the bench? Everyone could have waited and watched it play out in real time and gotten the answer directly from Roberts himself. Relying solely on the press (and other information outlets such as SCOTUSBlog) as intermediaries is problematic when the race to be first results in fundamental mistakes, no matter how easily correctable and ultimately harmless.

Posner and the current GOP

Nina Totenberg has an interview with Judge Posner, in which he discusses how apart he feels from the current GOP and movement conservativism, which he describe as "goofy" and a "crowd of lunatics." Posner's public stance is comparable to Charles Fried's outspokenness on the individual mandate, suggesting that some of the older-guard Reagan-era conservative elites have not followed the GOP's sharp libertarian move.

I do not buy Posner's suggestion that the conservative criticism of Roberts is going to cause him to re-examine his positions. Roberts is not David Souter and, current noise notwithstanding, is not about to become David Souter.

Constitutionality and political workability, redux

Back in April, I wrote about a Ronald Dworkin essay that argued that ACA was the only politically feasible way to obtain universal health care and that the Court must consider the political realities in deciding on constitutionality, which is the point of McCulloch. If the end (universal health care) is proper but Medicare-for-all is not politically feasible, must the Court defer to Congress choosing a different, politically feasible means to that proper end, so long as it does not run afoul of an individual liberty (which Barnett, Rivkin, et al. continually disclaimed).

One common opinion is that this decision (invalid under Commerce, valid under Tax) will not have much practical effect. Congress rarely enacts mandates and now, when it must do so, it can rely on the Taxing Power. But here is where political reality comes back into play. We are in a period in which no one in Congress wants to enact anything called a tax. First, it makes it  impossible to get any Republicans on board, given the influence of the Tea Party and/or Grover Norquist and the generalopposition to all taxes. Second, it is political death because a tax always can and will be demogogued into a "tax increase" and used to bludgeon any official to death in the next election.

So the effect may be to make it impossible for Congress to act vigorously in many areas going forward, because one power source has been cut off and the one that has been allowed is not practically useful.

So, did John Roberts Succeed? Some thoughts on being too clever by half.

Thanks to Dan for having me back!

Though I'm not sure I can add much useful insight to the polyphony already out there about the Supreme Court decision in the Affordable Care Act case, the question that's moving me to blog, now that we're a few days out, is whether Chief Justice John Roberts in fact succeeded in his ostensible goal--that is, convincing the nation that this was not a politically or ideologically driven decision and that the Supreme Court is not a political/ideological institution.

Obviously, the disposition of the case did not ultimately break down on ideological lines. No one can dispute that. But at the same time, from this postgame perspective, Roberts's rather cunning opinion appears to me to be more politically driven than it would have if he had just voted with the conservatives. 

 

First, it's pretty much an accepted fact, among legal academics and, I'm guessing, the public at large--especially after exposés like this one on Roberts's "switch" in time--that the decision was crafted primarily (or exclusively) to achieve Roberts's political goals. Second, it is pretty unpersuasive from a doctrinal perspective. And third, it is almost Marbury-like in its simultaneous giving-and-taking-away of authority from the political branch. 

Ultimately, I doubt the opinion itself will have much staying power--which is another way in which it, ironically, resembles Bush v. Gore (the type of precedent Roberts was presumably trying not to re-create). I guess I just wish that Roberts had done the right thing by, well, doing the right thing--not by crafting the most politically cunning decision since Marbury v. Madison.

 

Comments on ACA post-mortems

A couple of comments on other people's commentary on the ACA decision:

1) At CoOp, Joseph Blocher is "genuinely confused" by Chief Justice Roberts's explanation for why his Commerce analysis was necessary. I discussed what I believe to be his syllogism on this, although I doubt its merit. I previously raised the issue of how this plays out, as with ACA, when Congress enacts legislation pursuant to several powers. Joe raises the opposite concern: Suppose Congress enacts legislation explicitly relying on only one power and the administration defends on that power alone. Can the Court decide that the law "reads more naturally" as grounded in a power on which Congress never relied and analyze that power (as a necessary part of the decision and thus part of the holding) before discussing the power on which Congress actually relied? That would create a truly strange way of understanding congressional power and the scope of judicial review. It is also ironic given Republican instence at the start of this Congress that all laws include explicit reference to the power source behind the law. Can courts now ignore (or supplement) what Congress says?

2) At Balkinization, Joey Fishkin (who predicted the result a couple of weeks ago) call the decision a "massive victory for liberalism" because ACA will now be implemented and soon will become part of the fabric of the social compact. People will become accustomed to having health care or its option or to paying the minimal tax knowing that health care and health insurance will be available when (not if) they need it.

I want to flag one of Fishkin's points: "The glib libertarian vision of young men (and it is always young men) free to go without health insurance (and freeload if they get sick, of course) will gradually lose its grip on the public consciousness." This is an interesting point, both in the rhetoric (which he accurately describes) and in the demographics. Are otherwise-healthy 25-year-old women more likely than similarly situated men to have and use health insurance because of gynecological needs? And how does (or did) that gender disparity play in the overall legal and scholarly debates?

ACA Constitutional

The Chief joins Ginsburg, Breyer, Sotomayor, and Kagan.

Opinion here (warning: it's 193 pages)

Waiting for a judicial announcement

When was the last time that the entire country was waiting for a particular judicial decision that we all knew was coming on a specific day and at a specific time? If you think about the other universally anticipated SCOTUS decisions of recent years, we did not have such prior notice of when the decision would be coming down.

Strangely enough, I keep coming back to the O.J. Simpson verdict. If you remember, the report came out that there was a verdict in the afternoon (I think it was a Tuesday) and Judge Ito announced that the verdict would be announced the following morning. So everyone knew exactly when to tune in and exactly what was coming.

Other examples?

Corporations = Skokie Nazis?

No, the title is not an attempt to violate Godwin's Law.

Back in March, the ACLU issued a statement defending Citizens United and opposing efforts to amend the Constitution to overturn that decision. Although old, that statement is getting renewed attention with the introduction this week of a constitutional amendment (proposed by California Democrat Adam Schiff) overturning the decision and seeking to carve campaign finance out of the First Amendment. This is only the latest proposal.

The ACLU statement has lead to surprise in some circles (including on a list serv for con law types) that a group that "leans strongly left" such as the ACLU would oppose the amendment, the suggestion being that any such amendment must be a bad idea if even the crazy lefties at the ACLU are against it. We can debate whether the ACLU leans strongly left as an overall matter. But the suggestion that it only protects left-leaning viewpoints in First Amendment disputes is, in overwhelming part, wrong. Particularly on campaign finance, where the ACLU has filed amicus briefs in opposition to the regulations in most of the recent cases.

The ACLU's position triggered another thought: Where does its membership generally stand on Citizens United and how is the organization's position (on the decision and on any amendment) playing? The ACLU's famous defense of the Skokie Nazis in the late '70s is looked on as a high-water mark of free-speech principle-- defending deplorable speech you absolutely hate. But at the time, it resulted in canceled memberships and a scramble by the national and local chapters to explain the position and calm angry members. Might the defense of CU (and opposition to efforts to undo it) trigger similar outrage among its members? Or will this fly more under the radar with members, since the ACLU is not at the public forefront of either the CU litigation or the opposition to any amendment?

Ideological judges, evolving judges

A colleague offered the following, as a possible explanation for the increased public perception of a divided partisan Supreme Court: We have no "cross-over" justices. The "conservative" justices all were appointed by Republicans, the "liberal" justices all were appointed by Democrats (my colleague rejects these labels and so do I, thus the danger quotes, but they are the labels everyone is using). We no longer have a Justice Stevens or Souter or, from the other side, a Justice White, who regularly vote contrary to the constitutional and political viewpoints associated with the party that appointed them.. So the Court looks like Congress and the public begins to view it that way.

Let me suggest a corollary idea: Justices are not "evolving" anymore. The "conservative" justices generally remain in step with the prevailing political leanings, interests, and issues of the appointing party, even 20-25 years later. Same with the "liberal" justices.

One explanation is that the core constitutional commitments associated with each party have not evolved or have remained consistent over time. In other words, we are not seeing people such as Justice Frankfurter or, to a lesser extent, Justice Black. Both were Democratic appointees appointed with the hope that they would uphold congressional power to enact the New Deal and they followed the Democratic line in doing so. But they then fairly quickly found themselves out of party step when the core issues about which Democrats cared became individual liberties, substantive due process and unenumeratred rights such as privacy and reproductive freedom, and vigorous judicial policing of individual liberties.

Instead, current constitutional battle lines remain consistently drawn across issues and the Justices are mostly in step across issues and provisions. Thus, while Frankfurter had Democrat-friendly views on congressional power, he had less-Democrat-friendly views on the new issues of civil liberties and judicial protection of civil liberties. So he was voting contrary to what you would expect from a Democratic appointee by the 1950s. By contrast, Justice Scalia's views on congressional power, equal protection, and reproductive freedom  match up with the prevailing Republican view, just as  Justice Ginsburg's views on all three match up with the prevailing Democratic view.

Perhaps this is an inevitable result of the polarization of the parties. We get far greater consistency in the overall constitutional vision of each party, such that judicial appointees (who are far better vetted than they used to be) carry that vision across all the issues. Roosevelt appointed Frankfurter in 1939 with an eye on upholding the New Deal; he was not thinking about these other constitutional questions or anticipating that they might become important. On the other hand, Reagan appointed Scalia or Obama appointed Kagan with the expectation that each would be a consistent vote for their constitutional visions across the board, because the respective visions are so consistent down the line.

Judicial term limits and the lower courts

The ongoing Slate Hive Discussion How Can We Fix the Constitution is posting proposals for constitutional amendments, from both invited contributors and readers. Some of the ideas are worth a look. Linda Greenhouse's new contribution argues for amending Article III to replace "good behavior" tenure with an 18-year term for judges of the supreme and inferior courts; Larry Sabato offers the same proposal. Both would keep salary protections. Eighteen years copies the statutory reform proposal spearheaded by Paul Carrington. But while Carrington's statutory proposal only applied to Supreme Court justices, Greenhouse and Sabato propose 18-year terms for all federal judges, although their concerns are limited to SCOTUS.

While I have come around to the Carrington proposal as a statutory change for SCOTUS, the idea and need for term limits does not translate easily to lower court judges. At the very least, changes cannot be one-size-fits-all for the entire federal judiciary and thus should be done by statute rather than by constitutional amendment.

Start with whether term limits are even necessary for lower court judges. Again, Greenhouse's post focuses entirely on limiting the power of SCOTUS, before then proposing an amendment covering all federal judges. On one hand, we can say lower court judges wield more power because they decide so many more cases than do the justices. And because the courts of appeals are the practical court of last resort for most cases and issues (at least in the short term), they provide the last word on a lot of legal issues. And with senior status, lower-court judges easily can and do serve 40+ years. So the concern for super-annuated judges sticking around for a long time is applicable. On the other hand, an individual court of appeals judge wields less power because courts of appeals hear the vast majority of cases in three-judge panels (with en banc review limited to relatively infrequent major cases), so even the most influential judge likely will not be involved in many of the key cases that pass through her court. District judges do not make binding precedent, so their decisions do not influence the world at large or the state of the law  at a national level (beyond the parties to the case) to the same extent.  Concerns for the "insularity" of life tenure also have less resonance for district judges, who interact regularly with lawyers and (gasp!) litigants. In fact, given that major litigation can take years, perhaps there is a benefit to the stability that comes with long-serving trial judges.

Even accepting the need for term limits, 18 is not necessarily the appropriate number for lower courts. That number is being bandied about with SCOTUS in mind--the idea is to give every President a SCOTUS appointment every two years, thereby (it is hoped) removing some of the hostile politics from the confirmation process. And 9 x 2 is 18. Makes sense.

But lower courts are all different sizes. At the court of appeals, the First Circuit has only six judgeships, the Ninth Circuit has 29, and all the other regional circuits have between 11 and 17. For district courts, many small districts have three judges while several larger districts have in the 20s. Interestingly, no lower court has exactly nine judgeships. The point is that the simple math that works for SCOTUS does not work across the federal judiciary. We could create a workable scheme that uses different term limits for different courts, but not if the singular solution is imposed by a number enshrined in the Constitution.

Moreover, I have not worked out the numbers on this, but what would such regularized appointments in the lower courts do to the workload in the White House, the Senate Judiciary Committee, and the Senate? The idea is a consistent number of routine biennial appointments. Can the President really nominate, and the Senate confirm, 106 judges (one justice, 13 circuits, 92 districts) every two years? And what happens if the confirmation process slows down (for whatever reason), when there is a rash of constitutionally imposed retirements looming?

Finally, if the 18-year-term is constitutionally imposed, then what? A blunt constitutional limit does not seem to allow for anything like senior status; it appears every judge serves 18 years, then ceases being a federal judge. This is problematic for a number of reasons, especially in the lower courts. As Steve Burbank and his co-authors show in a new paper, senior district and circuit judges are keeping the lower courts afloat by taking on even heavier caseloads than they are statutorily obligated to take on and sitting by designation in other regional circuits to help with heavier workloads. Absent the creation of new judgeships (something Congress seems unwilling to do), lower courts cannot function without senior judges. What happens if we lose that group, especially if it is accompanied by a constitutionally mandated retirement on that court every two years? One appealing aspect of the Carrington proposal is that it gives the justices who have rotated out the option of becoming a "senior" justice, who would hear SCOTUS cases when necessary, but primarily would sit by designation in the lower courts. This would provide an additional group of senior judges to help with the work in the courts of appeals.

I still am not sure where I come out on term limits for lower-court judges. The point is that we cannot paint the entire federal judiciary with a single brush. At bottom, these proposals are concerned only with  SCOTUS, which is all anyone cares about outside the legal academy and the legal profession. So if the concern is SCOTUS, then limit the amendments only to the justices. Leave the lower courts for separate consideration of whether to change and how.

Free speech tea leaves

This Supreme Court term was lighter on free speech cases than the past couple of terms, with only four. Yet the Court has not yet decided any of them. The Court today decided Reichle v. Howards, from the March sitting, which really is more of a qualified immunity case than a pure free speech case. (In fact, the majority expressly avoided the question of whether the plaintiff's First Amendment rights were violated or whether a Bivens action is available for First Amendment violations). Of the three pure speech cases, two--FCC v. Fox Television and Knox v. SEIU--are the only two cases still undecided from the January sitting, and U.S. v. Alvarez is one of only two cases still undecided fom the Feburary sitting.

What can/should we read into this delay? Does it suggest a deeply divided Court? Does it suggest a number of concurring and dissenting opinions circulating? Does it suggest the absence of majorities or ongoing efforts to cobble together majorities? Moreover, does the delay suggest anything about which way the cases are going to come out? Perhaps none of this should be surprising given the nature of these cases. Alvarez (a challenge to the Stolen Valor Act) deals with a tricky issue of the constitutional status of false statements of fact and may have broad effects on a range of state laws prohibiting electoral falsehoods, as well as the place of seditious libel in the First Amendment. Fox deals with the validity of federal regulatory policy and the continued vitality of FCC v. Pacifica, a 30-year-old precedent. And Knox brings free speech into collision with ideological views of unions.

To the extent the Court is divided in many of theses cases, this would mark a significant departure from the past several terms, where (outside of campaign-finance), free speech cases mostly have been decided by strong majorities, whether upholding the pro-speech position (Snyder, Stevens) or rejecting it (Reichle was unanimous, although Justices Ginsburg and Breyer concurred only in the judgment). And, at least from a distance, the last two terms have shown a Court with a strongly civil libertarian position on free speech. As Lyrissa has argued, the Court has adhered to a broad view that speakers should be allowed to speak free from governmental restriction, with judicial suspicion arising only when government attempts to help someone to speak.

It just seems as if we have been waiting longer than usual to see if that view continues to prevail.

 

Sports and personal jurisdiction

Yesterday, Jonathan Vilma, a linebacker for the New Orleans Saints and the player-leader in the teams alleged "bounty program" (paying out cash for injuring opposing players), filed a defamation action against NFL commissioenr Roger Goodell in the Eastern District of Louisiana. Having read the complaint, one of my first thoughts is that there is an interesting potential personal jurisdiction issue here. If Goodell does challenge personal jurisdiction, the precdent that Vilma must overcome comes, ironically, from Roger Clemens' defamation action against Brian McNamee (not to be confused with the government's seemingly abortive prosecution of Clemens for perjury).

Vilma sued in Louisiana, where he works but does not live, over comments that Goodell made in several press releases written and issued in New York about the bounty program, which largely took place or came out of Louisiana. Goodell allegedly intended and expected his statements to be disseminated publicly and, presumably, nationally. In Clemens, Clemens sued McNamee in Texas over statements McNamee made to the Mitchell Commission and to a Sports Illustrated reporter in New York about conduct occurring in New York and Toronto. The Fifth Circuit (which also includes Louisiana) held there was no personal jurisdiction over McNamee because he did not target his statements at Texas. He was speaking in New York about non-Texas events and had no control over where the statements ultimately were ultimately disseminated. The majority never really considered whether McNamee knew or intended his statements would be published in Texas or anyplace other than New York. The key in Clemens is that the Fifth Circuit refused to impute the obvious Texas contacts of SI or even the reporter (Clemens did not sue either one, but obviously SI published in Texas and the reporter would have known that) to the source of the statements, who only knew he was talking to someone in New York and had no knowledge or control over what happened next.

A few distinctions do leap out, so Vilma may be able to establish jurisdiction even in the face of Fifth Circuit's narrow approach. First, Goodell's statements, although made in New York, concern conduct occurring in Louisiana, so his particular statements were "directed" at Louisiana. Second, it could be argued that Goodell was more in control of the ultimate dissemination of his statements (since he knows national media, including media in Louisiana, will report his every word) than McNamee was in talking to a reporter from Sports Illustrated. Third, the lawsuit targets not only Goodell's press releases that were reported on, but also defamatory statements in reports he sent to all 32 teams about the investigation and findings; one of the teams to receive that report, of course, is the Saints, in Louisiana. Goodell had more affirmative control over the publication of his comments, including intentionally sending some written materials into the state. Fourth, it is telling that Vilma did not sue in Florida, where he lives, recognizing that merely feeling the effects of defamation at home would not be sufficient under the effects test, where the conduct falsely described took place elsewhere.

Standing, sovereign immunity, and marriage equality litigation

My new essay, Rejecting Sovereign Immunity in Public Law Litigation, has been published at Fordham Law Review's Res Gestae. I am responding to Matthew Hall's Standing of Intervenor-Defendant in Public Law Litigation.

In ongoing marriage equality litigation, the named executive-officer defendants have declined to defend the constitutionality of the relevant laws in court. California's governor and attorney general refused to defend the constitutionality of Proposition 8; various federal cabinet officers, including Eric Holder, have refused to defend § 3 of DOMA in the strongest terms. This has lead to a scramble of other actors seeking to jump into the litigation to defend the constitutionality of the anti-equality law. In California, it was the sponsors of the popularly enacted law (who were allowed to defend in the trial court and appeal the adverse judgment to the Ninth Circuit); as to DOMA, it has been the Bipartisan Legal Advisory Group ("BLAG"), a standing committee of the House leadership. Hall argues (in a piece he presented at the Junior Fed Courts Workshop in February) that this type of intervention is proper only if the intervenor-defendant can satisfy a form of independent defendant-specific standing, to ensure an Article III case-or-controversy with a genuinely adverse and interested defending party.

I argue in response that this really should not be a matter of Article III standing and we only talk about it in those terms because of sovereign immunity. Sovereign immunity (of state and federal governments) prohibits private litigation against the government eo nomine (subject to some exceptions typically not applicable in constitutional litigation) and forces constitutional plaintiffs to sue responsible executive-branch officers under the theory of Ex Parte Young. But if we reject sovereign immunity, which arguably has no logical place in a republican system of government, we also eliminate the need for Young or the individual-officer workaround. We also eliminate the scramble of would-be intervenors that we have seen in the marriage equality cases. Plaintiffs can simply sue the state or the United States by name, giving us an unquestionably interested and adverse named defendant. The government then decides who is authorized to defend it (to "be" it) in court, when, and how.

The space limitations of a law review supplement forced me to leave out some important pieces to this idea. But I hope to go back and dig a bit deeper into it in the future, so comments and thoughts on Matt's and my exchange are welcome. I will add that I am on a SEALS panel this summer on the future of Ex Parte Young and this essay will provide the starting point for my presentation there--if there is no sovereign immunity, there is no need for Ex Parte Young in its most common application.

So now what?

Rich Hasen has a Slate piece discussing Thomas Mann and Norm Ornstein's new book on just how broken the federal government is. Hasen agrees with Mann and Ornstein that the problem is a "mismatch between our form of government and our new, fiercely ideological political parties." Hasen suggests that the only answer is a move to a more parliamentary system, but that requires major constitutional amendments that Hasen agrees will not happen in our lifetime. After explaining (correctly, I think) why the Mann/Ornstein proposals won't solve the problem, Hasen says "we need to go back to the drawing board on how to fix Washington."

But what exactly are we doing on that drawing board? A drawing board suggests we are rewriting or redesigning things, but any new designs require constitutional amendments that will not happen. So large-scale change is politically impossible. The small-to-medium-scale changes that Mann/Ornstein propose either cannot happen politically or will not solve the problems or (most likely) both.

So now what?

Comparable measures of ideology

An interesting article in the most recent American Journal of Political Science by Joshua Clinton, Anthony Bertelli, Christain Grose, David Lewis and David Nixon, measures the preferences of Bureaucratic Agency actors. Although the article focuses on congress and the presidency, it has relevance for those who study law and courts because there is so much interaction between courts and federal agencies. It is one more useful tool to help determine the influence of courts on agency policy - of course that happens to be an area in which I do a lot of work, so I am particularly interested.

Now back to listening to the late Levon Helm and the Band

Brief Thoughts on Photoshop Diversity and Elizabeth Warren

Many thanks to Dan and the rest of the Prawfs regulars for having me as a guest this month. I'll be posting mostly about issues relating to my recent research on antidiscrimination, affirmative action, and diversity.

On that note, I have followed the recent discussion of Elizabeth Warren's racial self-identification with great interest. That discussion seems to me a symptom of an uneasiness with affirmative action and the diversity rationale that goes far deeper than the question of whether Professor Warren's self-identification was "accurate," or whether she was "seeking an advantage."

In my article Racial Capitalism, forthcoming in the Harvard Law Review, I argue that the diversity rationale for affirmative action assigns a value to non-white racial identity.  As a result of this value, the diversity rationale also creates incentives for predominantly white institutions to display and promote the presence of non-whiteness within the institution.

Schools' promotional materials provide one window into this phenomenon. At the extreme, schools have been known to photoshop people of color into photographs to communicate the impression of diversity and racial integration. In 2000, the University of Wisconsin notoriously photoshopped a black student into its admissions brochure (the original and photoshopped brochure can be seen here). Other schools have engaged in similar photoshopping, and the practice certainly isn't limited to schools (for a few examples, see here and here).

But even when promotional materials don't involve photoshopping, colleges and universities still engage in measures to advertise their racial diversity. A recent study examined the promotional materials of 371 colleges and universities and found that non-white students were significantly overrepresented in photographs -- for example, Asians made up 3.3% of enrolled students but 5.5% of students depicted, and blacks made up 7.9% of enrolled students but 12.4% of students depicted. Indeed, the trope of schools visually proclaiming their diversity  has become so common as to provide fodder for satire.

The drive to display diversity is not limited to the visual. Virtually every college, university, and graduate school website includes a prominent link to statistics touting the diversity of the school's student body.  And U.S. News currently maintains a ranking system -- apart from its influential but opaque system of overall rankings -- based on a "diversity index." Schools who score high on that metric often publicize their status.

So where does this leave us with respect to Professor Warren? Perhaps with the idea that Warren's racial self-identification is one issue, and Harvard's decision to claim her as a person of a particular racial identity is another. Sociological research suggests that it's relatively common for people of racially mixed backgrounds to identify themselves differently at different times and for different reasons, and Warren's explanation that she identified herself as Native American in law school directories because she wished to meet others who shared her background and experiences seems, at the very least, plausible.

An institution often has different incentives.  Given the value placed on diversity, an institution often has every incentive to maximize its apparent diversity.  This might happen with or without the knowledge of its members -- that is, Harvard might have chosen to tout Elizabeth Warren's Native American identity with or without her knowledge or consent.  Of course, I don't know exactly what happened in this particular situation, and it may be that no one really remembers at this point.  From personal experience, though, I know that institutions do claim individuals to boost their diversity numbers.  For instance, a large law firm where I worked for a summer decided to identify me as "Asian" in statistics proclaiming the diversity of its summer class, even though I'd elected not to self-identify in a demographic questionnaire it circulated.

My ultimate point is simply that it's analytically useful to separate institutional use of racial identity from individual self-identification.  Sometimes the two have little in common -- ask any person of color who's been involuntarily photoshopped into a picture.

I look forward to delving more deeply into these topics in coming weeks.

Vladeck on the new Padilla decision

I have not yet had a chance to really get into yesterday's decision in Padilloa v. Yoo, in which the Ninth Circuit held that John Yoo was protected by qualified immunity from liability over his role in Padilla's mistreatment. Steve has a post at Lawfare discussing the problems with the court's analysis over whether it was clearly established that the mistreatment Padilla suffered was torture or "merely" cruel, inhumane, or degrading treatment (see also Jonathan Hafetz on the subject).

Here's my question: Why does it matter how we label the treatment? The question should be whether it was clearly established from 2001-03 that the conduct to which Padilla was subject shocked the conscience so as to violate substantive due process. What conclusory characterization--torture, CIDT, or ishkebible-- is besides the point of whether the Fifth Amendment was, in fact, violated. The focus on labels and not on behvaior allows the court to elide the real question.

Bias in ABA judicial ratings

I would like to highlight a forthcoming article in Political Research Quarterly entitled "Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees." In the article Susan Smelcer of Emory, Amy Steigerwalt of Georgia State and Rich Vining of the University of Georgia (a Georgia Trifecta) find systematic liberal bias in the evaluations of judicial nominees by the ABA.  The research was featured in an New York Times article a few years ago and now it has gone through the peer review process. 

Of course it is controversial, and is already the subject of a rebuttal in the January 2012 issue of Judiciature. Take a look and decide.

The politics of apolitical TV

We've been watching and enjoying the new HBO comedy Veep, which follows the exploits of a marginalized, marginally competent woman VP. The show draws a lot of humor from the way the titular Veep flails away, constantly asking her secretary whether the President has called (he never has), and working (not very well) on two token, dead-end policy items the President has given to her--"clean" jobs (and the issue is whether to put someone from the oil industry on the VP's clean-jobs commission) and filibuster reform.

The show (and commenters on the show) have made much of the show's supposedly apolitical approach. The President never is seen, no one mentions which party is in power, and the policy goals discussed are supposed to be non-partisan. This is at least supposed to be a far cry from The West Wing, which featured what I once called a "Democratic president that real Democrats only dream about-imagine a President with Bill Clinton's political skills, Michael Dukakis' policy goals, Jimmy Carter's commitment to monogamy, and Daniel Patrick Moynihan's intellect."

So does the show succeed at being apolitical?

Some Republicans initially complained that the show was another example of Democrats making fun of Sarah Palin, although that is only true if all depictions of an in-over-her-head female politician now are parodies of Sarah Palin. That we now associate this sort of character with Palin just shows the difficulty of political parody--truth has surpassed satire (part of why I actually find it hard to watch The Daily Show at times).

But filibuster reform is not an apolitical issue, at least in the current environment. It is something strongly wished for by many liberals and progressives, particularly among academics and political commentators, who view the Senate as a defective, unrepresentative, anti-democratic institution made worse by the costless, silent, and routine filibuster that is functionally an all-purpose super-majority requirement. Now that might be a product of momentary political majorities and President Romney and a 52-seat Republican Senate would be pushing the elimination of the filibuster as a matter of patriotic duty (actually, this may be a virtual 2013 certainty if events unfold that way). But the notion that the Senate needs reforming, given its unrepresentative nature, is a decidedly lefty view right now.

The last point is to consider what it says that filibuster reform is one of the symbolic-but-pointless issues that a President would dump on a marginalized VP. It makes sense in one way, in that it has no chance of going anywhere, so it is precisely the no-chance symbolism you pawn off. On the other hand, knowing the reality of routine filibusters and what they have wrought shows this as a genuine problem with an actually attainable solution; one would hope a President would get behind this as a real issue in the interest of his political agenda. But from a show's standpoint, it is the type of procedural/technical concern about which the public does not care--and thus neither would the President.

Constitutionality and political workability

Ronald Dworkin has an essay in the New York Review of Books arguing for the constitutionality of the individual mandate and ACA generally (H/T: Harold Pollack). Pollack flags the key paragraph, in which Dworkin twice makes the point that the final version of ACA--Private insurance, no discrimination, and the individual mandate--was the only solution that was politically possible or workable in the current legislative environment.

Many ACA opponents (including my friend and colleague Elizabeth Foley) insist repeatedly that the mandate is unconstitutional, but it would be perfectly fine (as a constitutional matter) to impose Medicare for everyone. But single payer was not  politically viable, not only because of the keep-government-out-of-my-Medicare folks, but also because of the business interests of the insurance industry. So Congress came up with something that was politically possible, that achieves the same result while imposing no greater burden on any individual and not (at least on any of the arguments actually made in court) infringing on any constitutional liberty.

The question is how that political reality should cut in the constitutional analysis. Dworkin's point (which is something that had been circling around) is that invalidating the individual mandate is to say that, under the Constitution, Congress lacks the basic affirmative power to handle modern situations. The point of McCulloch and rational-basis review is that the courts should defer to Congress on choice of means, that Congress can best determine the best or most appropriate way to address a problem that is within its legislative authority. It seems to me that one of the factors Congress should be able to consider, and to which courts should defer, is the political landscape and what can be enacted given preferences of the public and the members of Congress.

DOJ responds

Here is the letter that Judge Smith demanded from the Department of Justice following President Obama's comments about the Supreme Court reviewing ACA (H/T: LawCourts Listserv). I think Holder did what he could with, basically saying "of course courts exercise judicial review, but courts also regularly recognize presumptions of constitutionality and deference to the political branches, and the President did not say otherwise." That last part may be open to some debate, at least until the President's "clarification. In any event, I'm not sure that should matter, since the President ought to be clear to put forward a constitutional vision that suggests a minimized role for the courts.

Hopefully this all goes away. Robin and I were interviewed for a radio piece on this mess (Prawfs gets MSM attention!) and one question was whether we will see this happen again or whether this was a one-off thing. Robin's answer (with which I agree) is that judges are usually good at self-restraint. I would add that I doubt a bunch of federal judges want to get into it with a sitting President.

Your ox or mine?

First, I strongly disagree with President Obama's suggestion yesterday that it would be inappropriate for SCOTUS to strike down ACA. Other than being (in my opinion) wrong as a matter of substantive Commerce Clause doctrine, it is an entirely proper exercise of judicial review.

But we're getting into Through the Looking Glass stuff now. Congressional Republicans have accused the President of trying to intimidate the Court (Lamar Smith); insisting that a decision invalidating the law would "not be an activist court -- that will be a court following the Constitution" (Mit Romney); and insisting that "[j]udicial activism or restraint is not measured by which side wins but by whether the Court correctly applied the law." (Orrin Hatch). And, of course, we know the difference--striking down ACA is correctly applying the law, while, say, invalidating bans on sodomy is activism. There could not be a better illustration than Hatch's comment that judicial activism is an utterly empty and meaningless epithet. It really depends on whose ox is being gored--if you agree with a decision (or in this case, what many people expect to be the decision, it's correctly following and applying the Constitution, if you disagree, it's activism.

[Update: I missed this, but apparently Sen. Kyl actually insisted that a decision upholding ACA would be activist. I am sure no one in the press asked him to explain that one or what he possibly could have said.]

Congressional Republicans have spent fifty years decrying as activist Supreme Court decisions that just happened (shocked! shocked!) to come out contrary to Republican policy preferences. They have spent thirty years threatening to strip federal courts of jurisdiction to prevent them from making decisions (that Republicans presumably will not like) on certain issues. They have talked, at least informally, about impeaching judges or at the very least statutorily reminding judges of the threat of impeachment. And it was a Republican presidential candidate who, just a few months ago, was running on a platform of ignoring judicial interpretations and decrees and calling federal judges before Congress to explain and justify their decisions.

Again, Obama was flat wrong (and probably politically unwise and somewhat tone-deaf) in what he did. But the President preemptively challenging an expected result--without calling for anyone to disregard the judgment or calling for anyone's impeachment--is intimidation? Given the history of political debates over the Court since the Warren Era, this is just bizarre.

What do the ACA arguments say about cameras in SCOTUS?

Everyone was aflutter last week over the three days of arguments on the various issues with ACA, in which the Court modified its usual rules by releasing same-day audio and trnascripts. It created quite a lot of what Andy Koppelman calls "Kremlinology," with everyone trying to read tea leaves based on who asked what questions and how, how many words each justice directed at each side (empirical studies suggest that individual justices ask more questions of the side they ultimately rule against), and what conclusions people reached depending on whether they read the transcript or listened to the argument.

Dahlia Lithwick argues that the anti-camera arguments seem "awfully thin" after this week. The justices arguably spent much of the argument showboating, talking in news-ready snippets and soundbites, rolling out cable news tropes and clever phrases (broccoli, Cornhusker kickback, severabiity review as cruel-and-unusual punishment), and spending little time discussing actual law. In other words, doing all the things they say would come about if cameras were allowed.

Then RNC released an anti-Obama ad in which it used audio of Donald Verelli's argument opening (in which stumbled a bit and paused to take a drink) to show that ACA is invalid because the administration's own advocate had a hard time defending it. It turns out the ad doctored the audio, making his water pause last about 20 seconds. Tom Goldstein and Amy Howe suggest this will set back efforts at getting cameras into the Court, or getting greater Court transparency generally, illustrating the potential for recordings to be distorted and misused, not only as it was by the RNC, but also against the justices themselves.

Goldstein is probably descriptively correct that this may become Exhibit A in the anti-camera arguments going forward. But Lithwick is right that this all makes no sense. As I've argued repeatedly, the very problems the justices want to avoid by excluding cameras come about anyway. And perhaps those problems all were on display this week (still working my way through the transcript). No one has ever come up with an argument for why cameras make the supposed problems worse than audio and transcripts. And it is hard to imagine the RNC ad would be more or less effective (or more or less distorted) if it had video as well as audio to work with.

Social Media and the Kony 2012 Campaign

By now, you all (likely) will have come across the Kony 2012 campaign. Sponsored by a US-based charity group, Invisible Children, this campaign aims to raise public awareness about the Lord’s Resistance Army (LRA) and its leader, Joseph Kony, through a 30 minute video that has gone viral – receiving upwards of 60 million hits (and growing fast). This documentary video has caught the attention of a star-studded cast, including Justin Bieber, George Clooney, and Lady Gaga. Kony remains at large, despite having been indicted by the International Criminal Court (ICC) in 2005 and notwithstanding the weakening of the LRA. (A rebel group, the LRA has inflicted mass atrocities in Northern Uganda, but for several years now has fled the country). Kony is charged with an array of war crimes and crimes against humanity. The Kony 2012 campaign encourages his capture and supports the intervention of Ugandan
government armed forces (assisted by American special-ops). Ever mobile, Kony is no longer in Uganda, but likely in the Central African Republic. The brutal entanglement of children in the LRA, as combatants, sex slaves, and domestic helpers, has been central to the reach of the Kony 2012 campaign and its attendant calls for support.

This campaign demonstrates the power of social media to mobilize and raise awareness. But this campaign also demonstrates the ability of social media to essentialize, sensationalize, and reductively simplify. For starters, in addition to the horrors inflicted by the LRA, the government of Uganda has also been responsible for human rights abuses in the country, including massive displacement of the local population, and also outside the country. Second, in calling for armed action, the video exhorts the very militarization that, in turn, has plagued Northern Uganda and Southern Sudan for decades already. The process of peace and justice in Northern Uganda is painstakingly complex – at the national level amnesties have played a key role – and criminal prosecutions are far from a self-evident solution, especially at the ICC. The problem of child soldiering is much more complex than the video portrays. The saving grace of international humanitarianism can only go so far – the vast majority of LRA child soldiers, after all, exited the LRA not by humanitarian rescue but, instead, by escaping or abandoning the group. Reintegration, moreover, needs to occur locally. Criminal prosecutions of a handful of recruiters are not a cure-all. To be sure, the LRA has relied on brutal abduction of children. World-wide, however, and including elsewhere in Africa, a majority of child soldiers demonstrate some initiative in coming forward and enlisting in fighting forces. Child soldiering is a global phenomenon, not just an African phenomenon – the majority of child soldiers in fact are not on the African continent. Nor are the majority of child soldiers young children – most are adolescents, often older adolescents; approximately 40% are girls; some child soldiers are implicated in grievous acts of atrocity, at times against other children.

The best way to prevent child soldiering is to understand it as a composite of practices, not as a singular practice to be generalized from the LRA. A better way to reintegrate former child soldiers, and attend to restorative needs, is to humanize former child soldiers, not present them passively as devastated mindless victims or deranged cold-blooded automatons programmed to kill. Oxford University Press recently published my book, Reimagining Child Soldiers in International Law and Policy, which I wrote to advance a nuanced conversation so as to meaningfully improve preventative and rehabilitative efforts (youtube summary here). But nuanced conversations tend to lack catchy sound-bites. Does Invisible Children, then, have it right – put a simple image forward, boldly through #StopKony, and then follow up, as it does, with some texture in responsive, albeit at times defensive, posts
that parry criticism, concern, and commentary?

Speech means never having to say you're sorry

At least not for the ideas you expressed. Rush Limbaugh is finding that his "apology" is not having the expected traction--several conservative commentators and congressional leaders have called on him to make a better apology (one that is not just for his "choice of words") and some advertisers are continuing to pull support. Even worse, Peter Gabriel has withdrawn permission for his "Sledgehammer" to be used on the show. (Update: Amanda Marcotte at Slate argues that Limbaugh's apology didn't take because he didn't really apologize and probably had no intention of apologizing because he meant what he said, just not the way he said it).

Then there is actress Patricia Heaton, apparently well-known as an anti-choice conservative, who took to Twitter with a string of beauties directed at Sandra Fluke (some screen-captured here), including:

• "Hey GTown Gal: How about only having sex on Wednesday? (Hump day!)," Heaton wrote in a tweet last Thursday."

• "Hey G-Town Gal: turn your underwear inside out! Then u only have to do laundry every 2 weeks—saves on detergent & trips to Laundromat!"

•"If your parents have to pay for your birth control, maybe they should get a say in who u sleep with. Instant birth control."

Heaton initially shut down her Twitter account, then came back on with the following: "I didn't treat her with respect and I'm sorry. I was wrong. Mea Culpa."

This is slightly better than Limbaugh's apology, which acknowledges that the problem is more than word choice. But I repeat my point from my earlier post: What is she apologizing for and why? This is not something she did without thinking or on the spur of the moment. This was multiple tweets spread out over the course of a day, all of which required intentionality to act, as well as some thought and creativity, since she at least tried to be funny or clever in her insults. Did it never occur to her during any of her sessions at the keyoad that she was not treating Fluke with respect? The timing suggests she is not sorry about what she said or for disrespecting Fluke, but because a lot of people got angry at her for disrespecting Fluke.

More importantly, I want people to own their outrageous and offensive speech. If you really believe that a woman who uses birth control is per se promiscuous, say so. If you really believe any 20-something single woman who is sexually active is immoral, say so. And stick to your original words, which more likely reflect your true feelings and beliefs. Don't back off what you said, especially where what you said was not in the heat of the moment and thus not a product of a momentary lapse of judgment or reason. Especially since, as the screen-capture shows, words on the internet may be forever. Speak out, be as provacative or obnoxious as you want, and handle the consequences.

Does this coarsen public discourse in the short run? Perhaps. But perhaps voices such as Heaton's or Limbaugh's will eventually fall silent when they generate sufficient negative blowback or reaction from other speakers.

Or not. Monday, Limbaugh was back to blaming Democrats for manipulating Fluke and for twisting his comments to fit their recurring theme that "Republicans hate women." In other words, Limbaugh does not understand how, other than through political bias, his comments could be seen as sexist. That is not the sound of someone who recognizes that he did something inappropriate. If so, then don't bother apologizing and don't bother pretending that you recognize you did something wrong when you obviously don't believe  you did.

Four Questions

It should come as no surprise to regular readers that I am not a fan of Rush Limbaugh. But with Pesach fast approaching, I must ask: Why is this rant different from all other rants?

1) Was what Limbaugh said to and about Sandra Fluke really beyond the pale of what Limbaugh says every day and has said every day for years? Again, I found it reprehensible, but I find pretty much everything he says reprehensible.

2) Why are companies that have been advertising on his show for two decades suddenly fleeing and is it somewhat pandering of them to do so? In other words,  you have supported this bombastic demogoguery for 20 years, why now)?

3) Why did Limbaugh feel the need to "apologize" (danger quotes intentional)? He never apologizes otherwise. But this also may be that I simply hate apologies over political speech. I would much prefer that those who engage in outrageous or offensive speech (on both sides of the political spectrum) stick to their guns. They obviously believe it or they wouldn't have said it, especially when it is in writing or, as with Limbaugh, he repeats it multiple times (according to one report, in three days Limbaugh referred to the amount of sex Fluke was having 23 times). I would rather know what someone really believes and make my judgments about them and their ideas accordingly. (Update: Amanda Marcotte at Slate argues that Limbaugh's apology didn't take because he didn't really apologize and probably had no intention of apologizing because he meant what he said, just not the way he said it).

4) Limbaugh apologized only for using the word slut; he did not apologize for questioning Sandra Fluke's character, behavior, morality, or sexuality. But usually that is enough to quell the storm; why not now?

I want my L[aw] TV

Tonight at 9 p.m., HBO debuts The Loving Story, a documentary on Mildred and Richard Loving, whose interracial marriage provided the basis for SCOTUS's decision striking down anti-miscegination laws in Loving v. Virginia (still at the top of the list of appropriate SCOTUS case names). Here is a review of the program by Time's James Poniewozik, although I have no idea how a law-trained audience may view the show. This program is especially timely, premiering as it does: 1) on Valentine's Day; 2) on the heels of the Ninth Circuit decision on the constitutionality of Prop 8 in Perry; and 3) on the closer heels of the statutory recognition of same-sex marriage in Washington.

A fun parlor game for law-and-policy geeks is to argue over what legal issues we will look back on 50 years from now and say  "how could that have possibly been up for debate?". I believe same-sex marriage will be one such issue--much as we now view anti-miscegination laws.

A preview of the show after the jump. I may have more to say after I've watched it.

 

Preview - The Loving Story

 

Bargaining Your Way Out of War Crimes

Writing book reviews may be a fading fad, but I’ve agreed to do one for Criminal Law and Philosophy on Mark Freeman’s Necessary Evils: Amnesties and the Search for Justice. Freeman argues that the push in international criminal law towards banning the amnesty, although certainly understandable, comes with some costs and, hence, isn’t self-evident. According to Freeman, some room should be left for human rights abusers to bargain away their criminal liability in exchange for peace. Ultimately, Freeman sets a very high bar on the permissibility of such bargains. His bar is so high, and his conditions so complex/onerous, that in practice under his own framework the amnesty may never be possible. In any event, Freeman’s position is an unorthodox one for an international lawyer to take. In this regard, his book is brave indeed. To be sure, political scientists routinely embrace the amnesty as a means to do business. But for lawyers, steeped in retributivist ethics, the cost of doing such business may be too much to bear. Freeman frequently turns to Dan Markel’s work in order to offer theoretical background on interplay between the deontological need to punish and the utilitarian reality that sometimes non-punishment may serve a greater good. That said, these questions are far from theoretical. In September 2011, Uganda’s Constitutional Court respected an amnesty given domestically to Col. Thomas Kwoyelo, who is among the highest level leaders of the rebel Lords’ Resistance Army (LRA), notorious for massive human rights abuses, wide-scale rape, and abduction of child soldiers. The Court ordered his release; the Court of Appeals affirmed in November; but Kwoyelo is still in custody. Kwoyelo himself had entered LRA as a teenage child soldier. In response to international pressure, a couple of years ago Uganda established an International Crimes Division in its domestic courts to prosecute LRA fighters. Kwoyelo was the first person brought to trial. These fighters, like Kwoyelo, had previously been granted an amnesty (pursuant to legislation adopted in 2000) in exchange for their renunciation of violence. The debate over Kyowelo’s amnesty therefore involves tension within branches of the same state: Uganda’s constitutional imperatives to equal treatment of its citizens, on the one hand, and Uganda’s prosecutorial obligations to punish perpetrators of serious international crimes, on the other. One angle to the amnesty debate that I have not seen much of in the literature, and which I hope to explore at greater length in the review, is how reneging on an amnesty previously granted may in and of itself amount to a rule of law denial, thereby imperiling constitutional legitimacy. In this regard, respecting a painful and unattractive bargain may signal a deontological commitment to promise and predictability. Any thoughts on how upholding ugly bargains may prettify a new constitutional order? How scuttling them, however attractive in the short term, may come to blight constitutional credibility?

Recording police, redux

Dahlia Lithwick has a story and preparations in Chicago for the G-8 Summit this spring and apparent plans by the Chicago police to prevent protesters and journalists from recording the events, particularly any arrests that occur. As I've discussed previously, Illinois has a strict two-way consent law, which requires that all parties consent to the electronic recording of any conversation or actions. And unlike most states, Illinois does not except recordings of public officials performing their public functions in public from the protections of the law, nor does it limit the law only to situations in which the person recorded has a legitimate expectation of privacy (which a public official performing public tasks on the public streets should not have). The state is infamously prosecuting two people who recorded police misconduct. At the same time, a constitutional challenge to the law brought by the ACLU was dismissed in the district and now is pending before the Seventh Circuit. Former GuestPrawf Eric Johnson and Jonathan Turley both reported on last fall's oral argument, in which Judge Posner seemed (surprisingly) dubious towards the ACLU's argument that there is a constitutional right to electronically record events on the street, including this exchange:

“Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”

“Is that a bad thing, your honor?”

“Yes, it is a bad thing. There is such a thing as privacy.”

Hopefully the court will resolve the issue before the summit, when things inevitably (and unfortunately) will turn ugly.

Rubio, Republicans, and immigration

My FIU colleague Ediberto Roman has a piece at The Huffington Post discussing a recent speech by Florida Sen. Marco Rubio on the subject of immigration, in which Rubio, while not endorsing the DREAM Act, called for changes in Republican rhetoric and discussion on the topic. Rubio apparently is on the short list for Vice President (I have not been paying attention), so Ediberto is even more enthusiastic that a top GOP leader would bring a different voice.

Ediberto has often stated his belief that Latino and Hispanic voters may not support President Obama because he has not done enough on immigration. The key, of course, is finding a Republican alternative. Perhaps Rubio, even if only the # 2 on the ticket, would provide that.

Sometimes lower courts are not paying attention

One point I have been making repeatedly in my jurisdictionality scholarship (here and in two forthcoming pieces) is that the Supreme Court is working hard to drop hints to lower courts that what is truly jurisdictional is extremely narrow and what is merits is comparatively broad. Lower courts are mostly getting it.

But not always, unfortunately, as this Fifth Circuit case demonstrates. (H/T: Scott Dodson).

The Miller Act provides a cause of action for subcontractors to recover for unpaid work on federal construction projects; the suit is bought to recover on the payment bond, which the general contractor must furnish. In this case, the Fifth Circuit held that the bond requirement goes to the district court's adjudicative jurisdiction and that because no bond was provided, the district court lacked subject matter jurisdiction over the plaintiff's claim.

This cannot be right, both as a normative matter and in light of SCOTUS's recent jurisdictionality jurisprudence (which the Fifth Circuit did not even bother to cite or discuss). As to the latter, it is hard to imagine that if registration of a copyright as a prerequisite to a copyright action is not jurisdictional, then the bond requirement cannot be. can be jurisdictional. As to the former, the bond requirement obviously is going to a merits element, since the statute provides for "a civil action on the payment bond for the amount unpaid at the time the civil action is brought. Obviously, a claim to recover on a payment bond cannot succeed if there is no payment bond. But that defect is in the claim as defined in the statute; it does not affect the court's jurisdiction. Ironically, the court asserted early in the opinion that there is § 1331 jurisdiction "when a plaintiff[ ] set[s] forth allegations ‘founded on a claim or right arising under the Constitution, treaties or laws of the United States.’” That is correct. And it is unaffected by any problems with that claim. Given that, there is no way the bond requirement, contained in the cause-of-action-creating provision, is jurisdictional.

The opinion could be read not as making the bond requirement jurisdictional, but rather as looking to the "requirement" (not always taken seriously) that any federal claim be "substantial" in order for § 1331 to be satisfied. Because the Miller Act claim had a "fatal defect"--the absence of a payment bond--§ 1331 was not satisfied. In other words, the Miller Act claim failed on its merits, but that failure made it insubstantial and thus deprived the court of jurisdiction. I have argued that the substantiality doctrine is wrong and unnecessary. But even accepting the doctrine, the court's analysis was still wrong. An "insubstantial" claim is one that is frivolous or somehow unconnected to the rest of the case and asserted solely to manufacture federal jurisdiction. A case does not become "insubstantial" merely because of a defect in the claim. If that were enough, then every 12(b)(6) dismissal would become a 12(b)(1) dismissal.

Interestingly, this actually is a case in which the characterization made more than a formalist difference. After the district court dismissed the Miller Act claim because of the absence of a bond, it went on to resolve several state law claims, asserting supplemental jurisdiction. And the district court believed it could do this because it understood the dismissal of the Miller Act claim as being on the merits, giving it discretion to retain supplemental claims. In holding that the failure of the federal claim was a failure of federal-question jurisdiction, the court of appeals undid that. A district court cannot assert supplemental jurisdiction over state-law claims unless it at some point had jurisdiction over some federal claim. Because the district court never had jurisdiction over any federal claim, it never had federal jurisdiction and thus cannot assert supplemental jurisdiction.

Just a bad decision all around.

Is it recess yet?

In a recent post on Concurring Opinions, Gerard Magliocca asks, "How Long is a Senate Recess?"  The question matters because the answer helps determine when a president may make a “recess appointment.”  Gerard points out that the Justice Department has said that the Senate must be adjourned for three days before it is recessed.  As Gerard notes, though, no constitutional text establishes that as the required period.  Nevertheless, the three-day standard now appears to be the norm, as evidenced by recent efforts by the Senate to prevent a three-day recess by maintaining pro forma sessions

What’s interesting to me, though, is whether the entire premise of recess appointments relies on a misinterpretation of the Constitution.  The specific constitutional language states that, "The President shall have Power to fill up all Vacancies that many happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  To me, this language suggests that the vacancy must occur – must be created – during the recess.  After all, if I say, “The power outage happened during class,” what would be the most likely (and rational) understanding of that sentence?  I do not think it is that the outage occurred before class began and continued into the session.  Nevertheless, that less convincing interpretation rules the day.  The Supreme Court has never heard a case on the subject, as far as I’m aware.  It’s another provision I will point out in the opening days of my Constitutional Law I course this spring, as I discuss our un-litigated Constitution.   

Fabulists and lawyers

Character-and-fitness discussions usually do not make for national, mainstream-media news. But the last two weeks have featured a great deal of discussion about the California Bar application of Stephen Glass, the former journalist and editor at the New Republic who in the late 1990s fabricated all or parts of more than 40 stories. His story was famously depicted in Shattered Glass. The bar committee denied his application (just as the New York Bar committee was expected to do before Glass withdrew his application). A state court rejected the committee's decsion and was affirmed by a divided appeals court; the Supreme Court of California agreed to hear the case and briefing is ongoing. Meanwhile, opinion in the journalism and media community is sharply divided, with some particularly strident opposition from journalists who write about the media and journalism.

There is a close connection between journalism and law. The jobs are similar, as are the skills necessary to practice both and the types of people likely to be attracted to both careers. In particular, both depend on the ability to think, analyze, write, and, above all, tell a story. In their most idealized forms, both trade in "truth." And, for what it's worth, both typically rank fairly low in Gallup polls of respected professions.

I often question the character scrutiny that bar applicants go through, because much of it has little to do with the ability to practice law ethically and properly. But this case can feel different. Lawyer jokes (e.g., since when does lying disqualify someone from becoming a lawyer?) aside, an applicant who in the past has made up entire people, companies, organizations, and events--and documents and evidence supporting those--while working in an industry that is about telling the truth may not be trusted not to similarly fabricate testimony or evidence in litigation. The Bar Committee may be especially wary because what journalists do is so similar to what lawyers do.  And while it is easy to say we should give him a second chance because if he tries this again he will eventually be caught, it would be impossible to measure the systemic and individual damage his actions would cause in the interim--damage likely far greater than the reputational ding Glass caused the New Republic (whose owner supports Glass' application and has acknowledged that the scandal raised TNR's profile) and the institution of journalism.

One interesting question is whether we can read tea leaves in the Supreme Court's decision to take the case. Do state supreme courts regularly take cases where the lower court admitted the person to the Bar? Or does agreeing to take the case suggest a likely reversal and rejection of his application?

Statutes of limitations, child sexual assault, and asking the wrong question

Child sexual assault has become the hot topic in the sports-and-law overlap, with allegations against several college football and basketball coaches, AAU officials, and most recently, a Hall of Fame sports writer Bill Conlin of the Philadelphia Daily News. One unifying theme is that many of these cases cannot be prosecuted because the statute of limitations has run on most of these cases (for example, Conlin's alleged assaults all occurred in the 1970s). So a frequently asked question--I was asked it in a radio interview last week and Slate's Jessica Grose raises it again--is why we have statutes of limitations for child sexual assault cases.

But I think that is the wrong question to ask.

On one hand, the answer is easy. We have statutes of limitations in sexual abuse cases for the same reasons we have statutes of limitations for every other crime (except murder, more on that below): Evidence and people disappear and memories fade or change or become distorted, thus we worry about the reliability of any result based on such stale evidence. Jessica interviews my former colleague Aya Gruber (now at Colorado), who argues that this is especially true in a case such as child sexual assault (and perhaps all sexual assault), where the key--and sometimes only--evidence is the victim's testimony. We also believe in a right to repose, or "rest easy," that at some point a person should be able to no longer fear prosecution and get on with his life and his affairs.

Murder long has not been subject to statutes of limitations because society has made a value judgment--murder is the most heinous crime, the ultimate criminal wrong, and that heinousness outweighs the procedural concerns for unreliable judgments and the substantive concerns for alleged perpetrator's right to repose. A good argument can be made that child sexual assault is as or more heinous than murder,^* thus we should strike the same balance. And that is what many states have done, eliminating limitations (as some states have done) or making them extraordinarily long and/or tolling them until the child reaches majority. For example, Pennsylvania now can prosecute a case until the child victim turns 50, meaning a limitations period of anywhere from 33 to 50 years, depending on the child's age at the time of the assault. An even better argument can be made that the old limitations periods in effect in the '70s, '80s, and '90s were woefully short (Pennsylvania was 5 years for anything involving penetration and 2 years for inappropriate touching) and based on a fundamental misunderstanding of the nature of the crime and the psychology of how child victims respond.^**

But thinking about whether there should be a statute of limitations for child sexual assault, or how long it should be, is the wrong question in considering the prosecution or non-prosecution of the current cases of interest. We are stuck with the reality that there is a statute of limitations for these crimes, that at the time of most of most of these crimes that limitations period was really short, and therefore the statutes have run on these cases and prosecution is barred. In 2003, SCOTUS held in Stogner v. California that the prohibition on ex post facto laws prohibited states from applying newly lenghtened limitations periods to crimes that occurred under an older limitations and that now are time-barred under that former limitations period. The 5-4 majority placed an extended limitations period in the second category, as a law that makes a crime greater than it was at the time of its commission. Most states statutorily avoid any possible ex post facto concerns by only applying these newly extended periods prospectively. Thus, what prevents prosecution of Sandusky, Conlin, et al., is not the statute of limiattions as much as the Constitution's prohibition on ex post facto laws.

    ^* I distinctly remember a class session in Stephen Presser's American Legal History in which we debated whether adult rape was more heinous than murder, with a majority of the class believing it was, because the victim lives with the effects of the crime forever. We can multiply that for child victims.

    ^** Although what is interesting about Conlin's case is that many of the victims went to their parents and some of the parents confronted Conlin, who allegedly cried when confronted. But no one, not even the adults, ever went to the police.

Losing ideas amid the noise

Newt Gingrich has surrounded his court plans with so much ideological noise, and has been met with so much noise about in response, mostly about how Gingrich is trampling over an independent judiciary. Unfortunately, the noise in both directions ignores the likely constitutional legitimacy--if not necessarily policy wisdom--of some of what he is talking about.

Gingrich is fundamentally correct that a president could disagree with judicial decisions and could act on that different understanding--in other words, he could ignore what the Court has said in its opinions. The president can use that different understanding in many contexts--in making enforcement choices, in enacting regulations and other executive-branch rulemaking, and in proposing, supporting, and signing legislation. And Congress could do the same. In Fed Courts this semester, we spent time discussing the Congressional Accountability for Judicial Activism Act (proposed in 2005, it never went anywhere), which would have allowed Congress to override Supreme Court decisions invalidating federal legislation by 2/3 supermajority in both houses. It seems to me this would be a valid congressional practice, a position the entire class unanimously and loudly rejected. But it seems uncontroversial that Congress and the president could together reenact (and by just simple majorities) legislation identical to the one just invalidated by the Court, which would be an implicit override of the Court's decision. So what is different about a formally adopted congressional statement rejecting the Court's decision?

Contrary to much of the criticism, this is not about judicial independence; none of this affects or inhibits judicial power or discretion. Federal judges are not threatened in any way--we need not talk about impeachment or jurisdiction stripping or defunding courts. Nor are judges hampered in their power to decide cases according to their best constitutional judgment, since the Court need not accept or recognize the overriding legislation or the contrary constitutional vision. The Court could keep invalidating the re-enacted law.

What it sets up instead is a constitutional conversation among the branches and, presuambly, an eventual resolution when some branch alters its constitutional understanding. Maybe it will be Congress, which gives up if the Court keeps striking that legislation down. Maybe it will be the Court, which eventually gives the reenacted (or overriding) legislation its constitutional blessing.

Gingrich somewhat crassly argues that the winning position will be whichever one gets the support of two branches. Andrew Cohen of The Atlantic calls this a "shuddering vision" of separation of powers reduced to Rock-Paper-Scissors. But  this seems to be precisely how separation of powers and departmentalism are supposed to work--out of the conflict and competition among the branches emerges some constitutional consensus. This is admittedly ugly to watch in practice and could result in some risky stalemates. It also may work somewhat as Gingrich suggests, with the third branch taking sides to determine the winner: Imagine the Court invalidates Statute X and Congress attempts to override the decision by enacting Statute Y, which is identical to Statute X, containing a finding of how the Court's prior decision was wrong; the success of that override effort would depend on which side the president takes and whether he will sign and enforce the overriding legislation. It also may depend on where the public comes out on the issue and whether one side or the other may face electoral advantages or disadvantages for their role in any stalemate.

Things get somewhat trickier if the executive's differing constitutional vision leads him to either: 1) ignore a judgment and order in a given case, such as an injunction prohibiting enforcing of a statute (this is the line that many departmentalists draw) or 2) make arguments in court that are premised on disagreement with controlling precedent (this is the fine line the Justice Department has tried to walk in litigating DOMA). Gingrich has suggested a real willingness to ignore specific orders in specific cases, such as one invalidating bans on same-sex marriage or limiting the president's power over detainees. Here the inter-branch conflict becomes more concrete. He is right that the president can ignore a judicial order (as can any other litigant); he just runs the risk of being held in contempt for doing so. Then we see whether the court would hold the president (or the AG or some other top executive official) in contempt and, if it did, whether and how that order would be enforced. Similarly, DOJ attorneys can make constitutional arguments that depart from or ignore controlling precedent; they just risk the court's sanctioning power (again subject to questions of enforcement). All his sets up a conflict and competition of ideas between the branches that will end when one branch alters its constitutional view (perhaps because the third branch or the People stepped into the mix on one side).

Gingrich critics, such as Cohen, assume that any of these inter-branch conflicts are dangerous, that the Constitution (properly understood) must prevent them, and thus a constitutional vision that would allow them must be wrong. To be sure, the conflict is potentially dangerous (at least if it occurred too often and went on too long); it also is ugly to watch, and should be avoided. But critics go wrong by misidentifying the origins of that avoidance; it comes not from the Constitution, but from sub-constitutional politics and inter-branch comity that have carried the day as a matter of history.

What makes Gingrich's anti-court diatribes troubling is his rhetoric. His starting point is that federal judges are out-of-control dictators seeking to impose an un-American vision who must be stopped, rather than this being a product of differing good-faith constitutional visions. His rhetoric then justifies exercise of this power, likely far more frequently than has been done historically. And that, ultimately, is where the criticism should lie: Not that Gingrich insists that the Constitution allows for these sorts of inter-branch conflicts over constitutional meaning, but that he seems to be itching to get into it with federal judges.

Update: Eric Posner makes some similar points, including how the important ideas--which is basically a simple rejection of judicial supremacy--are lost in Gingrich's bombast.

Breaking the Net

Mark Lemley, David Post, and Dave Levine have an excellent article in the Stanford Law Review Online, Don't Break the Internet. It explains why proposed legislation, such as SOPA and PROTECT IP, is so badly-designed and pernicious. It's not quite clear what is happening with SOPA, but it appears to be scheduled for mark-up this week. SOPA has, ironically, generated some highly thoughtful writing and commentary - I recently read pieces by Marvin Ammori, Zach Carter, Rebecca MacKinnon / Ivan Sigal, and Rob Fischer.

There are two additional, disturbing developments. First, the public choice problems that Jessica Litman identifies with copyright legislation more generally are manifestly evident in SOPA: Rep. Lamar Smith, the SOPA sponsor, gets more campaign donations from the TV / movie / music industries than any other source. He's not the only one. These bills are rent-seeking by politically powerful industries; those campaign donations are hardly altruistic. The 99% - the people who use the Internet - don't get a seat at the bargaining table when these bills are drafted, negotiated, and pushed forward. 

Second, representatives such as Mel Watt and Maxine Waters have not only admitted to ignorance about how the Internet works, but have been proud of that fact. They've been dismissive of technical experts such as Vint Cerf - he's only the father of TCP/IP - and folks such as Steve King of Iowa can't even be bothered to pay attention to debate over the bill. I don't mind that our Congresspeople are not knowledgeable about every subject they must consider - there are simply too many - but I am both concerned and offended that legislators like Watt and Waters are proud of being fools. This is what breeds inattention to serious cybersecurity problems while lawmakers freak out over terrorists on Twitter. (If I could have one wish for Christmas, it would be that every terrorist would use Twitter. The number of Navy SEALs following them would be... sizeable.) It is worrisome when our lawmakers not only don't know how their proposals will affect the most important communications platform in human history, but overtly don't care. Ignorance is not bliss, it is embarrassment.

Cross-posted at Info/Law.

Bullshit, judicial activism, and running against the courts

A few thoughts, piggybacking on Paul's post on Newt Gingrich and bullshit (and I share most of his views about Gingrich as a walking collection of buzzwords) as well as this post from Al Brophy on Gingrich's (ahistorical) focus on the federal courts as his new electoral straw man. A couple of thoughts.

First, I wonder if "bullshit" doesn't somehow double back to the concept of hypocrisy. So part of what makes something bullshit is not only that the speaker does not care if it is wrong, but that adherence to the stated idea is situational and inconsistent. That inconsistency demonstrates that the speaker is bullshitting--that he does not care whether what he is saying is true or not For example, Gingrich is so outraged by the work of federal judges that he believes that, as president, he is free to disregard judicial decisions he believes are incorrect. He cites Boumedienne as an example, as well as a hypothetical case invalidating bans on same-sex marriage. But he rejected the idea that President Obama could ignore the Supreme Court if it invalidates ACA's individual mandate. His explanation? The president's power to do this is limited to "extraordinary" or "rare circumstances." What is extraordinary? He does not say, although in all likelihood it is when he disagrees with the decision. So this strikes me as a good example of bullshit--the statement of a principle to which the speaker purportedly adheres but to which he will not, in practice, meaninfully adhere, and which he knows he will not meaningfully adhere

Second, Gingrich's attacks are going beyond the argument against the imaginary "judicial dictatorship" or in demand of a "modest" judicial role or a judiciary that "resrict[s] itself in what it is doing." All those buzzwords logically suggest a greater unwillingness to invalidate federal or state legislation. Gingrich is talking about hailing judges before Congress for decisions with which members of Congress "disagree," which appears to apply regardless of which way the courts come out. So he will be just as outraged if SCOTUS upholds the individual mandate. That perhaps would be an example of judicial modesty and deference, but he still disagrees with it. And, under what he is arguing, is the type of judicial misbehavior that warrants being called to the principal's office, if not outright impeachment.

Third, does it seem odd that Gingrich is still running against the federal courts and creeping secularism, when we had eight years of George W. Bush appointments and three years of Senate resistance to Obama appointees? It obviously makes a useful strawman and, as some have suggested, plays well to the Republican primary voters. But it also seems so Culture-War Era 1990s--i.e., back when Gingrich last was in power--and disconnected from the very different realities of 2012 policy concerns.

Fourth, Paul is right that the use of buzzwords from politicians and political candidates is nothing new. And while I believe Gingrich is an extreme case, he is hardly the only one who does this. But I wonder if the reaction to the buzzwords on this subject is a lot like the reaction of many lawyers to movies and TV shows that get the law wrong--we notice these particular buzzwords, and are bothered by them, because our familiarity with these concepts means we understand just how badly they are being mangled in the political discussion.