Tuesday, June 24, 2014
A victory for the rule of law - apparently not
I had to edit this blog because literally as I posted it, the news changed. Monday, Meriam Ibrahim, a Sudanese mother of two young children who was facing a death sentence for adultery for marrying a Christian man and apostasy after refusing to denounce her faith was released by court order. As I previously wrote, her imprisonment violated Sudanese law. Her release was a victory for the rule of law. International pressure influenced this outcome. But the victory was very short (less than 24 hours). The breaking news is that she was rearrested at the airport and was taken into custody along with her two children and husband.
Unfortunately, Ibrahim is only one of many who have suffered (and are suffering) in this way. There are many who endure tremendous human rights violations because of the lack of rule but who do not receive media attention. Ibrahim's story illustrates my previous point - international pressure is one way to help bolster rule of law in developing countries, however, that may not be enough as evidenced by the re-arrest of Ibrahim. Perhaps governmental officials who are threatened with a charge of a crime against humanity for failure to enforce their countries own laws will feel the weight of international shame and act to uphold the rule of law.
Monday, June 23, 2014
What Happened to Chevron Step One?
Today's decision in Utility Air Regulatory Group v. EPA partially sustained and partially invalidated a major greenhouse gas regulation. In doing so, the Court passed up an opportunity to clarify the famous and deceptively familiar deference inquiry established in Chevron, U.S.A. Inc. v. Natural Resources Defense Council. The question is whether Chevron (i) requires, (ii) forbids, or (iii) permits judicial decisions that uphold agency interpretations as not just reasonable, but mandatory. This issue was once thought to have been answered by Chevron Step 1, which seemed to require judicial review for mandatoriness. In UARG, however, the familiar Chevron Step 1 is mostly absent from the scene -- even though the Court expressly considered the possibility that the agency's reading was "compelled," or mandatory.
The best explanation for UARG is that the Court views the traditional Chevron Step 1 inquiry into mandatoriness as optional. In many cases, the only relevant Chevron question is whether the agency has acted reasonably. That is particularly true when the agency reading is invalidated as unreasonable. When upholding agency interpretations, however, it sometimes makes sense for a court to go further and opine that the agency's reading is not just reasonable, but mandatory. The upshot is that what used to be called "Chevron Step 1" has effectively become an optional additional step. In this respect, Chevron resembles modern qualified immunity doctrine, which always asks whether the challenged governmental action was reasonable, but also gives courts discretion to reach the merits.
Goldstein on journalism and SCOTUSBlog's press credential
Deviance, Lawmaking, and the Global Rules of Marathon Swimming
On September 2, 2013, thousands of people stormed the beach in Key West, Florida, to welcome 64-year-old Diana Nyad to shore. News outlets all reported that Nyad's fifth attempt to swim from Cuba to Florida was successful; she swam 110 miles in 53 hours, arriving in Florida with a flotilla including her handlers and medical crew.
But as the public celebrated Nyad's messages on teamwork and perseverance, doubt and cynicism took hold of the people who were in a position to best understand Nyad's feat: The marathon swimming federation. Some of the resentment was ad-hominem and due to bad blood: Nyad has had quite a history with other marathon swimming, including her disparagement of Walter Poenisch, a man who successfully swam the distance (albeit with fins,) and her inaccuracies about swimming around Manhattan many years ago also rubbed people the wrong way. But some of it pertained directly to the swim and the conditions and terms under which it was conducted, and it sparked a lively discussion about the regulation of the sport and its culture, eventually leading to the creation of the Global Rules of Marathon Swimming.
I think an analysis of the marathon swimming community's response to Nyad's swim has a lot to teach us beyond sports law, about the way laws are made in response to perceived deviance.
Halliburton and the State of the Efficient Capital Markets Hypothesis
Very interesting set of opinions in Halliburton v. Erica P. John Fund, Inc. The continuing vitality of the efficient capital markets hypothesis is one of the big issues in the case, and there are numerous cites to law profs, including the law professors' amicus brief and articles by Lynn Stout, Don Langevoort, and James Cox, among others. Both big opinions cite to Lev and de Villiers. A very interesting example of when theory has a big role to play in doctrine.
From Chief Justice Roberts's majority opinion:
Even though the efficient capital markets hypothesis may have“garnered substantial criticism since Basic,” post, at 6 (THOMAS, J., concurring in judgment), Halliburton has not identified the kind of fundamental shift in economic theory that could justify overruling a precedent on the ground that it misunderstood, or has since been overtaken by, economic realities.
From Justice Thomas's concurrence in judgment:
The Court’s first assumption was that “most publicly available information”—including public misstatements—“is reflected in [the] market price” of a security. [Basic, 485 U.S.] at 247. The Court grounded that assumption in “empirical studies” testing a then-nascent economic theory known as the efficient capital markets hypothesis. Id., at 246–247. Specifically, the Court relied upon the “semi-strong” version of that theory, which posits that the average investor cannot earn above-market returns (i.e., “beat the market”) in an efficient market by trading on the basis of publicly available information. See, e.g., Stout, The Mechanisms of Market Inefficiency: An Introduction to the New Finance, 28 J. Corp. L. 635, 640, and n. 24 (2003) (citing Fama, Efficient Capital Markets: A Review of Theory and Empirical Work, 25 J. Finance 383, 388 (1970)). The upshot of the hypothesis is that “the market price of shares traded on well-developed markets [will] reflec[t] all publicly available information, and, hence, any material misrepresentations.” Basic, supra, at 246. At the time of Basic, this version of the efficient capital markets hypothesis was “widely accepted.” See Dunbar & Heller, [Fraud on the Market Meets Behavioral Finance, 31 Del. J. Corporate L. 455, 463–464 (2006)].
This view of market efficiency has since lost its luster. See, e.g., Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 175 (“Doubts about the strength and pervasiveness of market efficiency are much greater today than they were in the mid-1980s”). . . .
JOTWELL: Thornburg on Hadfield and Ryan and information disclosure
The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Gillian K. Hadfield & Dan Ryan, Democracy, Courts, and the Information Order, 54 J. European Sociology 67 (2013), exploring the demoratizing role of civil litigation, particularly discovery and the public value of information disclosure.
Sunday, June 22, 2014
When Is an Anti-Homelessness Ordinance Vague?
"You know those ducks in that lagoon right near Central Park South? That little lake? By any chance, do you happen to know where they go, the ducks, when it gets all frozen over? Do you happen to know, by any chance?"
--Holden Caulfield, in J.D. Salinger, Catcher in the Rye
When I teach 1L criminal law, my preference is to focus not on the sensational cases of serious crime, but on the everyday workings of the system: drugs, property, and various quality of life offenses. As it turns out, teaching the principle of legality, vagueness, and other important basic tenets of criminal legislation becomes apropos and important when using the example of anti-homelessness legislation of various stripes. Many criminal law casebooks include Chicago's ban on loitering and Chicago v. Morales. I like creating a timeline of legislation, showing how cities have consistently tried (and sometimes failed) to find ways to target the poor and get them off the streets. Sit/Lie ordinances are a classic example, as is the latest bout of litigation about this, which involved ordinances that prohibit one from sleeping or living in his or her vehicle.
In Desertrain v. City of Los Angeles, decided a few days ago, the Ninth Circuit tackled a municipal ordinance prohibiting the use of a vehicle “as living quarters either overnight, day-by-day, or otherwise.” The ordinance itself is not new, but it became a convenient enforcement vehicle (pun intended) after an angry "town hall on homelessness" in 2010. As a result of the aggressive enforcement efforts, several folks down on their luck (read: petitioners) tried to craft their behavior to comply with the ordinance as best they understood it: one of them, thinking the ordinance probably applies only to public streets, slept in his car in a church parking lot. Another, in an effort to comply, slept in the street, but kept some items, such as his sleeping bag. Another petitioner, left without work after a head injury, slept in her RV parked in her church. And another one was cited despite not sleeping in his van, just because he stored many items in it.
Saturday, June 21, 2014
Accusations of law prof self-delusion and mendacity; predictable cheering from the bleachers; and a basic point remains missing
Prof. Burk wades cleverly into the debate about JD advantage and law school worth with an angry post about post-law school employment and an analogy to the MLA's case for PhD humanities work.
One argument in the post is unassailably right and important to make: Even if one supposes that a law graduate has succeeded in finding a position for which the JD degree provides a clear advantage in the work required, it does not follow that law school was the right educational path or, relatedly, that the benefits of this JD degree outweighed the costs. Of course. Point well taken.
But what remains missing is a careful engagement with the point made by many, including me, that there are positions which ought to count, for those who purport to do the counting (ATL is one; LST is another), although a credential as a lawyer is not formally required. Insofar as law schools can and will describe these positions and, further, explain why substantial legal training, leading to a JD, provides special skills for these positions, then current and prospective students should evaluate whether the benefits of three years of legal education justify the costs.
Apparently Prof. Burk, channelling the irritated folks who pepper this post with "stick it to the man" comments in a redundant and wholly predictable way, simply declares that law profs and administrators who counsel students to pursue non-traditional jobs -- in a world, I hasten to add, in which the traditional silos between "practicing law" and deploying legal skills in a business setting are weakening -- and who report, happily, when their graduates in fact secure these jobs, are engaging in subterfuge and worse.
Let's talk candidly about the reconfiguration of legal practice, the growing interface among law-business-technology, and the efforts underway to shape business environments to engage law graduates in the performance of management strategy, human resources, regulatory compliance, entrepreneurship -- in short, in spaces where law and legal skills are prudent, and perhaps essential. And, further to the critical point, let's insist that law schools be candid and transparent about exactly which jobs their students land after graduation. Then the marketplace will be in a better position to evaluate the important claim about whether and to what extent X or Y or Z law school is worth it.
Lance Armstrong: Another Civ Pro exam
Judge Wilkins on the District of the District of Columbia addressed a host of motions to dismiss in the False Claims Act and common law fraud lawsuit against Lance Armstrong and others over false statements and claims relating to the Postal Service sponsorship of Armstrong and his team; the case began as a qui tam action by rider Floyd Landis and the United States intervened. For some reason, when sports disputes hit the courts, they carry procedure and jurisdiction problems with them.
If you are looking for a single source for a lot of possible exam issues, this 81-page decision has a little bit of everything: 1) Presentation of outside documents and facts on a motion to dismiss and the possibility of converting a 12(b)(6) to summary judgment; 2) when an action commences under Rule 3 and the validity of Rule 3 in the face of different state law; 3) handling lawsuits against no-longer existing corporate entities; 4) Relation back of a new party's complaint (the U.S., when it intervened) where the relevant statute of limitations provides for relation back; 5) propriety of the manner of service of process; 6) propriety of using 12(b)(6) to assert a statute of limitations defense; and 7) how to plead fraud under FRCP 9(b).
Friday, June 20, 2014
Creating Good Incentives in the Correctional Market
I'm so glad I came across John Pfaff's terrific post about private prisons and their (smaller than you think) contribution to the mass incarceration project. It came just in time; I'm working on a piece that relies on neoliberalism literature AND on public choice economics to argue that focusing on private incarceration companies, as such, doesn't make much sense. First, public prisons are also privatized to a great degree; many of their functions, such as healthcare, food services, transportation, and industry, have long ago moved to private hands. And second, in a hypercapitalist environment, public and private actors alike behave in homo economicus ways, maximizing profit, minimizing cost, and largely not caring about maintaining prison conditions. There's a lot more, and I'll elaborate in a future post.
But the question I have is about solutions. If regulation is something that correctional authorities are able to circumvent, how are we supposed to do it right? How to create minimal incarceration standards? How to incentivize private and public actors to maintain a rehabilitative, recidivism-minimizing facility? Can you tie payments for services to recidivism reduction? How should the calculation be done? I have some ideas, but I'm probably more naive than you on regulation and the administrative state. Looking forward to your thoughts.
When dissent rhetoric comes true
In covering summary judgment in civ pro, I teach an Eighth Circuit case called Sitzes v. City of West Memphis. A police officer drove, perhaps without lights or sirens, 80-90 mph through a residential neighborhood towards what may or may not have been a genuine emergency and hit a car, killing the driver and injuring the passenger. A divided court held that intent-to-harm was the applicable standard and granted summary judgment in favor of the officer. It is a great teaching case because both the majority and dissent parse the evidence in the record in identifying what may or may not be genuine disputes of material fact and join issue with what facts are material in light of the applicable legal standard. It is also one of the few cases in Civ Pro that genuinely seem to get students riled up.
At one point, the dissenter (a district judge sitting by designation) went into parade-of-horribles mode. The majority held that there was no intent to injure since the officer genuinely subjectively believed he was rushing towards an emergency. That being so, the dissent argued, "an officer could avoid Section 1983 liability for driving 100 miles per hour through a children’s playground during recess time, by stating that he subjectively believed there was an emergency and the path through the playground was the most direct to get to the claimed emergency." The majority's only responses were: 1) that's not this case and 2) "we think it very likely that an officer who intentionally drove through a playground . . . could be held liable even under the intent-to-harm standard, regardless of the officer’s avowed belief, at least absent some compelling exigency not described in the hypotheticals."
Oral Argument (in Athens, GA) on Regleprudence
I had the great fortune this week to be on Christian Turner & Joe Miller's podcast, Oral Argument, which they run out of Athens, GA. We talked about my new forthcoming paper with Nestor Davidson: "Regleprudence -- At OIRA and Beyond," 103 Geo. L.J. (forthcoming 2015) -- and many things besides, like this cover of REM's Country Feedback. These guys run a fabulously entertaining show. Their clever title for our show together , "Rex Sunstein?," probably is a better title than "Regleprudence." And they have some really useful links you can scan as you listen to the podcast. Here is the abstract for the paper we spent most of the time discussing:
There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. While administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal or law-like but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call "regleprudence," a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into one case study – the Office of Information and Regulatory Affairs and the legal work it undertakes through regulatory review – and gesture at how more general attention to regleprudence can improve our understanding of important corners of the Executive Branch.
Weekend Reading: Driver, Reactionary Rhetoric and Liberal Legal Academia
Justin Driver has an excellent paper by that title in the new issue of the Yale Law Journal, which is an excellent issue devoted to Bruce Ackerman's new We the People book. Here's the abstract:
As celebrations mark the fiftieth anniversary of the Civil Rights Act of 1964, it is essential to recover the arguments mainstream critics made in opposing what has become a sacrosanct piece of legislation. Prominent legal scholarship now appears to misapprehend the nature of that mainstream opposition, contending it assumed more aggressive forms than it actually did. Upon examining the actual arguments respected figures wielded against the Civil Rights Act during the 1960s, certain patterns of argumentation become almost immediately apparent. Mainstream critics consistently opposed the legislation not by challenging it head on, but instead by employing three standard arguments that Professor Albert O. Hirschman’s The Rhetoric of Reaction identified as sounding variously in perversity, futility, and jeopardy. In addition to demonstrating how Hirschman’s taxonomy illuminates mainstream opposition to the Civil Rights Act, this essay proceeds to argue that modern legal academia accords The Rhetoric of Reaction inadequate attention. That is so because the forms of argument Hirschman explored now frequently appear in what would initially seem an improbable place: the scholarship of liberal constitutional law professors. Left-leaning legal scholars often propose revised assessments of high-profile Supreme Court opinions, asserting that—properly understood—those opinions have had perverse effects, ended up being futile, or jeopardized some larger achievement. Legal scholars also deploy such reactionary rhetoric prospectively, warning about the dangers that they assert will accompany future efforts to issue progressive judicial decisions. Given the prevalence of reactionary rhetoric among liberal law professors, it is crucial both to grapple with the reasons that may explain its current ascendance and to identify some of the undesirable consequences that could flow from its common usage.
I think it's a terrific read, although I don't necessarily agree with all of it.
It is worth noting two caveats Driver draws from Hirchsman's excellent book:
Thursday, June 19, 2014
How to Prosecute Crimes Committed Abroad?
Earlier this year, in U.S. v. Pepe, a former U.S. Marine captain was sentenced to over 200 years in prison for brutally molesting young girls while teaching in Cambodia under the pretense of being a college professor looking out for the Cambodian youth. He was found guilty of a violation of the PROTECT Act, a laudable federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad. The Pepe case had been lingering for eight years. The investigation began in 2006, the jury convicted in 2008, and since then the case has been stuck in litigation limbo (a lingering motion for new trial based on an inappropriate relationship between a U.S. law enforcement agent and translator).
I have previously written about the PROTECT Act, and how it, along with numerous other federal statutes that criminalize U.S. citizens behavior abroad, raises an interesting Foreign Commerce Clause (FCC) issue - a matter in which circuit courts are in complete disarray over. Assuming that Congress, under the FCC, has the power to enact laws like the PROTECT Act with extraterritorial application, the next issues to address (the issues which are framing my fall research project) are the criminal procedure implications of investigations of U.S. citizens in other countries and the related evidentiary matters.
Alice Corp. v. CLS Bank...thanks for nothing
A few weeks ago, I complained about the Supreme Court's continued efforts to change patent law, but without any guidance as to how it was supposed to happen. I concluded with my hope that the Court would tell the Federal Circuit what they got wrong (7 opinions issuing from 10 judges) and what the right answer was about the patent eligibility of software and computer-implemented inventions.
Well, this morning Alice Corp. v. CLS Bank issued - and remarkably, the Court unanimously affirmed the Federal Circuit (??) and specifically declined to provide the guidance that has been lacking: "In any event, we need not labor to delimit the precise contours of the 'abstract ideas' category in this case" I'm sure I'll have some more thoughts on this, but my initial reaction is "Thanks for nothing."
Changing Law Professor: Job Security and Governance
Following up on a recent post on the "changing law professor," let me comment on what the phenomenon of what might be called the separating of the law professioriate, as law schools look to experienced lawyers to teach and work full-time in the experiential (clinical and more) space and increasingly-credentialed academics to do more interdisciplinary teaching and writing. As a couple commenters noted, this is not a brand new phenomenon; nor is it absent elsewhere in the academy. But my claim is that the pressures on law schools to carry out two fundamentally different objectives simultaneously -- to be traditionally and successfully "academic" and to be increasingly practical -- points toward a model of a twin full-time faculty, with law teachers following more or less the principle of comparative advantage.
What implications does such a model, well underway at a number of American law schools, for important matters of security and governance? The "job security" issue has gone through accreditation twists and turns for a number of years. The ABA walked right up to the precipice just this past year of removing what is essentially a tenure requirement for full-time faculty members, deciding at the last moment to maintain existing accreditation standards in this area. Yet, the requirement of tenure for full-time ladder rank faculty has not swept in the large numbers of full-time faculty whose work is principally teaching and who, usually although not always, are teaching practical, skills-training courses. It has to a substantial degree done so with respect to full-time clinicians. But not all faculty members who are carrying out the experiential and practical-skills parts of the academic program are rightly labeled clinical faculty. So, the maintaining of the current structure of ABA standards does not settle the matter. Far from it.
In any case, the crucial matter here is not whether tenure exists and persists as a requirement for "non-traditional" full-time faculty. We could and should debate this issue, and this debate is highly to continue as the ABA (and perhaps the AALS) revisit their standards in the current environment of law school instabilities. Rather, the internal institutional question is how best to construct a regime of job security for faculty members who continue to be deeply invested in the law school and, moreover, are carrying out major parts of the focused, innovative skills training which both the profession and academy views as essential to law schools' contemporary missions? Let me put the point more sharply: It makes little sense to see one big hunk of what I have called the two faculties represented by the "changing law professor" as not having the job security befitting this role and earned by the impactful work they do in the institution. The traditional case for weak job security was flexibility in hiring, in promotion, and in administrative and financial structure. While such flexibilities are (here putting my dean hat on) very appealing indeed, such flexibiity is at odds with a faculty configured to do both high-level research and publication and to implement a curriculum which trains skillful lawyers for the new legal economy.
Standing is easier when you're Younger
An open issue in the standing discussion in SBA List is the extent to which the threat of an administrative proceeding, a la a complaint about false electoral speech before the Ohio Elections Commission, constitutes sufficient harm to allow standing for a preenforcement challenge to the underlying statute. The Court emphasized that adminstrative proceedings impose burdens on time, cost, and distraction to possible speakers and that a Commission finding that some speech was false may be viewed by the public as a state-imposed sanction--all genuine injuries-in-fact. The Court cited Ohio Civil Rights Commission v. Dayton Christian Schools for the proposition that "If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not." But the Court ultimately punted on the question because Commission proceedings might be followed by criminal prosecution, presenting an additional element of harm in this case.
But the Court's hesitancy or ambiguity on this point is unwarranted and potentially troubling. There should be no question that genuinely threatened administrative enforcement proceedings should be sufficient for preenforcement standing.
Dayton was a Younger case, which held that federal courts must abstain in deference to ongoing coercive enforcement proceedings before a state civil rights commission. The portion of Dayton quoted in SBA List was from Footnote 1, in which the Court quickly disposed of any ripeness concerns, citing two other Younger decisions, both of which involved threatened criminal prosecutions, Steffel v. Thompson and Doran v. Salem Inn.
Wednesday, June 18, 2014
The Precedent Spectrum
The Roberts Court has given us a lot of interesting uses of precedent, including a proliferation of doctrines that purport to dilute the power of stare decisis. The upshot is that the familiar, old-school divide between precedent and dictum has given way to a complex precedent spectrum. Below are a few examples, as well as some misgivings about them.
More on SBA List and standing
Marty Lederman offers some thoughts at SCOTUSBlog on the future of standing after SBA List. He focuses on something I glossed over a bit: The seeming inconsistency between Clapper, which required that an injury be "certainly impending," and prior case law (referred to in passing in a footnote in Clapper) which only required a "substantial risk" of harm. In SBA List, Justice Thomas presents them as alternative standards. Marty parses the decision, suggesting the Court applied a uniquely forgiving standard there, given that there was little chance (not even substantial and certainly not "certainly impending") of the state bringing a criminal prosecution on top of the administrative proceedings that were more likely. He also argues that the Court has the flexibility to make the requirements looser or stricter, depending on future contexts (considering, e,g., whether free speech is involved or whether election issues are involved or something else).
That "something else" might be the difference between challenges to regulations of the public's primary conduct as opposed to regulations of law-enforcement techniques and practices.
Tuesday, June 17, 2014
Waiver and Forfeiture in the Court
The Supreme Court frequently relies on principles of waiver and forfeiture to limit the scope of its review. But waiver (the voluntarily relinquishment of an argument) and forfeiture (the failure to press an argument) are most naturally at home in traditional litigation that affects only a limited number of parties. In those cases, a court's main institutional role is to adjudicate the narrow dispute at issue, perhaps without even creating any legal precedent. Think, for instance, of adjudication in a small claims court. By contrast, waiver and forfeiture are in tension with some of the Supreme Court's most salient institutional goals -- namely, to provide correct precedential guidance as to important legal disputes affecting many parties and interests. Several recent cases illustrate how the Court has used waiver and forfeiture while navigating its dual identity as both a traditional adjudicator and a precedential rulemaker.
IRS: "sorry, can't produce" or a bad example of hiding the ball?
Last week, the IRS stated that it lost numerous emails from Lois Lerner concerning the targeting of conservative groups for tax exempt status because her computer crashed. And this week, the IRS is now revealing that it has lost numerous additional emails from key IRS officials. Politics aside, it is interesting to think how this discovery issue involving electronically stored information (ESI) would be addressed in a federal court under the Federal Rules of Civil Procedure (FRCP).
The facts surrounding this issue almost read like a law school exam hypothetical. The IRS received a subpoena to produce emails between key IRS officials and other government agents that might suggest targeting. The IRS knew months ago, in February, that it could not produce the emails, but failed to inform Congress that the emails were lost until just the last few days. The IRS has taken the position that the emails were lost during a computer crash in 2011 but that the IRS has made a "good faith" effort to find them having spent $10 million dollars (of tax payer money) to deal with the investigation including the cost to piece together what could be found. The IRS does not deny that the recipients, other government officials, may still be in possession of the emails. The IRS, however, maintains that because the subpoena was only directed at the IRS, not other government agencies, the non-IRS recipients of the emails are not required to produce them.
If this issue arose in federal court, under FRCP 26, parties are required at the outset to submit a "discovery plan" that includes how ESI will be retained and exchanged in order to prevent unnecessary expense and waste. The FRCP requires the parties to take reasonable steps to preserve relevant ESI (a litigation hold) or face possible sanctions. Under Rule 37's so-called safe harbor provision, however, "absent exceptional circumstances, a court may not impose sanctions ... for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." The IRS is hanging its hat on this safe harbor rule by arguing that, despite a good-faith effort, the emails were lost. Did the IRS, in fact, make a good faith effort?
SLU PLR Call for Papers: The New Civil War: State Nullification of Federal Law 150 Years after Appomattox
From the Saint Louis University Public Law Review:
In recognition of the 150th anniversary of the end of the Civil War, the editorial board of the Saint Louis University Public Law Review (PLR) is soliciting articles for a special issue on the recent resurgences of state opposition to federal power. The publication will consider articles on current federal/state tensions, as well as articles linking current events to the history of nullification in the United States. Possible topics include but are not limited to:
* State efforts to nullify Federal Marijuana Laws
* State efforts to nullify Federal Gun Laws
* State resistance to Federally Mandated Health Care
* State efforts to constitutionalize bans on Same-Sex Marriage
Interested authors should submit an abstract of no more than 1,000 words to Managing Editor Dan Rankin (email@example.com) by July 1, 2014. Publication offers will be made based on an editorial board review of the submitted abstracts. Accepted offers will receive a publication contract from PLR that will require finished articles by October 15, 2014. All inquiries should be directed to firstname.lastname@example.org.
Monday, June 16, 2014
Looks like President O got an early start on that coconut
After the next inauguration, quipped President Obama in a hipster Tumblr interview today, he says he'll "be on the beach somewhere, drinking out of a coconut . . ." Maybe sooner than that, as the president proclaims at the beginning of the interview: "We have enough lawyers, although it's a fine profession. I can say that because I'm a lawyer."
So "don't go to law school" is the message he wants to get across. Larger debate, of course. But let's see what he says right afterward. Study STEM fields, he insists, in order to get a job after graduation. STEM study, yes indeed. But STEM trained grads often look beyond an early career as a bench scientist or an IT staffer, or a mechanical career or . . . that is, STEM-trained young people look to leverage these skills to pursue significant positions in corporate or entrepreneurial settings. Hence, they look for additional training in business school, in non-science master's programs, and, yes, even in law schools.
Tumblr promises #realtalk, so here is some real talk: Significant progress in developing innovative projects and bringing inventions to market require a complement of STEM, business, and legal skills. These skills are necessary to negotiate and navigate an increasingly complex regulatory environment and to interacts with lawyers and C-suite executives as they develop and implement business strategy. Perhaps too many lawyers, but not too many lawyers who are adept at the law-business-technology interface. "Technology is going to continue to drive innovation," wisely insists President Obama. But it is not only technology that is this driver, but work done by folks with a complement of interdisciplinary skills and ambition.
Standing, ripeness, and SBA List
Not surprisingly, SCOTUS in Susan B. Anthony List v. Driehaus reversed the Sixth Circuit and held that the First Amendment challenge to Ohio's prohibition on knowingly or recklessly false campaign speech was justiciable; Justice Thomas wrote for a unanimous Court in a challenge brought by a group that wanted to run ads suggesting that supporting the Affordable Care Act means supporting taxpayer funded abortions. A few things of note (in addition to Richard's comments).
Injury-in-fact is established for purposes of a preenforcement challenge when the plaintiff alleges an intention to engage in some conduct "arguably affected with a constitutional interest" that is prohibited by the challenged statute where there is a credible threat of prosecution. That threat be shown by past prosecutions against similar conduct by the plaintiff or others similarly situated and by the absence of any disavowal of intent to prosecute. Threat may also include bringing administrative proceedings (such as those at issue here), at least when combined with a threat or risk of criminal enforcement (the Court left open whether administrative proceedings alone is enough of an injury to create standing).
Changing law professor? Changing law schools?
Interesting article in The Harvard Crimson two weeks ago notes what we have long known already: Expectations of hiring faculty have grown, especially with regard to more published writing. In turn, law schools are demanding more advanced academic training -- what Harvard's James Greiner says is "essentially requiring them to do a Ph.D."
Looking principally at the positive, rather than normative, side of this issue, is it likely that these priorities will withstand turbulence in the current law school environment? Is such a focus on ever-accumulating academic credentials a luxury in these present circumstances? A difficult question, without an obvious answer.
The push toward experiential learning may result in law schools looking at more legal experience, perhaps to go along with the advanced academic training. After all, it is not uncommon to find joint degree holders with clerkships and at least a couple years of big firm or governmental lawyering experience under their belt. At the same time, law schools are understandably skeptical of the great added value of such highly-credentialed folks in providing sophisticated experiential skills to a demanding audience. Surely some idea of comparative advantage would see law faculty who have substantial (5+?) years of increasingly impressive legal experience as more suited to these practice-oriented educational initiatives. Moreover, a PhD holding academic is going to see these many years of highy academic training as better amoritized through serious scholarly production, rather than designing and implementing complex experiential courses and simulations and in engaging her students principally on the terrain of practical lawyering.
Ripeness, In and After SBA List v. Driehaus
Today's unanimous standing decision in Susan B. Anthony List v. Driehaus generally came as little surprise: confronted with speakers wishing to criticize candidates for office, the Court gave a green-light to a pre-enforcement First Amendment challenge. Along the way, however, the Court had a few interesting things to say about ripeness. In this post, I'd like to explore the possibility that SBA foretells future changes in ripeness doctrine.
The Flawed NRC Report: The “Prison-Industrial Complex” Part 1: Private Prisons
(This is Part 10 in my criticism of the recent National Research Council report on incarceration. Part 1 looks at the over-emphasis on the drug war. Part 2 and Part 3 argue against assigning too much importance to longer sentences. And Part 4, Part 5, Part 6, Part 7, Part 8, and Part 9 look at the role of prosecutors.)
I want to turn my attention now from how the NRC report handles prosecutors to its discussions of the impact of interest group pressure on prison growth. As with prosecutors, it barely touches on this issues, despite its critical importance, and its brief analysis highlights effects that appear to be relatively unimportant and overlooks those that matter most.
In this post, I want to focus on one putative cause that receives outsized attention in the popular accounts of prison growth despite its relative irrelevance: the private prison.
When I tell people I study the causes of prison growth, I usually get one of two responses: “isn’t it just the war on drugs?” or “isn’t it just private prisons?” The former point I’ve belabored to death. Now I want to dispatch the latter.
Wrap-Up for "Making the Modern American Fiscal State"
Many thanks for all our participants, especially Ajay Mehrotra, for our club on "Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929." Here is a list of the posts:
- Bank: The Rise of Progressive Taxation: What Does it Mean to be Progressive?
- Parrillo: American Fiscal State-Building, Crisis, and Contingency
- Morse: Mehrotra tackles two mysteries in Making the Modern American Fiscal State
- Avi-Yonah: Avi-Yonah on "Making the Modern American Fiscal State"
- Lindsay: “You didn’t build that” and the “Benefits” Theory of Taxation
- Mehrotra: Making the Modern American Fiscal State, Central Themes and Claims
- Lindsay: The Citizen-Consumer and the Origins of Progressive Income Taxation
- Mehrotra: Taxation, Civic Identity, and the Future of Consumption Taxes
Many thanks to all our participants for a great club. And if you enjoyed this club, check out the online symposium at Balkinization for Nick Parrillo's book, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.
Sunday, June 15, 2014
Marital Infidelity and the Public/Private Divide
I've just read this U.S. News editorial, suggesting that the American public has come full circle in its approach toward infidelity of public figures. It echoes some thoughts I had after watching a few episodes of Scandal, House of Cards, and The Good Wife. All three shows are deeply invested in exploring the public/private divide, and in particular, the connection between sexual infidelity and public political performance. But each of the shows does it a bit differently.
If the editorial is right, then we've seen the rise and fall of American concern with infidelity--from the indifference toward Kennedy's extramarital affairs to today's indifference to Vance McAllister's kiss. And during the heyday It seems that the combined message from the Clinton, Wiener, Spitzer, Petreaus et al. affairs is that evidence of marital infidelity has some bearing on one's function as a public citizen.
Saturday, June 14, 2014
CFP Deadline: Seventh Junior Faculty Fed Courts Workshop
The Economics of the Offside Rule
The recently begun World Cup allows us to think about soccer (or football, for those of you reading outside the United States) as a source of laws and rules, as opposed to our usual focus on baseball. Well, for all the complaints about the technicality and incomprehensibility of the Infield Fly Rule, it has absolutely nothing on Offside (Law 11 of Football's 17 Laws). I could not explain the rule in the space of this post, although I think I now sort-of understand it thanks to the videos embedded after the jump.
Offside (note the singular: people get persnickety if you add an 's' at the end) is soccer's counterpart to the infield fly rule as being what marks you as someone who really knows and understands the game--you know baseball if you can explain the infield fly, you know soccer if you can explain Offside. But is Offside a limiting rule as I have defined that term--is it soccer's logical and policy counterpart to the infield fly? I am not sure.
Offside is an anti-"cherry-picking" rule, preventing teams from having one or more players hang around the goal and doing nothing but kicking long balls up the field pitch. It also prevents the defense from having to keep multiple defenders back by the goal to guard the cherry-picker. The result is to push the action up the field and keep more players involved on both ends. The underlying logic is aesthetics and the look of the game. The rulemakers did not want what one soccer web site called a "ping-pong match" of long kicks back and forth, as opposed to short passes and runs up and through the middle of the pitch. It also avoids what many would regard as "cheap" goals.
An Addendum on New York Times Op-Eds and Columnists
A fun post from Neil Buchanan on why he thinks the New York Times should get rid of its op-ed columnists and run a vast rotating bunch of writers instead. (It's not clear to me whether the replacements he envisions would only be experts opining on subjects ostensibly within their expertise, or whether he would also run a mix of opinionated generalists who would at least be more varied and surprising and entertaining than the existing limited stock of permanent columnists. On the former possibility, one might enjoy this short take from Mark Tushnet, along with his acknowledgment that his criticism applies especially to bloggers like us, who have some ostensible expertise in a particular area but sound off on all kinds of things.)
I'm fine with his proposal on the whole. I would add three pieces to his discussion that I don't think got much attention from him. One is a matter of the historical background that might help explain why the Times functions as it does. Columns in the Times have often served two useful internal purposes for the paper. One, they serve as a kind of negotiated golden parachute or emeritus position to ease someone out of a job like executive editor; Abe Rosenthal and Bill Keller fall into this category. Two, they have served as a way to retain a valued Times staffer, particularly one who has lost the grand sweepstakes for executive editor or some other main masthead position. Examples here include Anthony Lewis and Tom Wicker. I'm not sure this category describes any current main op-ed columnists (Maureen Dowd and Frank Rich may have been offered columns for retention purposes, but they were not leadership competitors.) It may describe some of the Taking Note and Contributing Writer columnists. These kinds of motivation were considerably responsible for the Times op-ed page taking the shape it did. The Times initially had an editorial page; the op-ed page was a relatively recent later innovation. The columnists it slowly accumulated were mostly people who insisted on a column as the price of staying at the Times rather than going elsewhere, or who were failed heirs apparent during particular moments of change at the top of the Times's masthead. (Other columnists filled a third need for the Times, which was "casting" or changing the face of the Times in response to demands for a more prominent role for African Americans, women, conservatives, and others; past examples include Bob Herbert, Anna Quindlen, and William Safire, and there is Ross Douthat in our own era.)
Second, I think Buchanan acknowledges but gives too little weight to the degree to which something closer to what he wants has already taken place on the Times's web site, although not its print version. The categories and backgrounds of opinion writers on the web site have expanded considerably. Whether these writers are much good is a separate question; certainly the Taking Note column, which basically consists of politically predictable blog posts by former reporters, is worth skipping on a daily basis. (Indeed, I assume that Buchanan's proposal would only promise more variety and less tedium on the op-ed page, not necessarily better quality.)
Third, I cannot resist taking issue with a couple of his judgments along the way. Pace Buchanan, losing Charles Blow would not be a blow. By the time he left, Frank Rich was not a loss. (I am surprised that Buchanan laments stale, predictable column writing but exempts these two.) And he's wrong about Manohla Dargis.
Friday, June 13, 2014
The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old
As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention.
Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls. Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison. Their father is a U.S. citizen. Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith. Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family. The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.
There are clear human rights violations and violations of Sudanese law. Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law. Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process. Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan. Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.
Taxation, Civic Identity, and the Future of Consumption Taxes
Thanks again to Matt Bodie and Prawfsblawg for hosting this discussion of my book, and for the commentators for their thoughtful questions and critiques. As I mentioned in my previous post, I thought I’d try to address some of the more specific questions raised by the readers and comments in their earlier posts. But before I do that I also want to reply to Matt Lindsay’s fascinating comment about the historical relationship between the rise of progressive taxation and consumer citizenship.
Thursday, June 12, 2014
Tesla Surprises with Unilateral Open Source Patents Initiative
Today Elon Musk, Tesla's CEO (pictured below), announced that "all our patents belong to you". Musk said that in the spirit of the open source movement Tesla will be from now on sharing freely all their patents. Smart move is my take on it. Here is what I told the Harvard Business Review about Tesla's plan: good for the brand, good for constituting a greater consumer market in EVs thus creating more demand, good for faster industry innovation, good for secondary EV network charging fees, and all the while, without losing Tesla's real competitive edge: the product itself, which is larger than the sum of the knowledge embedded in its patents.
The Flawed NRC Report: Prosecutors, Plea Bargains, and Long Sentences
(This is Part 9 in my criticism of the recent National Research Council report on incarceration. Part 1 looks at the over-emphasis on the drug war. Part 2 and Part 3 argue against assigning too much importance to longer sentences. And Part 4, Part 5, Part 6, Part 7, and Part 8 looks at the role of prosecutors.)
As one of my last posts about the NRC report and prosecutors, I want to return to the issue of the relationship between incarceration and longer sentences. In earlier posts, I said that longer sentences have not been a primary engine of prison growth, and that is true if "longer sentences are driving prison growth" is read to mean "people serving more time in prison is driving prison growth." But longer sentences could still be important, just in a way that the report ignores.
They could matter because of how they affect plea bargaining.
The Citizen-Consumer and the Origins of Progressive Income Taxation
By way of underscoring Ajay’s emphasis on the importance of the pre-crisis conceptual transformation (and adding, perhaps unnecessarily, to the already-complex question of historical causation) I wanted to build on Ajay’s notion of fiscal citizenship to propose a further way of thinking about the relationship between the evolving political economy of citizenship and the rise of progressive income taxation. There is now a sizeable literature analyzing the shift in civic identity in the late-19th and early 20th century, from production to consumption—more specifically, from understanding work itself as a source of independence, dignity and virtue; to understanding a worker’s ability to maintain a respectable standard of living as a measure those citizenly qualities. This capacity to consume was at the center of union movements for a living wage, and for harnessing purchasing power (though boycotts and union label campaigns) to create a more just labor system. (I’ve argued in my own work that the standard of consumption likewise became an important measure of fitness for citizenship in debates over federal immigration policy.)
This left me wondering whether this shift in the political economy of civic identity helped to shape the transformation of the fiscal state by giving new resonance to the long-standing critique of the tariff and fueling support for a non-consumption-based revenue system. Ajay demonstrates that the tariff was widely viewed as inherently regressive, extracting more from those with less by surreptitiously folding the tax into the price of consumer goods. And even if it had, at an earlier time, plausibly served to protect infant industries, with the maturation of American capitalism in the final decades of the 19th century it was increasingly viewed as an illegitimate special privilege bestowed on political favorites. That’s basically a neo-Jacksonian critique of class legislation that, by the 1890s, had been around for decades. (And as Ajay notes, it had been forcefully advanced against the tariff by figures like Thomas Cooley and David Wells.)
I wonder, though, whether that critique gained such traction when it did because it stressed the impact of the tariff on the cost of life’s necessities at precisely the moment when a worker’s capacity to consume—to maintain a respectable standard of living—was becoming a measure of not only personal independence but also, and more broadly, of the basic compatibility between the industrial labor system and equal citizenship. This isn’t to doubt the vitality of neo-Jacksonian critique or the important role of the progressive economists in popularizing it; but rather to propose a further, perhaps complementary, way of understanding why political receptivity to a non-consumption-based alternative to the tariff system (i.e. the income tax) gained traction after the turn of the century. In short, was painting the tariff as a regressive consumption tax more salient at the turn of the century than it had been just a couple decades earlier, precisely because one’s capacity to consume had become so much more central to American civic identity? And while I’m at it, does the relative prominence of “consumer citizenship” in modern American political culture continue to serve as an impediment to serious consideration of broad-based consumption taxes?
A new Green Bag (Spring 2014)
Volume 17, Number 3
(Most of the issue is available here now.)
Our Mistakes • Judicial Construction and the Fragility of Elaboration • The Stephen G. Breyer Bobblehead, Annotated • Call for Papers: “Reading Law”
To the Bag
Douglas P. Woodlock
Must Salmon Love Meinhard? Agape and Partnership Fiduciary Duties, by Stephen M. Bainbridge
Fighting Legal Innumeracy, by Edward K. Cheng
The Proper Pronunciation of Certiorari: The Supreme Court’s Surprising Six-Way Split, by James J. Duane
Boilerplate and Consent, by Nancy S. Kim
From the Bag
A Christmas Gift for the Supreme Court: How a 1959 Holiday Party Eclipsed a History of Discrimination, by Ross E. Davies
The Docket Sheet, by Banning E. “Bert” Whittington
Fables in Law, Chapter 3: Legal Lessons from Field, Forest, and Glen, by D. Brock Hornby
Wednesday, June 11, 2014
What does it mean to "enjoin" teacher tenure? A plea for coherent remedies in school reform litigation
I have just finished reading Judge Treu's decision holding unconstitutional five California statutes protecting teachers from dismissal -- so-called "teacher tenure" statutes. It was not difficult to read: The opinion is only sixteen pages long. And yet, after reading the opinion, I am left completely confused about what the opinion means for California schools. The problem is that Judge Treu has identified a state of affairs that deprives kids -- especially low-income kids -- of educational quality, but he has not specified how this state of affairs should be remedied. The result is judicial incoherence.
Take, for example, the part of the opinion "enjoining" the various statutes defining the process for firing tenured teachers (pages 11-13). Judge Treu concludes that these statutes provide "über due process" for teachers that is "so complex, time-consuming, and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory" (page 13). Two to ten years to fire an incompetent teacher is just too long, according to Judge Treu. Judge Treu, therefore, "finds the Dismissal Statutes unconstitutional under the equal protection clause of the Constitution of California" and "enjoins their enforcement." (id.)
But what does it mean to "enjoin" the "enforce[ment]" of some unspecified set of dismissal procedures? Is Judge Treu holding that California schools may not dismiss any teachers under the current rules until the California Legislature alters these procedures in a constitutionally acceptable way? Of course not: Such an interpretation transforms Judge Treu's decision into über tenure for teachers. But then what exactly does he mean when he says that certain procedures are "enjoined"? Which ones? And what process should replace them while the legislature mulls over a fix? A judge-made code of due process (presumably not of the "über" variety)? Or will Judge Treu just stay his opinion indefinitely while the legislature pretends to fix it? And, assuming the unlikely event that the legislature acts, what would constitute an acceptable legislative fix of these rules? Suppose that, after a legislative overhaul of the rules, it still takes, say, two to four years to fire incompetent teachers: Would the new procedures pass constitutional muster because the process had sped up a bit, even though they were still slow?
I share Judge Treu's sense that job security for public employees can injure recipients of public services. But I am also inclined to think that this remedy-less sort of constitutional ruling, familiar from the New Jersey Supreme Court's opinion in Mount Laurel I, is a hopeless way to deal with the problem of public law reform.
Making the Modern American Fiscal State, Central Themes and Claims
First, let me begin by thanking Matt Bodie and the other folks at PrawfsBlawg for hosting this online book symposium, and the readers for their insightful commentaries. Many of the readers/commentators have seen this book project evolve over time and I’ve learned immensely from their earlier feedback and their own scholarship. I’ve also enjoyed reading the other book club posts at this blog, and I’m honored and delighted to have the opportunity to discuss my new book with PrawfsBlawg readers.
With this initial post, I thought I’d try to address some of the book’s more general themes and central claims – many of which have already been eloquently summarized by several of the commentators. I’ll follow up soon with a second post addressing some of the more, historically-specific questions posed by the readers and comments.
So, let me begin by addressing two key issues drawn from the commentators’ posts: (1) the political consequences of the rise of the modern fiscal state – intended and unintended; and (2) the importance of crisis and contingency – as they relate to theories of historical change.
Orange is the New Black - Spoiler Alert
I've just finished viewing the recently-released new season of Orange is the New Black, which I had awaited with much anticipation since reading Piper Kerman's book and the first season. It was everything I hoped for and more, and the storylines were engaging and fantastic. And, even taking into account what we all already know--that TV series aim to entertain and have to compete in the ratings arena--this season's plotlines highlight some important prison issues that the public may not be aware of and offers an intelligent, critical look at them.
Let the spoilers begin!
This season's episodes are drawing attention to two populations of inmates that have previously been in the dark to the public: the old and the infirm. It's easy for the public to imagine the typical prisoner as a young black male, and the statistics on prison population confirm the overrepresentation of such inmates, but that ignores the growing aging population in prison and the special problems they pose. As life-course criminology shows, people tend to age out of street crime as a natural transition to adulthood, and lengthy incarceration beyond those periods, particularly for nonviolent, nonsexual offenses, therefore raises serious questions.
In Cheap on Crime, I talk about the rise in attention of correctional authorities to the old and the infirm, modifying Feeley and Simon's risk-based actuarial justice to a cost/risk equation. That is, recession-era politics look not only at the risk an individual poses, but also at the cost of his or her incarceration. Orange is the New Black raises these hard questions through the stories of older and infirm inmates these season, focusing on two in particular: Sister Jane Ingalls, an excommunicated, politically active nun incarcerated for chaining herself in place at a nuclear weapons base during a political protest, and Rosa Cisneros, a former professional bank robber now undergoing chemotherapy for an aggressive cancer.
Sister Ingalls, friends with a group of older inmates, witnesses the painful "compassionate release" of a fellow inmate with Alzheimer's, shocked at the fact that no plans are made to care for the inmate after dumping her on the street. This sad and shocking fact reflects the weakness of many similar "compassionate release" programs designed to save money on care of the elderly without thinking about support following their release. Horrified by the prison authorities' indifference to the plight of an old, frail, sick inmate, Sister Ingalls embarks on a hunger strike. For a while, she sits on the sidelines of a group of inmates organizing a hunger strike for various issues, and eventually, she remains the lone hunger striker after other inmates are placated with some minor concessions.
Tuesday, June 10, 2014
Is the Supreme Court Rushing to Judgment?
One of the great things about the Supreme Court is that it adheres to self-imposed deadlines. Each "term" basically starts in early October and ends in late June, before the justices begin their summer recess. This annual rhythm guarantees that cases do not languish undecided, while giving parties and the press some sense of when a result will issue. But we all know that strict, arbitrary deadlines aren't always desirable. Sometimes, doing a good job means taking a little longer than planned. And, as work piles up and deadlines loom, mistakes are more likely to happen. If the Court is rushing to judgment this month, then the results could fundamentally shape the law.
First-Person Judicial Opinions
Something that jumped out at me in reading Judge Barbara Crabb’s recent opinion striking down Wisconsin’s ban on same-sex marriage is that she wrote in the first-person. Here, for example, are Judge Crabb’s concluding sentences:
Because my review of that law convinces me that plaintiffs are entitled to the same treatment as any heterosexual couple, I conclude that the Wisconsin laws banning marriage between same-sex couples are unconstitutional.
Although a Westlaw search reveals that use of the first-person is not uncommon amongst district judges (the phrases “I hold” or “I conclude” appear in at least 10,000 opinions in the DCT database), the practice is hardly universal. Some judges feel that references to “the court” are too formal, and that they obscure the identity of the decision maker. The other side is well-represented by Joyce George’s Judicial Opinion Writing Handbook: “By personalizing the writing, the author takes the position of pitting his rationale against that of the losing party. The judge becomes a substitute for the prevailing party in appearance and in his role.” And perhaps provides fodder for those inclined to rail against the activism of unelected judges.
My instinct is to be untroubled by the first-person, and to suspect that it provides at least a modicum of extra ownership. But I’d be interested in your thoughts.
“You didn’t build that” and the “Benefits” Theory of Taxation
There’s a great deal to admire about Ajay Mehrotra’s terrific new book, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive taxation, 1877-1929. In this initial post, I’ll describe the book’s central themes and a few of its many virtues, and then raise a question about the long-run consequences of the legal-intellectual transformation that Ajay describes.
At the center of Ajay’s account is a wonderfully engaging intellectual history of a group of progressive American economists, including Richard Ely, Henry Carter Adams, and Edwin Seligman. It was these scholar-activists, among others, who did the foundational intellectual work of displacing the then-prevailing “benefits” or “compensatory” theory of taxation, which imagined tax-paying as one side of a reciprocal exchange between the taxpayer and the state; and replacing it with the “ability to pay,” or “faculty” theory, premised on new model of fiscal citizenship grounded in the social democratic values of solidarity and ethical duty.
What teaching issues are you thinking about this summer?
Our faculty is having a lunch discussion this week about teaching. I simply love to teach. And, as a newly tenured professor who recently went through the tenure process, I have been reflecting a lot on my teaching. There are many areas where I could improve. In particular, this summer I have been thinking about the following three issues. While these matters have been previously discussed, I am interested in your current thoughts on each (and any other teaching issues on your mind this summer):
1. Unprepared Students: To this day, every time I call on a student, my heart skips a beat in hopes that the student is prepared. Sometimes I think I am as nervous as the students before I call out a name. I do feel that it is essential students learn that they must be prepared. I have heard of different ways to deal with unprepared students. Some professors wait for the student to read the case during class. Others assign reading panels for the week. Others call on students in alphabetical order. I am old school - I randomly cold call. If I do call on a student who is unprepared, I require them to call on another student to cover for them (like a life line). My hope is that the fear of being forced to put another student in the hot seat is scarier than coming to class unprepared. I have had moderate success with this approach. I have also toyed with counting unprepared students absent for the day. I would be interested to hear what others do.
Avi-Yonah on "Making the Modern American Fiscal State"
The following is a post from Reuven Avi-Yonah:
This is an important and exciting book. Two questions:
1. To what extent did the lack of emphasis on the expenditure side of the budget in assessing progressivity, which Ajay characterizes as a mistake, lead to the current imbalance in U.S. tax policy (no VAT)?
2. Ajay emphasizes the role of Seligman in moving from benefits to ability to pay taxation. But Seligman was also a major figure shaping the international tax regime on a benefits basis. How can the two be reconciled, and what are the implications for the current attempts to revive benefits theories of taxation?
Mehrotra tackles two mysteries in Making the Modern American Fiscal State
Here are two mysteries of United States public finance. First, how was the 1913 ratification of a Constitutional amendment permitting the imposition of a powerful new federal income tax even possible? Second, why doesn’t the United States have a value-added tax or other broad-based national consumption tax? Ajay Mehrohtra grapples with both in his recent book, Making the Modern American Fiscal State.
Ajay calls his approach “neo-progressive,” but “contingent,” and he builds a careful history of American tax law and policy from the 1890s to the 1920s. The story covers the adoption of the corporate and individual income tax at both federal and state levels and the relative decline of excise taxes and custom duties, as well as efforts to improve the breadth and administration of the property taxes relied on by many municipalities. It ends before the explosive tax moment of the New Deal and World War II, which saw the institution of Social Security and other payroll taxes and the expansion of the income tax to a “mass tax.”
The income tax developments form the focal point of this political class warfare story.
American Fiscal State-Building, Crisis, and Contingency
In his sweeping and sophisticated new book, Making the Modern American Fiscal State, Ajay Mehrotra takes on a transformation of profound and enduring importance: America’s shift from a tax regime that was relatively regressive and indirect (centered on the federal tariff) to one that is relatively progressive and direct (centered on the federal income tax). Chapter 1 of the book sets the stage by introducing us to the old tax regime that prevailed as of the 1880s, especially the tariff. Chapters 2 through 5 explain how the new regime first gained a foothold in American government -- in the spheres of intellectual discourse, law, and government institutional capacity. At the end of Chapter 5, the year is 1915: the Sixteenth Amendment has been ratified, Congress has enacted an income tax targeted at the highest earners and corporations, and the Treasury Department has begun its collections, using the crucial administrative technology known as “stoppage-at-source” -- a crude early form of withholding. We can, at this point in the story, recognize the essential features of our present regime. Yet they exist only in embryo: the income tax itself is still tiny, with a top rate of 7%, accounting for only 8% of federal revenue (p. 352). It takes the crisis of the First World War -- with its tremendous revenue demands -- to cause the federal income tax to grow from a mere embryo into the workhorse of the American state. The Great War takes up Chapter 6, and it is the climax of Mehrotra’s story. The income tax's top rate skyrockets to 77%, and it ends up providing most federal revenue (p. 300, 352). The revolution is locked in: even in the putatively reactionary 1920s, as Mehrotra argues in his concluding Chapter 7, the top rate doesn’t go below 25% (more than triple the prewar figure), and the tax accounts for about 50% of federal revenue (p. 352).
Yet despite the centrality of the WWI crisis to the transformation Mehrotra chronicles, he is keen to resist a simple functionalist account in which (to paraphrase Charles Tilly) the war makes the state. As Mehrotra insists: “the wartime fiscal revolution was not merely a functionalist response to the need for revenue .... The wartime tax regime embodied, instead, a complex continuation of the conceptual shift in public finance advanced by prewar progressive intellectuals and political leaders ....” (p. 295; see also pp. 22-25). Mehrotra assigns great importance to this pre-crisis conceptual shift -- he devotes more than half the book to it (Chapter 2-5), in which he explains how reformers provided the income tax with a well-articulated economic and moral justification, a constitutional space, a legislative basis, and the beginnings of a bureaucratic apparatus.
Falling in line on the FTAIA
The Second Circuit last week became the latest circuit (joining the Third and Seventh) to overrule circuit precedent and hold that the Foreign Trade Antitrust Improvements Act (FTAIA), which limits the extraterritorial reach of the Sherman Act, is a nonjurisdictional merits limitation. This court focused more on Arbaugh and the absence of "jurisdictional language," rather than Morrison's absolute "extraterritoriality-is-always-merits" approach. But, citing the Seventh Circuit, the court recognizes the merits nature of the FTAIA. The court makes one nice move with the FTAIA's legislative history and its repeated references to jurisdiction. References to the "subject matter jurisdiction of United States antitrust law" are not unambiguously about the adjudicative authority of the federal courts, but instead are better understood as inartfully referring to the prescriptive scope of federal law, which goes to the merits of any claim under that law.
The Second Circuit also recognized that Congress was as confused as the courts about jurisdictionality and as likely as the courts to use terms loosely and inaccurately, at least prior to Arbaugh in 2006. This suggests that even if Congress did include "jurisdictional language" in a pre-2006 statute, courts still must look carefully at whether it really meant adjudicative jurisdiction or whether it meant jurisdiction in some other sense (notably in referring to its own legislative authority). Morrison's absolute approach helps in this reading of statutory text and history.
The Rise of Progressive Taxation: What Does it Mean to be Progressive?
Ajay Mehrotra is a leader of a new generation of tax historians and a pioneer in the field of fiscal sociology. Befitting his richly interdisciplinary training and acculturation, Ajay’s work is not merely a history of the tax laws, but offers an almost anthropological peek at the development of the fiscal architecture in this country. Indeed, Ajay is one of those writers where I’m tempted to read the footnotes before I read the main text. His citations to authority often provide an unparalleled literature review of the field. As an added bonus, many of his footnotes actually have pinpoint cites, unlike some historical books where the reader is left to wonder whether the author has actually read the books he is citing. With Ajay, there is no such worry. He reminds me of fellow tax historian Assaf Likhovski of Tel Aviv University in his polyglot-like fluency in the literature of multiple disciplines.
In Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, all of the best qualities of Ajay’s work are on display. The book is careful, nuanced, informative, and comprehensive. Although Ajay is not the first to observe this, the book beautifully describes how the revenue system was radically re-made over this period and beyond, shifting from a system focused on regressive customs duties and excise taxes (based upon the “necessity to consume”) to a system primarily based on taxing incomes and intergenerational wealth transfers (based upon the “ability to pay”). As befitting someone steeped in the Elliot Brownlee tradition of economic history, Ajay devotes ample time to profiling the pioneering public finance economists who Ajay gives credit for this progressive transformation, including Henry Carter Adams, Richard T. Ely, and Edwin R.A. Seligman. Perhaps his greatest contribution is in the book’s detailed description of the centralization of fiscal authority and the concomitant development of the administrative apparatus to operate the new system.