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Tuesday, January 11, 2011

Sen. Udall on the filibuster and entrenchment

Sen. Tom Udall, Democrat of New Mexico, is one of the leaders in the move for filibuster reform; he is the lead sponsor of the recent proposal that would end secret holds and require the filibustering minority to hold the floor and keep talking. In the current online version of Harvard Law & Pol'y Review, Sen. Udall lays out the argument why the entrenchment of the filibuster rule is unconstitutional and why it can be changed by a simple majority in the new Senate (under the so-called Constitutional Option or Nuclear Option or whatever the kids are calling it these days). The entrenchment point is essential to enacting any filibuster reform, unless the Republicans are willing to go along with rule reform (unlikely, although I wondered, after seeing Sen. Udall's proposal, whether the Republicans might see it as an acceptable move).

Posted by Howard Wasserman on January 11, 2011 at 05:56 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Faction and the Internet

This fall I did a short talk at the Loyola (Chicago) Constitutional Law Colloquium (a great event, btw, that I hope continues) entitled Faction in the Age of Facebook.  Somehow, and perhaps inappropriately, this weekend’s tragic events in Arizona got me thinking about the subject again.

In the talk, I suggested that Madison’s Federalist 10 argues that two features of an enlarged republic should make it difficult for factions to coalesce and undermine our basic democratic commitments.  The first of these, of course, is a great increase in the NUMBER of citizens.  The sheer volume of people would, Madison thought, make it difficult for any one faction to gain enough voting or advocacy power to make a destructive difference at the federal level.  Second, Madison thought geography would work to our advantage.  It was unlikely, he thought, that a political kook in Georgia would ever meet up and join forces with a like-minded kook in New Hampshire.

While the first of these two protections against faction may actually be strengthened in the Internet age—where more people seem to join the conversation every day—I don’t think there’s any doubt that the second protection is diminished.  Now those kooks in Georgia and New Hampshire probably subscribe to ten of the same blogs, and receive updates from another five common listservs.  They probably exchange emails regularly.  This, I think, should give us at least some cause for concern.

In my talk, I had to concede that there have been other major advances in communications through our history, and the sky hasn’t fallen.  But the Internet combines two features in ways that newspapers, radio, and even television could not:  (1) incredibly broad reach or scope; and (2) real and meaningful interactivity.  In addition, or perhaps as part of the interactivity, the Internet allows for very detailed levels of self-selection in terms of the news sources etc. that one chooses to read.  I suggested that this new combination of scope and interactivity provides opportunities for factious groups to coalesce in ways that have not been possible before—and that this might be a dangerous thing.

Now, of course, many objected—and you might as well—that a rising tide floats all factions, so to speak.  That the Internet makes it easier for all factions to coalesce, and that this increase only adds to Madison’s first pluralist protection, the sheer number of voices in the marketplace.  It may turn out that this is right, and that all these Internet voices may indeed drown one another out.  My fear, though, is that the Internet has actually shrunk the field in important ways, and instead of more and more splintered kinds of factions, we may end up with fewer, better organized ones.  This, I think, might present a real problem for the Madisonian model.  Any thoughts?


Posted by Ian Bartrum on January 11, 2011 at 12:20 PM | Permalink | Comments (0) | TrackBack

Personal jurisdiction returns to SCOTUS

Want to know why civ pro teachers still burden students with Pennoyer v. Neff? Maybe because we have not had anything new to work with in 20 years. The Court today hears Goodyear Lux Tires v. Brown and J. McIntyre Machinery v. Nicastro (in which I signed a scholars' amicus), both of which deal with various issues of jurisdiction over foreign manufacturers. These are, potentially, the first major personal jurisdiction cases to come to SCOTUS since 1990--during Justice Brennan's final term on the Court. Plus, we get a chance to see if the justices' handling of civil procedure issues in oral argument has improved.

Posted by Howard Wasserman on January 11, 2011 at 09:48 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Rethinking exam hypos

Welcome back from AALS (for those who went) and to a new semester. I thought I would begin the semester with a question about exam-writing (because it is never too early to start thinking about that).

The issue-spotting essay is the staple of law-school exams (alone or in conjunection with other testing mechanisms, such as multiple choice). But one thing I have been toying with recently is a move away from made-up hypotheticals and towards essay questions based on real cases. Rather than giving students an elaborate hypo on, say, personal jurisdiction, I would provide a lower-court opinion (prerably one with a  dissent) and have the students write an opinion as the reviewing judge (or a whole reviewing court, if I want to do a group project). This is how I do the oral arguments in my upper-level classes; instead of arguing the case, my civ pro students would write the reveiewing opinion.

The advantage to this, I believe, is that I avoid the problem of having holes in the hypo or of unintentionally creating a hypo that is not sufficiently gray, two-sided, or open-ended. And as for the desire for creative fact patterns, well, truth can be stranger than any fiction I can come up with. Plus, I usually target single issues in my essays ("Decide whether the court has subject matter jurisdiction" or "Decide what law applies"); I tend not to use elaborate factual situations with lots of red herrings for them to dig through. There is less of a sense that I am trying to fool anyone this way.

What I am worried about with this approach is that the lower-court opinion will do all the work for them. Students could simply copy the lower-court's analysis (either from the majority or dissent, depending on how they want to come out) in their essays, without having to put the legal framework and application together themselves. In other words, I want the students to put together and discuss the International Shoe flowchart themselves, not copy it from the lower court's opinion.  Is there a way around this problem? Is this even a problem? Maybe not, since they could just copy the framework from all the cases we read during the semester. And I could take how "original" the organization and writing is in evaluating each essay.

Are there other problems with giving them real cases as the basis for the essay exam? Is there a particular benefit to creating our own hypos for students to work through?

Posted by Howard Wasserman on January 11, 2011 at 08:13 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (6) | TrackBack

Monday, January 10, 2011

Open Thread Re: VAPs and Fellowships

I've received a couple emails asking about the creation of an open thread in which comments can be shared regarding news of appointments to VAPs or similar fellowships like Climenko and Bigelow. So here it is. Have at it. 

Posted by Administrators on January 10, 2011 at 08:32 PM in Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (158) | TrackBack

How to Talk Civilly about Public Employees' Pensions: A Conservatives' Guide

It is now a staple news item that the political winds have shifted against public employees: Everyone -- from Democrats like N.Y.'s Andrew Cuomo to Republicans like N.J.'s Chris Christie -- is piling on, while conservative onlookers cheer.

As readers of this blog may know, I tend to think that this scrutiny of public labor costs is a good thing. But even a good thing can spawn a lot of petty, misguided invective, and there has been no shortage of mean-spirited vitriol cast at public sector unions during this latest set of subnational budget crises.

So, after the jump, here are three rules I observe when talking about public-sector pensions that, I hope, help me steer clear of some of the more histrionic tropes of anti-union rhetoric without compromising on what generally is regarded as my conservative sympathies for cutting back on this budget item.

1. Rule #1: Avoid question-begging comparisons with the private sector.: It is now a standard line that public-sector workers' pensions are larger than those of their private-sector counterparts. In conservative circles, this is taken to be prima facie evidence that the public-sector worker is overpaid. But, of course, one could just as easily conclude from the same comparison that a demoralized, de-unionized, private-sector labor force is under-paid in deferred compensation.

Take, for instance, the fact that public-sector workers are more likely to receive defined-benefit plans rather than defined-contribution plans. This fact can be proffered to show that the public sector is getting a sweet deal. But switching to defined-contribution plans (as Michigan did for its public employees) is not an unadulterated benefit: As Michigan discovered, such a switch can create a class of economically insecure retirees who no longer act as economic anchors for their communities.

In short, one cannot derive an "ought" of proper pay from the "is" of either private or public salaries. One needs a normative theory of proper compensation before one can conclude that public-sector pensions should go down rather than concluding that private-sector pensions should go up.

Rule #2: As a general matter, governments' pension liabilities should be treated with the same respect as other future liabilities based on governmental promises such as bonded indebtedness. Since the days of the Federalists, most conservatives take the contract clause of Article I, section 10 pretty seriously and believe that governments should pay their debts rather than default on their bondholders, even when the debts were issued for silly purposes. Conservatives should extend the same courtesy to pension obligations created by collective bargaining agreements: If conservatives would be leery about a governor's unilaterally announcing that their state will not make a scheduled bond payment, then conservatives ought, to precisely the same extent, be queasy about governors' announcing that they are re-negotiating their governments' pension obligations.

Parity for bonds and pensions does not mean that the latter can never be re-negotiated. At least 173 years of doctrinal and constitutional protections for popular sovereignty have led to strict limits on subnational governments' liabilities to bondholders and other investors. Since Taney's 1837 opinion in Charles River Bridge Case, it has been the general view that subnational governments are not bound by contracts with investors unless those contracts unmistakably impose an obligation on the government. This "unmistakability doctrine" equally limits governmental exposure to non-vested pension liabilities. The cases are legion that, prior to a pension's vesting for a particular employee, most governments' general commitments to pay pensions (or other deferred compensation) do not amount to unmistakably clear commitments not to re-negotiate such compensation for future retirees under Article I, section 10. (For a typical example, see the First Circuit's McGrath decision).

State courts have reached varying conclusions about how "unmistakable" a collective bargaining agreement must be to qualify as a binding commitment not to modify non-vested pension liabilities under their respective state constitutions. The important point is that conservatives who feel solicitude for re-paying bondholders cannot consistently bay for default on public-sector unions' collective bargaining agreements: We conservatives need a similar attitude towards both sorts of future liabilities.

Rule #3: The strongest objections to the pension liabilities created by agreements with public-sector unions are process-based, not substance-based, objections. It is common to argue that public-sector pensions are "too high." The difficulty with this sort of rhetoric (as I have observed before) is that market society gives us precious little practice in figuring out what constitutes a "just wage," deferred or otherwise. "Should" New Jersey cops draw a median pay of $90k -- that is, more than the pay of most White House policy analysts? As a moral matter, I guess it depends on whether they are risking their lives on the beat or writing traffic tickets from those little three-wheel scooters. It also depends on what sort of stimulus boost New Jersey will enjoy from high public-sector pay and a myriad of other factors that are essentially impossible to evaluate. In short, moralistic rhetoric about high compensation is essentially meaningless, because there is no benchmark for a "just wage" in a market society.

There are, however, criteria for sensible compensation-setting procedures. In competitive labor markets, that procedure is competition among employers: we normally operate according to the principle of "to each according to his threat advantage." I do not worry whether I, as a NYU law prof, make too much money, because, if my current or prospective students do not want to pay what I make, then they can easily enough transfer to, or accept offers from, Columbia, Fordham, Brooklyn, or Cardozo. The competitive nature of the law school business absolves me of the need to justify my pay, given that students can vote with their feet.

There is less foot-voting in the public sector, requiring some alternative process by which to set deferred compensation. The current procedure involves public elections of officials who negotiate on behalf of service consumers with service providers. This process works fine for highly visible officers -- say, the President or Attorney General or Congress -- because such salaries are highly salient to the public. (As a consequence, the salaries tend to be low compared to analogous private sector positions: Imagine paying the managing partner of a major law firm the paltry 200k that the Attorney General of the United States draws).

The problems with the bargains struck by this political process for less visible salaries -- cops, teachers, sanitation workers, and the like -- is that the process is insufficiently visible to insure that the taxpaying public will stand by the bargain that is struck. Instead, bargains for pensions are negotiated that are not funded. The reasons for the disparity between the negotiated bargains and the public's willingness to pay for them when the bills come due are hardly mysterious: Future liabilities do not affect current tax bills, so the public pays little attention to the liabilities that their agents incur to buy labor peace. The public sector, of course, pays close attention (just as you or I would) to the details of their deferred compensation. Rational politicians and labor negotiators, therefore, cast labor costs forward on to future taxpayers in the form of generous deferred compensation, simply because this is the politically easy thing to do. In a comment on one of my earlier posts, Joseph Slater observed that arbitrators in a plurality of states must consider factors like "the amount of pay it takes to get and retain competent employees." These substantive criteria, however, will place no real constraint on pay just so long as taxpayers are inattentive and public sector unions are closely attentive.

The goal, therefore, should be neither to lower or raise public sector pay. The goal, instead, should be to create a more transparent process of negotiation to insure that public sector's deferred compensation matches real voter demand for the public sector's services at the moment that the bargain is concluded. Why not use the procedures for approving bonded indebtedness as a model? Since the 19th century, state constitutions have required referenda to approve bond issues over a certain level (usually measured against percentages of the jurisdiction's property tax valuation) as a way to avoid the sort of inter-temporal externalities that elected leaders are prone to impose. True, there are ways to evade these limits, but these evasion techniques usually involve identifying some revenue stream from which the bonds will be re-paid, thereby limiting the exposure of the government.

Why not likewise hold referenda on collective bargaining agreements in which the public is supplied with a fiscal note explaining the magnitude of the future pension liability being incurred? I do not pretend that such a procedure is a magic bullet and am happy to entertain alternative procedures. The important point, however, is that the public sector's deferred compensation ought to be the subject of a transparent, salient, and robust public debate in which the public sector unions are enlisted to pitch their services and requested compensation to the taxpayers when the compensation package is being negotiated. One advantage of such an open process would be that the public sector would have more of an incentive to play an "outside game" of persuading the taxpayers that higher pay will produce more professionalism and better services rather than an "inside game" of focusing on legalistic collective bargaining arcana about "steps," "lanes," "parity," and the like. After all, unless the public sector can "sell" the voters on the idea that their deferred compensation package is really necessary to get high-quality services, it really will not matter how solid their legal case might be for enforcing the pension bargain: Elected state judges are likely to bend to the current mood and allow re-negotiation.

So why not make the pitch to the voters up front, publicizing the details of the deal while it is being negotiated to assure passage in a referendum vote? A benefit of this transparency is that it would enlist the public sector to devote more energy to explaining to the public how higher compensation can buy better services -- a critical function in an anti-statist nation where public services tend to be under-valued. Such a highly publication ratification of a deal would also induce judges to take more seriously the idea that the taxpayers must stick by their bargain.

In short, all of the energy being devoted now to excoriating the public sector's past deals would be better spent on figuring out how taxpayers and service providers can bargain more transparently in the future. Public sector unions are no more greedy or corrupt than the rest of us: They will take what they are offered, just like you and me. The difference is that the negotiating process will put the public sector on both sides of the table so far as deferred compensation is concerned, because elected officials will tend to discount excessively the burden of future liabilities. Rather than scream at unions or try to wriggle out of old, bad, but arguably binding bargains, it is time for intelligent conservatives to think about procedures that can reduce that excessive discount.

Posted by Rick Hills on January 10, 2011 at 09:51 AM | Permalink | Comments (9) | TrackBack

Chick-fil-A meets Citizens United

There has been a minor dust-up, largely confined to the internet, over reports that ChikChick-Fil-A was the co-sponsor, along with the Pennsylvania Family Institute, of an event called The Art of Marriage, designed to give couples a chance to examine their marriages and what the Bible has to say about marriage. The Pennsylvania Family Institute also is leading efforts to put an anti-marriage-equality constitutional amendment to the public. Chick-fil-A insists (via Facebook) that the corporation is not a co-sponsor, but that an independent franchisee merely is donating food for the event. Of course, ChikChick-fil-A has long cultivated its image as a "Christian" company (famously being closed on Sundays); and the company, and its charitable arm, the WinShape Foundation, have been linked to a number of religious-conservative and anti-marriage-equality sources, including Focus on the Family. Implicit in the controversy is the  suggestion that, by patronizing Chick-fil-A (full disclosure: it is my absolute favorite fast-food chain and I did cartwheels when one opened on FIU's campus) one is supporting their anti-equality efforts and an appropriate response is for supporter of marriage equality (and gay rights generally) is to boycott the company.

Missing from this controversy is any suggestion that a corporation such as Chick-fil-A is wrong to sponsor political and social events (as opposed to the suggestion that it is wrong to take the position is is taking). No one is railing against its use of corporate wealth to influence a political issue. No one is complaining about Chik-fil-A drowning out other voices in the marriage-equality debate. No one is complaining that Chik-fil-A is abusing state-conferred benefits and power. No one is arguing that, because Chick-fil-A is not a person, it has no constitutional liberty to engage in these activities. No one is arguing that the state could (or should) stop Chik-fil-A from doing this. And no one is suggesting that the First Amendment has nothing to say about this type of corporate activity because it is not speech, only money.

So how do we reconcile this view of Chick-fil-A's activities with the ongoing drumbeat of criticism for Citizens United? The answer, I believe, is that this is not an election, but simply a singular event within the broader everyday public dialogue. Elections are different, uniquely important, and uniquely self-contained ("bounded") as expressive events--and the campaign-finance debate is over what we should do to recognize and acknowledge that uniqueness.

But if so, then Citizens United really is not about corporations v. natural persons, but is instead about campaign financing and the influence of expression by wealthy interests within political campaigns. And, as I argued years ago (and again after Citizens United last year), the argument against corporate speech really uses "corporate" as a proxy for wealthy, although there is no difference in terms of supposed harms (drown-out, corruption, undue influence, etc.) caused by corporate political expenditures as opposed to those by wealthy individuals. If we accept corporate expenditures on expression here, we must accept them in the electoral context--at least to the same extent as individual expenditures on expression.



Posted by Howard Wasserman on January 10, 2011 at 09:21 AM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink | Comments (5) | TrackBack

Sunday, January 09, 2011

Constitutional Crisis over Mount Laurel in New Jersey? How excessive complexity can doom constitutional doctrine.

The New Jersey Senate is scheduled to vote tomorrow on whether to approve S-1/A-3447, a bill approved by the New Jersey Assembly that would radically cut back on New Jersey local governments' obligation not to exclude low- and moderate-income housing with their zoning ordinances. The bill eliminates the Council on Affordable Housing ("COAH"), the statewide agency charged under the 1985 Fair Housing Act with overseeing compliance with Mount Laurel obligations. More significant, the bill's new methodology for implementing Mount Laurel would require N.J. local governments to accommodate only an estimated 30,000-56,000 units of affordable housing. To view this number in perspective, keep in mind that the N.J. Appellate division struck down COAH's last set of regulations that required local governments to accommodate 115,666 units.

Despite S-1/A-3447's radical reduction in local governments' Mount Laurel obligation, Governor Chris Christie has vowed to veto the bill because it does not go far enough in eliminating local governments' duty not to exclude poor people. As I have noted before, this is an odd position for a Republican governor to take, because Mount Laurel is, at its core, a libertarian doctrine that eliminates excessive regulation of housing markets. Zoning regulations are impose outrageously costly mandates on developers to (for instance) build single-family houses on ten-acre lots, on the theory, apparently, that the public health and welfare requires that each household have ten football fields of lawn on which to cavort. Given that Christie purports to dislike Big Government, he ought to love Mount Laurel's libertarian attack on the most meddlesome regulations of all. Christie claims that he is attacking Mount Laurel in order to defend the sacred right of local government in New Jersey, but this gubernatorial defense of local autonomy seems a little threadbare, coming from a politician who capped local property taxes at 2%. If the state can limit taxes in the name of private freedom, then why can the state not also limit zoning as well? It seems that local autonomy only matters for Christie when it can be used to keep poor people out of the 'burbs, not when it can be used to make homeowners pay a higher tax bill.

But I digress. The real news is not Republican hypocrisy about Big Government but rather the impending constitutional crisis in New Jersey. Will the Court back the Appellate Division and stand up to the combined forces of the state legislature and governor? Or will the Court cave? After the jump, I will suggest that the New Jersey courts have made the judicial defense of Mount Laurel much more difficult by making the doctrine itself so complex.

The legal formulae on which each municipality's "fair share" is based are horribly obscure: they rely on complex data-driven statistics about future employment, numbers of substandard housing units, and rates of residential conversion. One is at a loss to describe these formulae concisely, let alone defend them. (I attempted to do so for my students in land-use regulation with this attached memo (Download memo), with mixed success: It took me fifteen single-spaced pages, complete with sample calculations). These formulae were calculated by three appellate division judges (Skillman, Gibson, and Serpentelli) who were trying to put flesh on the bones of the New Jersey Supreme Court's command that each municipality accommodate a "fair share of the regional need for low- and moderate-income housing." Unfortunately, the judges forgot that courts have a duty not only to reach the right result but also explain that result intelligibly to the public: Reducing the Constitution to a prolix code that the public can scarcely understand is a surefire way to lose public backing for one's opinions -- or so I am told by one prominent jurist.

If Mount Laurel falls, therefore, some of the blame must rest at the feet of a judiciary that lost sight of the prime directive of constitutional doctrine: Keep the principles simple enough to put on a tee shirt. Durable doctrine requires some memorable ringing phrase from which the mass of constitutional details can be easily deduced: "One person, one vote," "Separate is inherently unequal," "beyond a reasonable doubt," and so forth. "Fair share of the regional need for affordable housing" suggests the morally and empirically muddled world of quotas and statistics that conceals the libertarian and egalitarian virtues of Mount Laurel.

Could the basic principles of Mount Laurel be implemented more directly and simply? Perhaps -- but such implementation might require the New Jersey courts to challenge the legacy of Euclid v. Ambler Realty by stating in a forthright fashion that the banning of multi-family housing from residential zones serves no legitimate purpose. Such a doctrine, to my libertarian ears, has a nice ring to it. But New Jersey homeowners might feel differently about the matter, and one can forgive New Jersey judges from arousing the ire of the homeowners by threatening the sanctity of the residential zone that allows only the single-family detached house.

A less inflammatory doctrine would cleanly and simply strike down minimum lot sizes that served no purpose in protecting health and safety. Oddly, Judge Skillman, champion of Mount Laurel, has actually upheld a zoning ordinance requiring a ten-acre minimum lot size, justifying the law as a legitimate way to preserve a community's "rural character." I would suggest that this solicitude for egregiously costly zoning in pursuit of dubious aesthetic goals like "rural character" undermines both the housing market and the environment, requiring individual homebuyers to be land gluttons with a useless ten-acre field in order to build a single structure and thereby encouraging pointless sprawl.

Why not draw a line in the sand against such wasteful regulation? True, such a line would be judicially "activist -- but no more so than the complex arithmetic of Mount Laurel. And, unlike that impenetrable math, such simple per se rules would be a lot easier to understand and defend. Christie can easily denounce (as he did) "some arbitrary, ridiculous formula that nobody could ever explain": Will he be able to defend with equal ease a zoning law that requires a family to buy ten acres of land in order to have a home? I suggest that the libertarian merits of a judicial ban on such zoning will be harder for Christie and other fairweather friends of de-regulation to attack, because those merits are easier for everyone else to see.

Posted by Rick Hills on January 9, 2011 at 03:31 PM | Permalink | Comments (6) | TrackBack

Friday, January 07, 2011

The Agnostic Age: Introduction on SSRN, and Saturday Events

Of the promoting of books, Ecclesiastes writes in the KVJ:DE (King James Version: Director's Edition), there is no end.  I am told that The Agnostic Age: Law, Religion, and the Constitution does not officially come out for a few weeks yet.  (No reason not to pre-order it: it makes a splendid Valentine's Day gift!).  In the meantime, however, I would like to offer a link to the introductory chapter of my book, which Oxford University Press has graciously allowed me to post on SSRN.  It gives a fairly good flavor of the argument, the approach, and the style of the rest of the book.  You are welcome to it, and I hope you enjoy reading it as much as I enjoyed writing it.  (And, of course, that you buy the book.  Aside from my interest in sparking dialogue and productive, neighborly conversation, baby needs a new pair of college funds.)

For those who are interested in these issues, let me flag two events tomorrow.  First, those attending the AALS conference may wish to attend the Law & Religion Section program, "Law and Religion in a (Post-) Secular Age."  The speakers will be Charlton Copeland, Emily Hartigan, Andy Koppelman, and Ayelet Shachar.  It promises to be an excellent program.  The bad news is that it will be on Saturday morning at 8:30 am (in the Hotel Nikko, Monterey I).  The good news is that by Saturday morning you may actually be bored of schmoozing and hanging around in the lobby, so why not actually attend a great discussion?

Second, Saturday is also the 2011 Conference on Christian Legal Thought, sponsored by Lumen Christi and the Law Professors' Christian Fellowship, at the Hotel Monaco San Francisco.  This year's conference is organized around new books on law and religion (and, obviously, law and Christian thought), and the authors of a number of terrific recent books will be speaking--as will I.  There is a registration fee, but anyone interested in questions of law and religion will find it worth his or her while.  I hope to see some of you tomorrow at one or both events.   

Posted by Paul Horwitz on January 7, 2011 at 11:21 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Reading the Constitution as Duty and Theater

Understandably, a lot of blog posts have been written about the opening ceremonies of the new Congress yesterday, which included the reading of the Constitution (or some of it, anyway).  On his blog, Tim Sandefur writes that "this symbolic move is refreshing to those of us who take the Constitution seriously, and it’s sad to see that some people find it objectionable."

If it makes Sandefur feel better, at the AALS program on the Tea Party and the Constitution that I attended yesterday (I missed some of it but heard reports of the rest; congrats to Richard Albert of BC for putting together a great panel), most of the panelists, who ranged from left to right, felt just fine about the reading of the Constitution.  The view expressed was that taking the Constitution seriously, and making it a part of the public dialogue, can't be a bad thing.  This should be unsurprising to constitutional law profs.  In contemporary constitutional theory, elitist constitutionalism prevails in practice, but popular constitutionalism is popular in theory and in the standard current scholarly rhetoric.

I would like to add my thoughts to this discussion.  They amount to two cheers for reading the Constitution aloud on the House floor.  The crux of my position is one I have written about, more or less, elsewhere, and hope to expand on in a series of articles over the next couple of years.  What is valuable about the Constitution-reading exercise is not its connection to popular constitutionalism, but its connection to the idea of reading the Constitution as an indefeasible individual duty for office-holders.  Members of Congress take an oath to "support this constitution."  The oath, like all oaths, binds them--morally, spiritually, by dint of honor, however you want to phrase it--individually, not as members of parties, representatives of states or the voters, or members of the Tea Party or any other political movement.  

In keeping with the political rhetoric of the movement and the moment, the Constitution-reading exercise has been linked to a popular restoration of the Constitution, or perhaps a restoration of a popular understanding of the Constitution.  But those members who took the constitutional oath have an independent obligation to read, understand, and act on and according to the Constitution themselves.  The Constitution-reading exercise may have been formed in the crucible of a populist movement.  But it is also a moment of elite constitutionalism, inasmuch as those members have taken an oath to "support this constitution" -- not the one they would like to have, but not necessarily the one their Tea Party followers would like to have either.  The members are obliged to engage in a conscience-driven effort to apply the Constitution as they understand it, regardless of whether that understanding departs from popular or populist understandings of the document.

I am not offering a substantive reading of the Constitution here.  I'm not saying it is necessarily different in meaning from what the Tea Party, the New York Times, the median voter, or anyone else thinks it means.  What is important to me is not the meaning of the Constitution, but the fact that those oath-taking members who symbolized the importance of the Constitution by reading it aloud must decide for themselves what it means--and act accordingly.  They cannot let Erwin Chemerinsky, a majority of voting members of the Supreme Court, David Barton, Glenn Beck, Rachel Maddow, or anyone else tell them what it means.  If reading the Constitution aloud was not just pure political theater, it must have been a call to individual duty and the individual conscience of the members.  If its "symbolic" importance was to take the Constitution seriously, then that must mean the members must take it seriously as individual oath-takers.  It means that whether or not they engage in a popular "dialogue" about constitutional meaning, in the final analysis they must each follow their own understanding, regardless of whether that understanding pleases or disappoints their constituents.  

In those terms, the reading of the Constitution raises some questions for those members.  For one thing, it requires them to think about the method by which they will read and understand the Constitution.  If they follow the pure text, will they reject Justice Scalia's understanding of the Equal Protection Clause as not requiring women's equality, given that clause's plain textual meaning?  If they take an original public meaning view, how will they interpret the relatively power-limiting provisions of the original Constitution when read in pari materia with the Civil War amendments, and which public understanding will they treat as authoritative?  Where the document is unclear, what devices should they use to break through any ambiguities, and against what background understanding will they resolve those ambiguities?  If they take a strong view that the Constitution demands a highly limited government, will they follow their duty loyally, or will they follow it only selectively, as appears to be the almost certain result?  Will they see it as their duty to cut back on every law that they believe exceeds Congress's constitutional power, or only those they believe to be politically expedient to cut back?  If the latter, what does that say about their understanding of their constitutional obligations as oath-takers?  If they think popular or judicial understandings of the Constitution are somehow interpretively relevant, what does that say about their theory of the sources and "evolution" of constitutional meaning?  

These are all serious questions.  Again, I do not mean to point to a substantive answer.  I want to do only two things.  First, I want to caution against an over-reading of the reading of the Constitution on the House floor as a popular, populist, and/or symbolic moment.  The oath-taking members have an obligation to understand and support the Constitution, but that obligation is individual and indefeasible.  If they are actually cognizant of their oath-bound status, they ought to understand the reading of the Constitution as being as much about their individual duties as "elite" readers of the Constitution as it is about popular constitutionalism.  Second, I want to point out that if the members take that duty seriously, then they are about to embark on the same interpretive exercise that any serious reader of the Constitution undertakes, and they will be going places that no popular movement (and, equally, no set of instructions from the liberal elite) alone can take them.  If they are serious about their duty, they will follow it whither it leads--including into political oblivion and, if fate so provides, even political and economic disaster.  If they are not, they will be that all-too-common type: politically successful, pragmatically oriented political leaders with a highly imperfect loyalty to the Constitution.     

Posted by Paul Horwitz on January 7, 2011 at 11:08 AM in Paul Horwitz | Permalink | Comments (5) | TrackBack

Thursday, January 06, 2011

Tonight!!! The annual Prawfs/Co-Op AALS Happy Hour in SF will be Thursday Jan 6th, 2011, 9pm-1130pm

Bumped to the front for today:

Please join us and our pals from Concurring Opinions tonight at our annual happy hour at AALS. This year, we'll be gathering in San Fran on Thursday January 6th around 9pm at the Cityhouse Bar in the Parc 55 Hotel.

There will be some drink specials on wine/beer/cocktails; hope you'll join us in the ceaseless joy.


Posted by Administrators on January 6, 2011 at 02:12 PM in Blogging | Permalink | Comments (1) | TrackBack

Seeking retributivist reactions to Ohio mass murderers plea deal

As detailed in this post at my home blog, a high-profile Ohio multiple murder case is now a sentencing story after Matthew Hoffman pleaded guilty this morning in the horrific dismemberment slayings of a Knox County woman, her son and a family friend.  As detailed  detailed in this local story, in addition to mass murder, Hoffman  was also  child rapist who violated, bound and gagged a 13-year-old girl in the basement of his home after his triple murder.  But Hoffman is not facing the death penalty: "Knox County Prosecutor John Thatcher said that the indictment did not contain death-penalty specifications in accordance with the wishes of the victims' families."

Given my utilitarian perspectives on punishment and sentencing, I have mixed feelings about the worst criminals cutting deals to avoid the worst punishment and also about the "wishes" of victims playing a central role in prosecutorial and sentencing decision-making.  But, as the title of this post indicates, I am blogging about this case in the hope of hearing from (devout?) retributivists about what they think about these kinds of plea deals. 

I know Kant thought all murderers deserved the punishment of death and also that some modern retributivists categorically believe, in sharp contrast to Kant, that even the worst mass murderers never deserve death.  But assuming there are some committed retributivists who believe that death is a deserved (or at least justifiable) punishment in some case, I wonder about the retributivist reaction to a decision to take death off the table as part of a plea deal that was prompted by "the wishes of the victims' families."

Posted by Douglas A. Berman on January 6, 2011 at 11:57 AM in Criminal Law | Permalink | Comments (1) | TrackBack

The Agnostic Age: Law, Religion, and the Constitution

I'm pleased to say that my book, The Agnostic Age: Law, Religion, and the Constitution, is now available from Oxford University Press.  The Oxford website for it is here, and the Amazon page is here.  If you are at the AALS convention, a copy should be available to peruse at the Oxford booth; I will also be talking about it at the Lumen Christi conference on Saturday.  I will be posting the introductory chapter on SSRN and will give the link once some technical difficulties have been worked out.  

I hope that the book will be interesting not only for readers who have a special interest in law and religion, but also those who are more broadly interested in questions of religious truth, of the relationship between religion and liberal democracy, of the standard and tedious debate between the New Atheists and the Anti-New Atheists, and other issues.  If nothing else, it cites both Star Trek--the old Trek, of course; none of your next generations for me--and Highlander, so you know it is a serious scholarly work.

I'm sure I'll have occasion to hawk the book talk about the book here over the next few weeks.  I thought I might offer up the blurbs in the hope of whetting your appetite.  Of course, I agree with everything they say, and find it interesting and perhaps a little hopeful that each reader has, in a sense, found elements of the book that call to their own sensibilities.

"This is a powerful, learned, eloquent and wonderfully accessible account of the multi-layered and intractable tensions between religion's commitment to doctrinal truths and the liberal state's commitment to a non theistic--which does not necessarily mean anti-theistic--political order. Professor Horwitz takes the reader on a tour of the scholarship and the issues as he makes his way through the minefield of the establishment and free exercise clauses with ease, good humor, and an infectious spirit of optimism." 
--Stanley Fish 
Davidson-Kahn Professor of Law and Humanities at Florida International University 

"Taking truth (and therefore doubt) seriously-that's the central theme of this engaging book. In the midst of religious pluralism, a few scholars say our law of religious freedom must be based on what we believe to be true; more often, judges and scholars insist that our law must be detached from or 'neutral' toward religious truth. Professor Horwitz analyzes the problems with both positions. He proposes an alternative strategy which recognizes that we must act on what we believe to be true but that all our truths are profoundly contestable--and contested. This is a lively, insightful, and provocative book." 
--Steven D. Smith, Warren Distinguished Professor of Law, University of San Diego 

"The confident predictions of religion's decline and disappearance have proved badly misguided. It is true today, as it always has been, that religious faith, commitments, authority, and activism matter to people, to communities, and therefore to the law. In this thoughtful, engaging book, Prof. Horwitz proposes that our law and politics should appreciate religion's importance and distinctiveness and take its truth-claims seriously. As he explains, a secular government that is appropriately agnostic toward these claims nevertheless may and should cherish and protect religious freedom." 
--Richard W. Garnett 
Professor of Law and Associate Dean 
Notre Dame Law School 



Posted by Paul Horwitz on January 6, 2011 at 10:05 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Reading Madison in Washington

Today's Reading of the Constitution has turned into something of a political litmus test--Republicans love it, Democrats ridicule it as a stunt.

The problem is that discussion of the reading is being conflated with the proposed new rule requiring that all legislation cite its underlying constitutional authority, which some liberals and liberal scholar supprt (and even would like to extend, or at least take seriously). I particularly like Mike Dorf's suggestion that they should have to point not only to the source of authority, but also explain why a piece of legislation does not run afoul of external limits on legislative power (say, the First Amendment). It would end the practice (often traced, fairly, to robust judicial review) of Congress passing symbolic legislation it knows to be probably unconstitutional, seeking the political benefit while knowing that the courts are going to knock it down.

But I see today's event as little more than a stunt because it accomplishes nothing of substance--and I am not sure it is intended to do so. I will give members of Congress credit that they are passingly familiar with the Constitution (at least the parts they like), so this is not going to educate anyone about something they don't already know. The constitutional language is, quite deliberately, vague and ambiguous--so much so as to be meaningless from the simple five-minute reading of text alone. The assumption from the organizers of this event is that the meaning will self-evident to all from a simple reading aloud; it's not. It is not as if someone is going to have some interpretive epiphany--"oh, oh, oh, I get it, Congress has the power to regulate commerce 'among the several States'" or "oh, oh, I get it, Congress has the power to 'enforce . . . the provisions' of the Fourteenth Amendment."  Nor is this designed to begin some great legislative conversation on constitutional meaning or interpretive approaches.

So to reject today's reading is not to reject or belittle this new project of getting Congress to engage with the Constitution. It is, instead, to wish they would do it in a grown-up manner.





Posted by Howard Wasserman on January 6, 2011 at 08:31 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

Wednesday, January 05, 2011

For AALS People: Welcome and While You Are Here...

I can't give you all my secrets, but here are some places you might want to try while you are in SF:

Bar Agricole (upscale bar food that impresses and interesting cocktails: get the aged r(h)um)

Local Mission Eatery (classic SF localvore scene and quality sandwiches for lunch; Knead Bakery at the back will blow your mind if you eat the croissant, the almond twist, and/or the custard thing in a flaky shell with a French name)

Flour and Water (our best pizza offering but the whole restaurant shines: go early or late for dinner)

Piqueos (Peruvian -- more a neighborhood place but really quite good)

Mangosteen (Vietnamese: an amazing lunch at shockingly low prices -- not as low as the simply unreal Saigon Sandwiches, but without the line)

Bar Bambino (Italian wine bar with traditional fare)

Il Cane Rosso (lunch from D-Patt's brain, since you can't afford Coi and don't have patience to get all the way to Oakland for Plum, which is worth the trip, mind you)

Commonwealth (molecular gastronomy and wild creativity at normal prices)

Beast and the Hare (small plates, all delicious)

Tartine (pastries from heaven: get a morning bun; the sandwiches for lunch amaze too and will help you understand why there is a week's long waiting list to get a loaf of bread)

Schmidt's (beer and sausages)

I could go on.  Please enjoy.  Don't forget to pick up good coffee beans from either Four Barrel or Blue Bottle before you leave town.  Blue Bottle's best bean blend: Bella Donovan.  And, really, don't deny yourself the pleasure of Bi-Rite Creamery for ice cream.  And follow Chairman Bao for buns, if you can. 

Posted by Ethan Leib on January 5, 2011 at 07:32 PM | Permalink | Comments (9) | TrackBack

Filibuster Reform Proposal

The Senate Resolution on filibuster reform, chiefly sponsored by Sen, Udall., has been filed (H/T: Law Courts ListServ). The motion is far narrower than most filibuster critics would have liked. Importantly, it does not change the basic power of 41 Senators to halt all action on legislation and nominees--no conversion from a mechanism of stopping action to one of delaying action, no change to require an ever-decreasing number to invoke cloture in subsequent motions, no elimination of the filibuster on executive or judicial appointments.

It makes two important (in my view) changes. First, it completely eliminates anonymous holds, specifically the practice of one senator placing by name a hold on behalf of another senator who wished to remain anonymous. Everyone involved in the hold must be named. Of course, it does not eliminate the practice of holds, thus a single senator can stop nominees from even coming to vote, meaning a single senator still can defeat nominees. I am not sure that the loss of anonymity is going to change the practice--I think a Tea Party Senator is going to take pride in stopping some "activist" from taking the bench (and vice versa when the Republican are back in the majority).

Second, the new rule brings back the Mr. Smith/Strom Thurmond talking filibuster ((I previously argued for this change, although new scholarship and the events of the past two years have moved me to want greater reform). But the proposal does so in a way that truly places the onus on the filibustering minority.

Under current rules, if a cloture motion fails, "debate" continues unless the majority suspends consideration of the matter and moves on to other business--which is always what happens. Largely, I think, because if the majority did force a talking filibuster, the burden would have fallen largely on the majority party. If Mr. Smith held the floor, the majority would have had to remain on the floor while he spoke (while Smith's supporters could have left and gone home or to their offices to rest). If a sufficient majority does not remain in chambers, Smith could suggest the absence of a quorum, leading to a quorum call, during which he could stop talking.

Under the amended rule, an unsuccessful cloture vote leads to a period of "continuous debate" on the measure or other matter, continuing as long as the matter remains pending business. During continuous debate, if a Senator has been recognized, there can be no motions or quorum calls--the Senator (and those in the supporting minority) must hold the floor and continue talking. If no Senator seeks the floor, the period of continuous debate is over and cloture shall be considered invoked. In other words, cloture can come without if an affirmative 60-person vote, but simply because the minority stops speaking (however unlikely that may be).

Of course, the majority still can bypass the talking filibuster by suspending consideration of the filibustered matter (it ceases to be "pending business") and moving on to other business, which ends the period of continuous debate. Thus, a genuine talking filbuster requires some political will from the majority. The leadership must be willing to let the filibuster halt consideration not only of the target matter, but of all Senate business. That will be entirely a political calculation for the majority: How will a true filibuster play with the public--will the public become angry that this is tying up the entire business of government so that the minority eventually gives up (see the debates over the Civil Rights Act of 1964)? Or will the majority fear that it will be blamed for the complete end to all Senate business?

It remains to be seen how the motion will play out and how the Republicans respond. Mitch McConnell derided talk of filibuster reform (assuming the proposal was elimination or radical modification of the process) as a Democratic power grab (there has been a lot of such talk today). It seems hard to call what has resulted a power grab, since it does not strip the minority party of any power to block action. It simply requires the minority to be more obvious and public when doing so.

Update: Gerard Magliocca, who has done some great recent work on the filibuster and the legislative process generally, calls the talking filibuster "basically a joke" and "entirely symbolic," because the new rule does not eliminate the current two-track system, under which the majority can suspend the "filibustered" matter and move on to other things--and usually does. I describe above as a matter of political will and still believe that the majority may be more willing to keep the matter pending knowing that it does not have to maintain a quorum. Gerard suggests the rule would be improved if it required the matter to remain pending for a minimum period after cloture is rejected. I agree that would be a worthwhile change.




Posted by Howard Wasserman on January 5, 2011 at 03:37 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (3) | TrackBack

Reading the Constitution in the House: Which provision would *you* pick?

In yesterday's edition of Al Kamen's "In the Loop" column, which appears regularly in The Washington Post, Kamen reported on his conversations with a number of constitutional-law teachers (including me) about the provision they would want to read on the floor of the House.  Pam Karlan and Michael McConnell both zeroed in on the "no religious test" clause, which made my own request for the First Amendment's religion clauses redundant (as well as uncreative).  We also agreed that it might seem a bit unserious were I to leap for the 21st Amendment, notwithstanding that provision's many virtues.  So, I went with Article V, on the theory that -- especially given the suggestion in recent days that the Constitution's longevity might count against its relevance and / or comprehensibility -- we might all do well to remember that the Constitution itself provides a mechanism (perhaps not the most effective or efficient one, but maybe that was part of the plan), other than judicial review, for its own updating.

What provision would you pick, given the opportunity for one minute of Constitution-reading, C-Span fame, and why? 

Posted by Rick Garnett on January 5, 2011 at 11:43 AM | Permalink | Comments (3) | TrackBack

The First Amendment Politics of the Roberts Court (A Panel Discussion)

Mary-Rose Papandrea has organized and is moderating an AALS panel for the Section on Mass Communication Law entitled The First Amendment Politics of the Roberts Court.  I will be speaking on the panel along with Erwin Chemerinsky  and Eugene Volokh.   We will be discussing, among other things, whether there is unifying theme among the First Amendment decisions of the Roberts Court and what the Court's decisions signify for the future of First Amendment jurisprudence.  The panel will focus predominantly on free speech and press issues in the Roberts Court.  I know I'm not ruining the suspense by saying there will be discussion of the Citizens United decision, but Garcetti v. Ceballos, Humanitarian Law Project v. Holder, CLS v. Martinez, US v. Stevens, US v. Skilling, Doe v. Reed, Morse v. Frederick, and the pending cases Snyder v. Phelps and Schwarzenegger v. Entertainment Merchants Ass'n are also likely to merit discussion.  The panel is on Saturday at 10:30 at the Parc 55 Wyhdham (Sutro, 2nd Floor).  (A brief preview of some of the remarks I expect to make is below.)

I have not finalized my remarks, but one contention I expect to make is that the Roberts Court appears to take seriously the notion that speakers are entitled to all the free speech they can afford.   I've been thinking of the theory underlying many of the free speech decisions as a kind of highly formalistic libertarianism.  The Court appears to believe strongly that the First Amendment forbids government interference with the marketplace of ideas produced by private ordering.  Absent personnel changes, this is not a Court that is going to favor structural intervention in the marketplace of ideas to fix market failures.  All speakers, whether individuals or organizations, are treated equallly to the extent they are free from government regulation of their speech; however, speakers who lack resources are not entitled to any government assistance in speaking, and the government does not need to show much solicitude for speakers on its payroll or attending its schools.  Another interesting facet is that the government itself is entitled to participate as a speaker in the marketplace, with little or no concern for whether its voice might drown out that of other speakers.  The theory is formalistic in the sense that the Court seems to treal all "inputs" into the marketplace of ideas equally, regardless of real inequalities or imbalances of power among them.

I plan to explore what implications the Court's formalistic libertarianism has for the future of broadcast regulation and the treatment of new media speakers.  I also want to address US v. Stevens (the dog fighting video case) and the Court's seeming unwillingness to reopen the categories of speech "unprotected by the First Amendment," though I'm still struggling to fit the case into the broader themes of the Court's jurisprudence.  And I doubt if I'll be able to resist discussing Snyder v. Phelps (the Westboro Baptist Church funeral protest case), which deals with my favorite legal intersection (of tort law and the First Amendment).     


Posted by Lyrissa Lidsky on January 5, 2011 at 10:20 AM in Constitutional thoughts, First Amendment, Law and Politics, Lyrissa Lidsky | Permalink | Comments (2) | TrackBack

Judicial term limits

I am not, as a general matter, a fan of term limits for political offices. I was opposed to the various proposals for legislative term limits when that issue was hot in the 1990s, even recognizing the recent scholarship showing that the voters really don't hold legislators accountable for unpopular policies or poor performance. I have never known a world without executive term limits, although my sense is that the typical 8-year imposed limit reflects the realistic lifespan of most executives, making formal limits less necessary.

But I am warming to the conclusion that judicial term limits may be appropriate--indeed the only appropriate solution to the question of judicial retention and tenure. If the judiciary is unique among  political offices, then term limits may be uniquely appropriate as to judges but not other political office holders.

Right now, we have two basic approaches, although with some gradations in between. At one end is life/good behavior tenure. perhaps limited in some state by a mandatory retirement age. At the other end is some form of election-based process (whether through direct contested election processes,  the "Missouri Plan" of merit selection and retention election, or simple executive appointment and retention election). Accepting (as I do) that we want judges immune from popular and electoral pressure, particularly in constitutional cases, any form of election becomes unacceptable. What happened in Iowa in October is not a good thing in a constitutional democracy. And that is so even if judges are retained in the overwhelming majority of situations and even if such mass non-retention is extraordinarily rare and requires large amounts of money and a uniquely polarizing (pathological?) decision or event. And while Ian's proposal (a supermajority vote for non-retention) is an interesting one, it is susceptible to the argument levied against Article V--it makes popular constitutional change not only difficult, but virtually impossible. My preference instead is to do away with all elections--indeed with any retention processes in which a judge can be subject to removal because the public and/or popular branches of government disagree with some decisions.

But many people have soured on life tenure (if they ever supported it in the first place). As many others have argued, increased life spans, the professionalization of the American judiciary, the increased power that comes with robust judicial review, and the relative ease of the job together make life tenure just that, with 30+-year terms increasingly the norm. Plus, modern academics are more aware of political entrenchment and its harmful effects. And that is before we get into concerns about incompetent judges (in the sense of being bad at the task of judging) and judges who, because of age or infirmity, no longer are physically or mentally capable of doing the job. And I do not even discuss "judicial abuse," which is impossible to define and usually in the eye of the beholder.

So that leaves some system of term limits as the only way to ensure the necessary judicial autonomy and independence without sacrificing all accountability. I am not suggesting anything new, obviously--this is the cornerstone of the proposal to reform SCOTUS. I am slowly coming around to that term-limits proposal, although I continue to wonder what we should do about lower-court judges (especially on the court of appeals) who arguably exercise greater power than the justices and who are not accounted for in reform proposals. The recent events in Iowa have brought me to the view that something similar is necessary at the state level--although again, we have to consider whether to treat judges on the highest courts different from judges on lower courts and what the precise details should be.

I agree with some of the commenters to Ian's post that judicial selection (in the sense of initial selection to a vacant judgeship) is a political (and even partisan) process; that is not going to change. But initial selection is beside the point; for purposes of judicial independence and autonomy, the real issue is retention. The point is to take politics and partisanship out of retention and tenure, thereby leaving judges (once on the bench) free  exercise their independent judgment with "that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."  Judges should not be subject to any retention mechanism in which popular disapproval of a decision (especially a constitutional decision) can be, even silently, a basis for removal. Term limits provide judges the additional security of knowing they will maintain and exercise that independent spirit for a definite and defined period of time.



Posted by Howard Wasserman on January 5, 2011 at 08:36 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Tuesday, January 04, 2011

End of Times?

Had I not just finished reading Paul Boyer's fascinating book When Time Shall Be No More: Prophecy Belief in Modern American Culture, I probably would have missed this notable news item.  Dead birds falling from the sky by the thousands?  Really?  Wtf?  Where are we on the Homeland Security Advisory Color Wheel?  Is this a time for the exercise of emergency executive powers?  Supersonic weapons testing?  Or does God no longer love America?  Seriously, though....5,000 birds fell out of the sky?  Help me to know why....

Posted by Ian Bartrum on January 4, 2011 at 06:21 PM | Permalink | Comments (3) | TrackBack

Thursday's Con Law Panels @ AALS

Thanks to the labor strife and a host of other issues, my sense is that there have been a number of last-minute (i.e., post-program printing) changes to the composition of panels at this week's AALS Annual Meeting. One in particular that I wanted to flag (at least partially for selfish reasons) is Thursday's Section on Constitutional Law session on "American Constitutionalism in Global Perspective." The session is actually two different panels -- one on "American Constitutionalism in International Perspective," and one on "American Constitutionalism in Comparative Perspective." The panels are devoted to the ongoing debate over just how much international/comparative law should affect American constitutionalism and constitutional interpretation, and I suspect both sets of discussions will be lively, to say the least.

The "International" panel includes Mike Ramsey from the University of San Diego, Michael Van Alstine from the University of Maryland, Carlos Vasquez from Georgetown, and yours truly, and is being moderated by Mark Graber from the University of Maryland. The "Comparative" panel includes Penelope Andrews from Valparaiso, Heinz Klug from Wisconsin, Vicki Jackson from Georgetown, Kim Lane Scheppele from Princeton, and Miguel Schor from Suffolk, and is being moderated by Garrett Epps from the University of Baltimore. 

The session is scheduled to run from 2:00 to 5:00 on Thursday, in the Embarcadero Room on the third floor of the Parc 55. And I promise to say lots of nice things about Article I's Define and Punish Clause... (and then take them all back during the Prawfs/Co-Op Happy Hour later that night.)

Posted by Steve Vladeck on January 4, 2011 at 05:57 PM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (0) | TrackBack

Prop 8 and buck-passing

The three -judge panel sitting on the Prop 8 case has decided to certify the standing issue to the state Supreme Court.  For those of us who were watching the oral argument, it was clear that the panel was very proud of itself for having found this further delay tactic.  I don't suppose anyone will be terribly upset by this buck-passing, though no party was particularly enthusiatic about it when Reinhardt suggested that they may bring in the state court.

True enough, Ginsburg intimated in Arizonans that underlying state law might be able to attempt to confer standing (and that case observed that there was no such law in Arizona).  But it is very hard to squeeze out of Arizonans a real opening to find standing for the proponents here based on non-existent state law in California (if state law can overcome the federal constitutional hurdle).  Certification works well, it would seem, when there is some outcome-determinative state law at issue that is unclear.  In the case that will now be before the state Supreme Court, the federal court has invited it to simply make up new law whole cloth -- with no real sense from Arizonans that it really will be outcome-determinative, whatever the state court decides.  Certification is fun for law geeks but it really seems counter-indicated here.  The best explanation for the 9th Circuit decision is not legal but political.  If the 9th Circuit can dilly-dally just long enough, we may be able to moot the Prop 8 federal case with gay marriage in California before it gets to the US Supreme Court.

Posted by Ethan Leib on January 4, 2011 at 04:15 PM | Permalink | Comments (7) | TrackBack

Remember Jose Padilla? (Apparently, the Eleventh Circuit Doesn't...)

Bobby's post about the still-outstanding decisions of the Court of Military Commission Review in the Hamdan and al-Bahlul appeals reminded me of another important post-9/11 case that's still under submission -- the appeal by Jose Padilla and his co-defendants of their conviction in the U.S. District Court for the Southern District of Florida, and the government's cross-appeal of Padilla's (relatively lenient) sentence.

The appeal was argued before a three-judge panel of the Eleventh Circuit (Dubina, Barkett, Pryor) on January 13, 2010 -- that is, a year ago next Thursday.  (See here for a contemporaneous media report on the argument.) Given the passage of time, it seems virtually certain that someone is dissenting. But who, and on which issues? This could matter quite a lot, since Padilla's arguments also go to some of the key issues in the civilian prosecution of Ahmed Ghailani -- and any subsequent potential civilian prosecution of a former "enemy combatant." And although a one-year delay is hardly exceptional in the Courts of Appeals, it does seem odd that such an important, high-profile, criminal appeal would take so long...

Posted by Steve Vladeck on January 4, 2011 at 11:02 AM in Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Monday, January 03, 2011

That Time of Year

I handed in my grades today, and although my 1L class probably performed as well as any class I have ever taught (for reasons I may explain in a later post), I still had one of those heart-wrenching moments that we all have from time to time. When I finally saw the names that went with the exam numbers, I realized that there were students who consistently worked extremely hard, came to my office for extra help, and had me review written practice exams but nonetheless didn't perform up to potential. I know these hard-working students will be disappointed, and I know I'll be asked to help them understand what, if anything, went wrong. What do I say? I can go over a student's exam and highlight what is missing, but I don't necessarily have that crucial tidbit of advice that will ensure that next time will be different. And why should the student accept my advice at this point anyway? After all, the student did everything I asked him or her to do in the 1L semester, to little apparent effect. I've experienced this phenomenon over and over, and it never gets any easier. I have a series of things I say to soften the blow and help the student realize that he or she doesn't go through life with one Torts grade branded on the forehead. But it continues to be one of the hardest parts of this job.

Posted by Lyrissa Lidsky on January 3, 2011 at 10:06 PM | Permalink | Comments (15) | TrackBack

Teaching Dreams ... and Nightmares

Happy New Year, everybody!  I'm delighted to be back at Prawfs for January and am looking forward to seeing other law profs at AALS.  Although I won't be dressed in black, I will be mourning the imminent death of my fall sabbatical.

Spring semester must be approaching, because I had my first teaching dream in months.  In this dream nightmare, it was the first day of class.  There weren't enough seats, so students were sitting on the floor and on my desk.  The AV equipment was limited to an inoperative overhead projector.  My suit coat was too small, and when a distinguished alumnus suddenly appeared in the classroom, I discovered, upon shaking hands, that I was wearing an enormous pair of mittens.  A highly disappointing start to the semester ...

Do these bizarre teaching dreams happen to anybody else?

Posted by Carlton Larson on January 3, 2011 at 07:15 PM | Permalink | Comments (2) | TrackBack

What are potential "objective" metrics for assessing President Obama after two years?

As I was doing my exam grading this season, I started thinking about what grade might be justifiably given to President Barack Obama at roughly the mid-point of his first term in office.  And, in thinking about this question, I struggled to come up with potential "objective" metrics for grading a president. 

The stock market and unemployment statistics are obvious metrics for trying to assess the state of the economy, but the link between cycles in the economy and presidential activities are never uncontroversial.  The number of terror attacks or soldier deaths might be viewed as a metric of the Commander-in-Chief, though again various developments in foreign affairs cannot always be reasonably attributed to presidential decision-making.  And I have placed the term "objective" in quotes above because, of course, there surely are many metrics that would be seen in different ways by different groups (e.g., judges confirmed, government spending and debt, etc.).  

So, bringing this thinking out loud, I wonder if the Prawfs group of serial graders have thoughts about how we might -- and/or whether we should even aspire to -- develop a set of  "objective" metrics for assessing a president's success.  

Posted by Douglas A. Berman on January 3, 2011 at 02:21 PM in Current Affairs, Law and Politics | Permalink | Comments (1) | TrackBack

Happy New Year of Conferences!

Thanks to Dan for inviting me back, again, inexplicably. To kick off my current guest-blogging stint, and the new year, I'll pose this question: What anniversary conferences are we going to see in 2011? What's the over-under on conferences commemorating:

The 50th anniversary of Mapp v. Ohio?
The 40th anniversary of Lemon v. Kurtzman?
The 40th anniversary of the Pentagon Papers Case

This is just for starters, of course. I'm sure my fellow prawfs or law review editors can add to the list....

Posted by Jessie Hill on January 3, 2011 at 11:14 AM | Permalink | Comments (3) | TrackBack

Sunday, January 02, 2011

Judicial Retention and the Missouri Plan: Thoughts from Iowa

Thanks to Dan and crew for inviting me back, I’m thrilled to be here.  I am just about to send out a short online-type piece explaining some of my thoughts about the judicial retention elections last month here in Iowa.  As you probably know, a coalition of social conservatives managed to vote out the three Iowa Supreme Court justices that were up for retention last month.  This, of course, was a retaliation vote for last year’s unanimous decision upholding same-sex marriage.  The story of the campaign is certainly interesting enough: Nearly a million dollars in anti-retention support money flowed in from out of state, and several Iowa churches openly defied the IRS by campaigning vigorously against the judges.  In the end, the anti-retention forces got the support of the simple majority necessary to oust the three justices on the ballot.

And the fun has continued even after the election.  Anti-retention leader Bob Vander Plaats—a failed gubernatorial candidate and former high school principal—likened the remaining justices to “teens who flee a beer party” and called on them to “do the honorable thing [and] share the punishment of their peers” by resigning.  I kid you not.   The justices responded by electing Mark Cady—author of the same-sex opinion—to be their new Chief.   Besides the obvious substantive statement, Cady’s elevation has a certain political irony.   He was appointed back in 1998 by former Republican Governor Terry Branstad, who came out of retirement to reclaim his old office on the same night as the judges’ ouster.  This time around, Branstad has made it disturbingly clear that only certain political viewpoints need apply for the Supreme Court, reportedly warning the judicial nominating commission that “only candidates who respect Iowa voters’ rejection of last year’s same sex marriage ruling should be considered." 

Aside from the all the ugly politics, the retention election has gotten me thinking about the structure of the Missouri Plan for judicial selection, which Iowa (like many states) has adopted.  Pursuant to Iowa’s version of the Plan, a nonpartisan nominating commission forwards three names to the Governor, who then makes a selection.  The judge then appear on the ballot periodically for a simple majority retention vote by the people.  This past election has, I think, demonstrated a certain weakness in that structure.   It seems problematic, to me at least, that judges who are charged with protecting the constitutional rights of (sometimes unpopular) minority groups should face retribution at the hands of a simple majority of voters.  We wouldn’t let a simple majority change the Constitution—that, after all, requires a heightened demonstration of political will—but we do allow them to tyrannize the constitutional court.  My modest suggestion is that a non-retention vote should require some kind of supermajority to succeed.  This, I think, would help ensure that it is truly “the People”, not some temporarily coalesced majority, which has the authority to say when a judge has overstepped his or her constitutional bounds.  But maybe that’s a bad idea—and, if so, I’m sure you’ll let me know why.


Posted by Ian Bartrum on January 2, 2011 at 05:07 PM | Permalink | Comments (12) | TrackBack

Rotations and Sundry

Happy New Year everybody. It's hard to believe Prawfs will be turning six this spring. How did *that* happen? Sunrise, sunset...

In truth, it would be impossible for this sprezzatura to exist without the wonderful guests who join us each month to share their wit and insight. As always, I'm grateful to this past month's contributors, who will be making their exit over the next few days.  Additionally, I wanted to take a moment to introduce Mary Anne Franks from UMiami, who is making her debut at Prawfs this month, and to welcome back three other guests for the month of January: Ian Bartrum (Drake); Carlton Larson (UCDavis); and Jessie Hill (Case). We're thrilled to have you here!

With the new year,the AALS annual meeting is around the corner and that means it's time for the Prawfs community to come together in person to hoist a glass of cheer with our friends from Concurring Opinions and other blogs. Please join us for some drink specials in San Francisco this Thursday evening from 9-1130pm or so at the Parc 55 Hotel Bar "Cityhouse."

Last, later this month, on Jan 25th from 4-6pm at Brooklyn Law School, Mike Cahill and I will be hosting the first colloquium in our monthly NYC criminal law theory series to take place at BLS and NYU this coming year. We're thrilled to have papers by Claire Finkelstein (Penn) and Adam Kolber (BLS) to kick things off, and future presenters will include Doug Husak, Miriam Baer, Kyron Huigens, Marc DeGirolami and Stuart Green. We think we invited most of the extended NYC and area crim law theory people we know about but if you're interested in attending this session or the future iterations, please drop me an email. Happy new year again to all our contributors and readers. May the new year bring purpose and possibility for all good things.


Posted by Administrators on January 2, 2011 at 12:43 AM in Blogging, Criminal Law | Permalink | Comments (0) | TrackBack

Saturday, January 01, 2011

The corrupting effect of anti-corruption campaigns

Yesterday's New York Times featured two stories, one from Russia and the other, from New York, that illustrate the corrupting potential of anti-corruption prosecutions. A Russian handed out six extra years of imprisonment to Mikhail Khodorkovsky, former billionaire magnate chief of the now-defunct oil company Yukos. Meanwhile, New York AG and governor-elect Andrew Cuomo settled a civil suit against Steven Rattner, financier and political insider accused of participating in a kickback scheme to win business investing New York's pension funds. Neither Khodorkovsky nor Rattner were angels: Both had, at the very least, been mired by a general culture of "pay-to-play" crony capitalism. But both also were arguably singled out for being vocal opponents of the government. In Khodorkovsy's case, it seems to be indisputable that the entire prosecution was an effort to eradicate one of Putin's more vocal political enemies. In Rattner's case, Cuomo's office retaliated against Rattner for defending his reputation out of the courtroom in a transparent effort to tarnish his reputation with misleading leaks of testimony, declaring that "when [Rattner] was questioned under oath about his pension fund dealings, he was much less talkative, taking the Fifth and refusing to answer questions 68 different times.” Given how easily loose talk under oath can land a hapless witness in a perjury prosecution, one can only be amazed at the sheer effrontery of Cuomo's press release: Of course, Rattner kept mum. Cuomo's brandishing this normal caginess sounds unnervingly like prosecutorial catch-22. Say too little under oath, and we'll slime your reputation; Say too much, and we'll hit you with a perjury charge.

Both the Rattner and Khodorkovsky cases, in short, involve criminal or civil prosecutions against politically active magnates in which there is a plausible claim of both private misconduct and also prosecutorial vindictiveness. What can be done about such potentially corrupt anti-corruption campaigns? Although these charges are a great way to silence those people powerful enough to be effective critics of the government, the very power of the targets allows prosecutors to claim plausibly that they are enforcing the law impartially against the powerful. Is there any way to control this sort of prosecutorial discretion without giving private power immunity from the law?

Eliot Spitzer's tactics are the most salient recent American example of what I call corrupt anti-corruption campaigns. The Sheriff of Wall Street engaged in tactics that ranged from merely abusive (e.g., allegedly pressuring AIG's board into firing Greenberg for committing offenses that, as it turned out, Spitzer lacked evidence to prosecute) to the downright oppressive and corrupt (e.g., allegedly threatening former Goldman Sachs John Whitehead that "I will be coming after you. You will pay the price" for writing an op-ed piece unfavorable to Spitzer). Peter Elkind's recent book about Spitzer seems to bear out Whitehead's account of Spitzer's threat, yet, such is the popular appeal of Spitzer's bringing down the mighty, that this vicious threat against Whitehead has never posed as much of a threat to Spitzer's rehabilitation as his shenanigans as Client Number 9.

How can this sort of corrupt selectivity in prosecution be curtailed without excessively weakening government's capacity to control private power? SCOTUS seems to rely exclusively on the idea of lenity, as in Weyhrauch v. United States. But dismissing indictments is not much of a weapon when the charge itself (with its accompanying press conferences, harassing depositions or grand jury grillings, legal expenses, falling stock prices, etc.) is the weapon to intimidate political opposition. One might imagine more drastic solutions -- say, barring former prosecutors from running for elective office -- which might diminish the incentives for prosecutorial big-game safaris to fuel later gubernatorial or senatorial runs. But such de-politicization of prosecutorial office might also eliminate the zealous energy necessary to face down well-connected political or financial Bigs.

Is there a middle-ground procedural solution to corruptly selective prosecutions? Perhaps, for instance, an impartial office could publish data on rates of prosecutions to unmask partisan motivation. Perhaps the criteria for indictments in certain politically sensitive areas -- tax audits, anti-gratuity cases against rival elected officials, etc -- could be publicized more specifically. I have no idea: Criminal law and procedure are not my areas. But I'd like to hear from those who know more than I about proposals to deal with the problem of politically selective prosecution against private power. In any case, I find a disquieting resemblance between the persecution of Khodorkovsky and the sorts of anti-corruption prosecutions that routinely fuel the political campaigns of Spitzers, Cuomos, Christies, Giulianis, and other ambitious prosecutors.

Posted by Rick Hills on January 1, 2011 at 07:12 PM | Permalink | Comments (1) | TrackBack

Signing Off

As always, thanks to Dan and everyone who commented on my posts, for making Prawfs such a wonderful community.  Best wishes for the New Year!

Posted by Bill Araiza on January 1, 2011 at 03:03 PM | Permalink | Comments (0) | TrackBack