« May 2014 | Main | July 2014 »

Saturday, June 14, 2014

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.   

Posted by Paul Horwitz on June 14, 2014 at 09:15 AM in Paul Horwitz | Permalink | Comments (0)

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.

The pressure from the international community caused some movement, albeit ineffectual as it currently stands.  A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later.  This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur.  What can be done?  What should be done?  Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children.  More legal attention and monetary support should be put in place to uphold the rule of law. 

Posted by Naomi Goodno on June 13, 2014 at 05:25 PM in Criminal Law, Culture, Current Affairs, Gender, International Law, Law and Politics, Religion | Permalink | Comments (1)

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.

Matt makes the brilliant observation that the progressive critique of the tariff as a regressive consumption tax became more salient at the turn of the twentieth century, and not earlier, because by then one’s capacity to consume became more central to new notions of civic identity.  I think Matt is absolutely correct, and this is a parallel that is, admittedly, rather under-developed in my book.

I do make reference, as Matt notes, to the neo-Jacksonian critique of the tariff as the “mother of all trusts,” and thus as a form of “state capitalism” that many nineteenth-century reformers adamantly opposed.  But I don’t do enough with the literature on shifting notions of civic identity between production and consumption.  Part of the reason was because I had a hard time squaring my periodization with the historiography which frequently contends that the rise of consumer citizenship came later, generally in the mid-twentieth century.  Matt is quite right that the movement for a living wage, which many of the progressive economists I study supported, is the early version of this shift in civic identity.  I just didn’t see many of my historical actors making this connection.

What I tried to do, instead, was frame this change in civic identity as part and parcel of a broader shift in visions of state power.  Unlike the neo-Jacksonians who were critical of government from a “classical liberal” perspective, the reformers in my book were more open to the exercise of public power.  The University of Wisconsin political economist famously noted that he and his cohort of “new school” economists believed that the state was “an ethical agency whose positive aid was an indispensable condition of human progress.” In this sense, these reformers were an essential part of what historian Mary Furner has referred to as the rise of a “new liberalism” in American law and political economy. Progressive taxation based on the principle of “ability to pay” was, I argue, a key element of that new liberalism.

Matt’s observation also reminds me that part of what I’m trying to do in the book is stress the importance of pre-WWI foundations.  Nick Parrillo also draws attention to this pre-crisis institution-building.  I try to show in the book that these pre-war tasks – from laying the intellectual and emotional spadework, to creating the constitutional and legal foundations, to implementing administrative innovations (like a crude form of withholding) – were all absolutely crucial to the accelerating development of the modern fiscal state during the war, and also responsible for its resiliency after the war.  Thus, what might appear as comparatively small-scale changes (though amending the constitution was hardly small scale), were in the long duree quite significant.

Reuven Avi-Yonah raises another important, historically-specific question about Edwin Seligman and how he seemed to take an inconsistent position on the different theories underlying early twentieth-century tax policy.  Reuven rightly notes that Seligman played a major role in the 1920s and later in shaping the international tax regime based on the benefits principle of taxation, not ability to pay.

This is a critical observation.  Although I do not deal directly in the book with the development of 1920s international tax policy, I can say that Seligman and his cohort of “new school” economists did not believe that any one theory could be used transhistorically to support all tax policies everywhere.  As German-trained historicists, they firmly believed that policy was a function of changing contexts and conditions, and they were quite clear in arguing that while the ability to pay rational was appropriate in supporting progressive income and wealth-transfer taxes at the national level, benefits theory still had an important part to play at other levels of government, particular the local level.

From this, I think we can extrapolate that the new school economists led by Seligman would have been more than comfortable in using benefits theory for international tax policy, without seeing their move as somehow intellectually inconsistent.  International tax policy was fundamentally different from national tax policy, especially during the height of industrial capitalism, and thus they would have been open to alternative theoretical justifications.

Let me conclude by addressing a couple of questions raised by Susie Morse, Reuven, and Matt Lindsay about what my tale may tell us about today’s tax debates.  In the conclusion, I gesture to how the “fiscal myopia” I trace in the book may be partially responsible for why American tax theorists and policy analysts continue to fixate on the progressivity of our tax system, while neglecting how a more holistic view of the tax-and-transfer system could address issues of inequality and regressive taxation.  Susie, Matt, and Reuven each wonder whether the bias I identify has locked us into a resistance to consumption taxes and a neglect of how progressive spending can outweigh regressive revenue extraction.  The book has a rather pessimistic view, listing several reasons why we might be locked-into this bias – not the least of which is the kind of American exceptionalism that Matt identifies.

Recently, though, I’ve become slightly more optimistic about this issue.  If we’ve learned anything from American political or policy history, it’s that moments of crisis can lead to transformative changes.  And if the policy analysts are correct that the U.S. is about to face a major fiscal imbalance when entitlement spending far outstrips revenue projections, perhaps we will be able to overcome this fiscal myopia – perhaps we will see something like a VAT that can generate the revenue necessary to underwrite our commitment to a modern regulatory, administrative, social-welfare state.

We’ll have to see.  My book is just a humble story about the past – it’s not a bold prediction about the future.

Thanks again to Matt and PrawfsBlawg for hosting this discussion.

Posted by Ajay Mehrotra on June 13, 2014 at 02:02 PM in Books, Tax | Permalink | Comments (0)

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.

Elon Musk - The Summit 2013.jpg

Posted by Orly Lobel on June 12, 2014 at 08:39 PM | Permalink | Comments (0)

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 incarcerationPart 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 5Part 6Part 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.

Plea bargaining is another one of the report’s strange lacunas: despite being the dominant means by which defendants end up in prison, the term “plea bargain” is used a total of ten times in a 465 page report.* And almost all of these references consider how plea bargaining is used to by prosecutors to evade tough sentencing laws.

But it is clear how tougher sentencing laws can drive up prison populations via plea bargaining, even if time served doesn’t change: as potential on-the-books sentences get longer, prosecutors arrive at plea bargains wielding bigger and bigger hammers.

Arguably one of the Supreme Court’s most important sentencing cases is Bordenkircher v Hayes. Hayes was a minor criminal facing a two-to-ten year charge for check fraud. The prosecutor gave him a choice: take five years, or face life under Kentucky’s then-equivalent (in the 1970s) of a three-strike law if he went to trial. Hayes gambled and lost, and the Supreme Court said that the severity of the “… or else!” did not rise to the level of a due process violation.

The importance of Borderkircher was perhaps cemented by the Court's decision in Ewing v California, which upheld California’s three strikes law against a cruel and unusual challenge. Ewing’s third strike was from stealing three $400 golf clubs, and his relevant predicate felonies were borderline cases. In holding that a 25-to-life sentence for the third strike was not cruel and unusual, the Court indicated that pretty much any non-capital sentence would not face meaningful Eighth Amendment review.

Taken together, Bordenkircher and Ewing provide legislators and prosecutors with tremendous power, power that they have chosen to use in interesting ways. Ewing ensures that legislators are free to pass tough sentencing laws—and thus get that tough-on-crime political boost—without facing much constitutional scrutiny. Bordenkircher means that DAs can threaten to use those laws but don’t have to carry through on the threat—which may actually makes the legislators more willing to pass them. 

After all, if every time the prosecutor threatened someone like Hayes with life he had  to carry through with the threat, state prisons would be overflowing with petty offenders, or prosecutors would never use the tough sentencing laws (if legislatures didn't grudgingly repeal them first). But, as the report itself points out, prosecutors frequently use plea bargaining to evade these tough laws.

Or perhaps many times they don’t so much plead around them as use them to get the sentence they want. In other words, perhaps the prosecutor thinks the “right” sentence for a crime is four years. In a world without Bordenkircher and Ewing, the prosecutor may only be able to threaten, say, six years; with those cases (and the resulting laws passed by the legislature), he can threaten twenty-five. A prosecutor can churn out a lot more four-year plea deals today because of the twenty-five year threat he can credibly invoke. Time served is flat, but the number of inmates rises in no small part because of the unused threat of longer sentences.

And note that the credibility of that threat depends on the moral hazard problem that runs thorugh the criminal justice system. The Bordenkircher threat works only if it is credible: if the counties whose prosecutors make the threat had to pay the costs of carrying through on it when necessary, the threat may not be as credible. But right now, the prosecutor in effect says "take this deal, or I'll spend someone else's money to lock you up for a really long time." That's a credible threat.

Some evidence of this effect can be seen indirectly in William Stuntz's magisterial  Collapse of American Criminal Justice. He points out that in 1974, 17,000 prosecutors handled 300,000 felony cases (about 18 cases per prosecutor); by 2004, 27,000 prosecutors handled about 1,000,000 felony cases (approximately 37 cases per prosecutor). Caseloads more than doubled.** All of which points to prosecutors using bigger hammers to work through bigger caseloads.

The system is one where no-one takes responsibility. Legislators can pass tough laws while relying on prosecutors not to use them. And prosecutors can avoid full responsibility by blaming other county prosecutors for overusing the "penal commons." Moreover, this decentralized blame-shifting is only aggravated by the fact that prosecutors aren't paying for the resources they are using.

Again, the entire goal of realignment in California is to target these latter two problems: to force prosecutors to internalize the costs they are imposing. True, if the legislature passed shorter sentences--the report's preferred policy solution--the problem could be mitigated as well. But the fact that California chose to go a radically different way suggests that perhaps that policy suggestion isn't politically feasible. Or at least that other, more creative alternatives, ones unmentioned in the report, may be more viable.

So perhaps longer sentences do matter. But not in the way that the report thinks. And, as realignment indicates, this difference is more than one of semantics: by understanding better how longer sentences matter, we can craft politically-viable reforms that target the underlying problem.


*In the report’s defense, it is not unique in failing to focus extensively on plea bargaining: the Supreme Court tends to discuss only jury-trial rights (Padilla v Kentucky received a lot of attention seemingly because it was a rare decision looking at the plea process), as does most of the academic work in sentencing.

** My guess is that the prosecutor number is the total number of prosecutors, not just those who handle felony cases, so the ratio likely isn't quite right. How this changes the "doubling" statistic, though, is unknowable. If the 10,000-person increase in prosecutors was focused primarily on felony-level prosecutors, then caseloads didn't doube; if focused on lower-level prosecutors, more than doubled. 

Posted by John Pfaff on June 12, 2014 at 11:49 AM | Permalink | Comments (0)

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?



Posted by Matthew Lindsay on June 12, 2014 at 11:16 AM in Books | Permalink | Comments (0)

A new Green Bag (Spring 2014)


Volume 17, Number 3

(Most of the issue is available here now.)

Ex Ante

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

Ex Post

Fables in Law, Chapter 3: Legal Lessons from Field, Forest, and Glen, by D. Brock Hornby

Posted by Ross Davies on June 12, 2014 at 10:19 AM | Permalink | Comments (0)

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.

Using Mount Laurel as a model, one could call this judicial strategy the three-step solution. Here's how the three-step dance works: The Court (1) declares that some state of affairs (e.g., slow dismissal of incompetent teachers, lack of affordable housing) is unacceptable, (2) enjoins a bunch of laws that somehow contribute to that state of affairs in an unspecified way, and (3) stays the injunction in hopes that the legislature will tweak the laws enough to fix the problem.

The problem with this strategy is that, where the constituencies that benefit from the enjoined laws are politically powerful (such as teachers or homeowners), then the legislature will simply stall, making small cosmetic changes that gore few oxes and make no substantial difference in the state of affairs deemed to be unacceptable. This is what the Township of Mount Laurel did in response to Justice Hall's original decision in Mount Laurel I, and this is what, I predict, the California Legislature will do if Judge Treu's decision is sustained on appeal.

The Court then has to decide whether or not to double-down with a second ruling defining precisely those aspects of the laws that need to be changed to comply with the Constitution. Mount Laurel II did so in 1983 with its "fair share" formulae, a decision that led to a protracted struggle with New Jersey's local governments and governor that continues to this day.

Is Judge Treu prepared to double-down with some specifics, when the California legislature dithers, as it inevitably will? If not, then maybe he should not go down this road at all: Declare the controversy to be non-justiciable at the outset. If he is willing to follow through, however, then I am inclined to believe that Judge Treu would have been well-advised to do a bit more of the hard work up front in identifying the specific laws that need to be changed and the changes that would be deemed constitutionally sufficient.

Posted by Rick Hills on June 11, 2014 at 05:39 PM | Permalink | Comments (7)

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.

Political consequences – intended and unintended.  Steve Bank accurately notes that the reformers and state-builders who are the key protagonists of my story were seeking to create a moderate fiscal state.  Although there were calls from the far left for more radically redistributive taxes, it was the middle-ground progressive activists, thinkers, lawmakers and administrators who ultimately prevailed.  One reason they did so, as Matt Lindsay notes in his commentary, is because they had to work within the confines of an American political culture that was suspicious of centralized state power.  The existing historiography tends to overemphasize, in my view, the strength of this anti-statist strand of American politics.  And thus one of the main objectives of my book is to show that turn-of-the-century progressive reformers were able to take advantage of economic crises and national emergencies to overcome conservative resistance and create a more social-democratic fiscal state.  Indeed, Thomas Piketty seems to agree that the United States in the early twentieth century was pioneer in adopting direct and graduated taxation.

In this sense, I do not believe that many of the historical actors in my account intended the new tax regime to be a temporary or fleeting part of the revenue system.  To be sure, they advocated graduated income and wealth-transfer taxes as a counter-balance to the regressive incidence of the existing regime of national tariffs and excise taxes – at a time (the first Gilded Age) when American society was riddled with massive economic inequalities.  But many of my historical characters contended that this new tax system would be essential for much more than just raising revenue or recalibrating the distribution of tax burdens.  They sincerely believed that taxes, as part of the social contract, could also reconfigure notions of civic identity – or what I refer to as “fiscal citizenship.”  Many of them also came to see direct and progressive taxes as a way to shape political institutions by building a vital administrative infrastructure, as Nick Parrillo has observed in his comments, and as he has argued in parts of his recent book.  These were the intended consequences of the progressive fiscal state-building agenda.

But there were also several unintended consequences.  Indeed, one of the great ironies that frame the book is how the so-called “success” of the “ability-to-pay” logic supporting the progressive income tax may have forestalled a more holistic American understanding of the tax-and-transfer process. In the book, I argue that by rejecting the “benefits theory” of taxation and exalting the “ability to pay” rationale, reformers severed the link between state spending and revenue generation. By stigmatizing nearly all consumption taxes as regressive and outdated expressions of the benefits principle, they limited the imagination of future American tax theorists and reformers.  By defining fiscal justice exclusively by the progressivity of a tax system based on ability to pay, reformers created what I refer to as a kind of “fiscal myopia” that foreclosed the consideration of broad-based, European-style consumption taxes as a means to finance modern social-welfare spending.  Thus, one of the “presentist” upshots of my book, as Susie Morse and Reuven Avi-Yonah note, is to explain how the origins of our current tax system may partially explain why the U.S. tax system, which lacks a value-added tax (VAT), is such an outlier compared to its OECD counterparts.  Incidentally, in the book’s introduction, I gesture toward how intellectual currents may have contributed to other causes explaining why the U.S. has not adopted a VAT.

Matt Lindsay acutely notes another irony or unintended consequence in my story.  By referencing the recent “you didn’t build that” controversy, Matt makes a great case for how “the defeat of the benefits theory a century ago has made it possible to deny any element of reciprocity, and thus to assert a kind of fiscal atomism that’s more strident than ever.”  I think he is absolutely correct.  But I’m not sure if this is a legacy of the progressive period, or whether it is a representation of a more recent fiscal transformation.  As I try to explain in the book’s conclusion, I believe that since the 1960s, we have entered a new fiscal epoch – one in which there is a diminished sense of social responsibility and democratic obligation.  Whether we refer to this period as an era of Bowling Alone or as Age of Fracture, there’s no denying that we’ve witnessed the growing disintegration of the social.  In this sense, my book is really about a lost moment in American history – a moment when progressive reformers, thinkers, lawmakers, administrators and ordinary citizens believed in social solidarity and collective obligations.

Crisis and contingency – theories of historical change.  In his thought-provoking commentary, Nick Parrillo has pushed me to elaborate on my theory of American political development, or more broadly on my understanding of historical change.  Nick and Susie both correctly observe that WWI is in some ways the climax or linchpin of my story, but that I’m also resistant to the conventional account of war as the handmaiden of state-formation (a la Charles Tilly, et al.).  Indeed, just as I am skeptical of the existing literature’s overemphasis on American anti-statism, I have been equally uncomfortable with the claims of historical social scientists that “war makes states” (Tilly 1985).  Thus, the book tries to show that war is not simply an exogenous variable that ineluctably determines the size and shape of nation-states.  In contrast to this Darwin logic of natural selection, I try to show how social movements, political activists, public intellectuals, power lawmakers, and key government administrators all engaged in a highly contested, contingent, and uncertain battle over the ideas, laws, and institutions that would come to define the new fiscal polity.

Still, one may wonder, as Nick does, whether my account would have been dramatically different if the United States had not adopted the intellectual and legal foundations for direct and progressive taxation before the national crisis of the Great War.  Nick poses just such a counterfactual.  This is an intriguing question.  And as Nick no doubt knows historical counterfactuals can be both illuminating and dangerous.  If I had to guess, I would think that the U.S. would have adopted a more moderate and perhaps temporary income tax, based on the Civil War precedents, to raise the revenue to wage a global war.  The other options seem less likely. 

All this, of course, raises the central question whether my historical narrative is in tension with my theory of historical change.  Susie and Nick have both pushed me to re-examine whether war is or is not the explanatory variable.  To answer this critical question, I think one needs to draw a distinction between fundamental causes of historical change versus triggering or catalytic events.  As I see it, the fundamental causes of the fiscal transformation I have set out to explain were afoot well before the war emergency: the pre-crisis conceptual shift, which itself was rooted in the rise of industrialization and a more interdependent society; a constitutional amendment (16th); a new legislative basis; and the beginnings of an administrative apparatus – all these were the drivers of the fiscal revolution.  The war was mainly a triggering event that accelerated a process that had begun much earlier.  I’m not sure if I make this distinction between causes and triggers clear in the book, but this might be one way to reconcile my historical account with my theory of American political development.

In my next post, I hope to take on the more specific questions raised (or yet to be raised) by my thoughtful interlocutors and any other commentators.


Posted by Ajay Mehrotra on June 11, 2014 at 04:40 PM in Books, Tax | Permalink | Comments (0)

Orange is the New Black - Spoiler Alert

Screenshot 2014-06-11 06.37.58I'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.

Notably, some of the serious issues raised in the context of the hunger strike mirror events from the recent Pelican Bay hunger strike. One of the demands of the strikers in the series was to clarify the administrative policies behind sending inmates to the SHU. Of course, in Orange is the New Black, we only see the SHU being used as a punitive, disciplinary mechanism, rather than as a vague, indefinite status for suspected gang members, as is the case in Pelican Bay, Corcoran, and elsewhere. Nonetheless, we get to see the impact of a month in the SHU on two inmates: Chapman and Watson, both of whom are deeply traumatized by their stay in solitary confinement. The other important issue raised in the series is force feeding of Sister Ingalls - shown as an unpleasant process through IV and raising problematic ethical questions. As some readers may recall, Judge Henderson's order to allow force feeding of inmates effectively ended the Pelican Bay strike, and more or less around the same time the world was shocked by rapper Mos Def's demo of force feeding in Guantanamo.


Rosa Cisneros' chemotherapy treatments also confront the viewers with the liminal place between inmate and patient. The series pays careful attention to Rosa's transportation in and from prison; to her shackling and unshackling moments at the doctor's office; and to a teenaged fellow cancer patient's confusion about her prison uniform, thinking it's merely "old lady chemo clothes." Rosa bonds with the teenager through stories of her history as a professional bank robber, which we see in flashback, reminding us that a bald, ill woman was once a vibrant, energetic adolescent involved in daring criminal enterprises. The last scene of the season sees Rosa transform once more, as she "goes with a bang" into her younger, energetic self, daring and transgressing one more time. But before that glorious, powerful end, we see a scene far less dramatic but equally moving: Rosa sits in Healy's office, where she receives the news that the Department of Corrections will not fund surgery for her, which essentially dooms her to an ineffective chemo course and to an early grave. She receives these news, as well as the news of having three more weeks to leave, in serenity and acceptance. "Talk to me," she says to the doctor, "like you would talk to someone you like."

Last but not least, in one of the comical scenes, the inmates are treated to a "mock job fair", which starts with a jovial dress-up and fashion show, and continues with mock interviews with, of all people, the representative of Philip Morris ("because who else would employ former inmates?")

Screenshot 2014-06-11 06.38.23
Everything about this bullshit so-called rehabilitation program screams the need for useful, realistic, evidence-based vocational training. The inmates are dressing up and interviewing for positions they have no hopes of receiving after their release. The program becomes mere entertainment, a spectacle, a mockery of reality-show-type contests, and does not provide any useful skills for the outside world. When Taystee, the only inmate who seems to take the job fair seriously, asks the Assistant Warden whether the "winner" of the job interview will actually receive a real job, she is mocked and offered a $10 addition to her commissary funds. The warden's mockery implies that the rehabilitative programming is never seriously meant to rehabilitate, which reflects much of the unsuccessful prison programming that led Robert Martinson to conclude that "nothing works."

As an aside, the recession may have changed this by prompting states to reduce their recidivism rates to save money. I've just received word that the Council on State Governments' Justice Center will be releasing a report tomorrow, timed to an event on Capitol Hill, showing 6%-18% decline in recidivism rates in eight states, due to conscious efforts to invest in effective rehabilitation and reentry programming. The humorous scene in Orange is the New Black is a reminder of how time served can be effectively used, or completely wasted, depending on the thoughtfulness and genuine motivation of correctional authorities.

What are your favorite moments, characters, and issues, from Season 2?

Posted by Hadar Aviram on June 11, 2014 at 10:51 AM | Permalink | Comments (0)

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.

The Court's end-of-term deadline produces a predictable flurry of activity around this time of year, when the last wave of majority and dissenting opinions is being circulated inside the Court. The cases most obviously affected are the ones heard in late April. For instance, roughly seven months passed between the oral argument in Bond v. United States and last week's published opinion in that case. By contrast, the Court has only a little over two months from argument to issue decisions in the cases heard during the April sitting. In fact, the rush is even more acute than that because, as Professor Richard Lazarus recently noted, the Court typically circulates all draft majority opinions no later than the beginning of June. This year, for example, the Court's April sitting included the complicated cell-phone search cases United States v. Wurie and Riley v. California (which I blogged about here and here). The first draft majorities in Wurie and Riley were likely written in just about a month -- and at a very busy time of year. Dissent drafts circulate even later, creating the possibility for major swings in reasoning and even in result as July approaches.

The effects of the end-of-term rush are hard to pin down. On its face, the Court's schedule creates an arbitrary difference in the way that early- and late-term cases are treated. As Lazarus suggests, the Court might be more prone to making relatively small (but still potentially significant) errors during the final weeks of the term, when attention is divided and time is short. In other cases, the Court might fail to reach a majority, or write a fuzzy opinion where -- provided more time -- a clearer test or analysis might have been possible. And, of course, it's possible that the Court might be more likely to issue fundamentally ill-considered opinions during the end of the year. Back in 1979, Professor Henry Monaghan opined that "the Court hears cases far too late in its term" and that "the pressure to 'get these out' inevitably produces well-known intellectual disasters in every term." I imagine that most readers can think of their own suspected examples of late-term decisions that could have used a little more time to bake.

Assuming that the Court does sometimes rush to judgment, what is there to do about it? In recent years, the Court has tried (with varying success) to front-load its calendar, partly in order to reduce end-of-term pressure. This year, for instance, the Court approached June having already issued a number of major cases argued in October and November. In a similar vein, the Court might shorten, move earlier in the year, or even cancel its April sitting. Even more interestingly, the Court could encourage symmetrical treatment of all cases year-round by adopting a new norm that all decisions should issue during a set period allowing adequate deliberation -- say, within 100 days of argument (assuming that the time between briefing and argument remains fixed). That approach would have the added advantage of preventing early cases from growing overlong and being over-thought. Finally, the Court could do the unthinkable: shorten its summer recess.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 10, 2014 at 09:36 PM in Judicial Process | Permalink | Comments (6)

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.

Posted by Chad Oldfather on June 10, 2014 at 05:43 PM | Permalink | Comments (8)

“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. 

     Having absorbed the historicism and empiricism of the German Historical School of Economics in which they were trained, the progressive economists eschewed the purported timelessness and universality of classical British political economy.  Instead, they emphasized the historical contingency of fiscal policy; its embedded-ness in the social and ideological context in which it operated.  In practice, this meant drawing on the lived experience of modern industrial life to critique the classical liberal divisions between public and private, and between the laissez-faire state and the self-possessed individual; and forging a much larger role for the state in mitigating the economic inequality and conflict inherent in modern industrial capitalism.  The progressive economists strove to accomplish all this, moreover, while steering clear of the more “communal” and redistributive views of their German mentors.  To do so, Ajay writes, they needed to “graft continental ideas onto the stock of Anglo-American thought; they needed to make German economic theories palatable for modern American institutions and culture.”  

    The ability to pay theory of taxation, with its new vocabulary of duty and solidarity, proved essential to this project because it allowed the progressive economists to explain how an income tax regime that featured a high exemption and steeply graduated rates could shift a greater share of the tax burden to the wealthy, without undermining the principal tenets of market capitalism. As an intellectual history of this process of grafting, or translation, Making the Modern American Fiscal State is an engaging and instructive read.  But it is also much more than that. 

     It is fundamentally a study of ideas in action—as Ajay writes, of how “[s]ocial movements, political activists, public intellectuals, powerful lawmakers, and key government administrators engaged in a highly contested, contingent, and uncertain battle over the ideas, laws and institutions that would come to define the fiscal polity.” (p. 25)   To tell this story, Ajay expertly interweaves several parallel histories.  Public intellectuals responding to broad structural economic forces like industrialization, corporate consolidation, and cyclical economic depression occupy a central role in Ajay’s analysis.  But Making the Modern American Fiscal State is also a political history of the long-running battle between Republican defenders of the “regressive” federal tariff, and Democratic and Populist advocates of progressive income taxation; a constitutional history of the Pollock case (striking down the first federal income tax), the adoption of the 16th Amendment, and the Supreme Court’s post-Amendment decisions mostly ratifying emerging federal tax policy; and an administrative history of how tax reformers, lawmakers and Treasury officials created a more centralized and professionally administered fiscal bureaucracy.  

     Finally, and most surprisingly for me, it is also a history of American citizenship—specifically, of how the act of paying taxes became imbued with the citizenly virtues of ethical and patriotic duty, and of equal sacrifice for the benefit of the public.  I have to confess that when this theme was first introduced, I wondered whether it might be somewhat overdrawn, and I was skeptical that citizenship had been more than a rhetorical trope used by advocates of a progressive income tax.   But that skepticism dissolved once I encountered abundant evidence drawn from a rich and varied array of sources, and I came away highly persuaded that Ajay describes what was, in fact, a fundamental change in the very meaning of paying taxes, not only for tax reformers and policymakers, but also for many of the wealthy taxpayers who bore the brunt of the graduated income tax. 

            Now I’d like to turn to the long-run consequences of abandoning the benefits theory of taxation, and think about Making the Modern American Fiscal State specifically as a history of the present.  Ajay argues that, by rejecting the benefits rationale so emphatically and completely; by stigmatizing all consumption taxes as hopelessly regressive; and by defining fiscal fairness exclusively as a matter of reallocating tax burdens according to the ability to pay, the progressive economists and their political allies created a kind of “fiscal myopia,” foreclosing consideration of broad-based, European-style consumptions taxes as a way to finance modern social welfare spending.   

     As I’ve been thinking about this and other various historical legacies of the transformation that Ajay describes, I keep returning to the famous “You didn’t build that” controversy of the 2012 Presidential campaign, which was prompted when President Obama mangled a passage of a speech intended to make the basic point that people don’t acquire wealth in a vacuum, independent of various public, tax-payer funded resources.  Senate candidate Elizabeth Warren made a similar argument much more effectively it in a 2011 youtube video that's been viewed more a million times.  As she told a group of supporters: 

There is nobody in this country who got rich on his own — nobody. You built a factory out there? Good for you. But I want to be clear. You moved your goods to market on the roads the rest of us paid for.  You hired workers the rest of us paid to educate. You were safe in your factory because of police-forces and fire-forces that the rest of us paid for. You didn't have to worry that marauding bands would come and seize everything at your factory — and hire someone to protect against this — because of the work the rest of us did. Now look, you built a factory and it turned into something terrific…. God bless — keep a big hunk of it. But part of the underlying social contract is, you take a hunk of that and pay it forward for the next kid who comes along.

    Now, neither the President nor Senator Warren adheres to the 19th-century benefits theory, in the sense of wanting to limit tax contributions to the measurable benefits that each individual and business receives in return.  But perhaps it’s nevertheless telling that leading contemporary advocates of progressive fiscal policy feel the need to invoke the social contract, and to make the argument that business owners do, indeed, benefit from public expenditures; and further, that reminding people of that fact inevitably elicits charges of “socialism.” 

     At the very least, it suggests that the vision of fiscal citizenship that Ajay describes is less robust today than many of us might like.  But it also made me consider whether, for all of the limitations of the benefits theory (it’s regressive, transactional, atomistic, etc.), at least it had the virtue of reminding us as taxpayers that we do, in fact, receive reciprocal benefits for the payment of taxes—a fact that today is no longer a truism.  In other words, I wondered whether the defeat of the benefits theory a century ago has made it possible to deny any element of reciprocity, and thus to assert a kind of fiscal atomism that’s more strident than ever.  So the question is, should we add to the list of unintended consequences a second variety of fiscal myopia—specifically, an inability or unwillingness to see the embedded-ness of economic success in the broader matrix of publically financed amenities in which that success is achieved?


Posted by Matthew Lindsay on June 10, 2014 at 02:18 PM in Books | Permalink | Comments (1)

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.

2.  Internet Use During Class:  I think I may have somewhat given up on this.  I try to call on students who are obviously surfing the web during class discussion.  But, to be honest, when I was a law student I attempted to multitask in class too - I just didn't have the internet, but I did have crossword puzzles, letters and notes to write, readings for other classes to catch up on, etc.  So, sometimes I feel a little hypocritical when I make too big of a deal about surfing the web during class.  In one small seminar class, I didn't allow computers, and for that small class it worked very well.  I had the most engaging student discussions when laptops were closed.  I haven't tried the no computer rule with a big class yet.  I am hesitant to do so because I often use the web during class discussion to look up statutes and other materials.  Also, students have case briefs and other prepared materials on their computers and need access to them.   But, I have toyed with the idea of a "no computer week."  Has anyone done this and was it successful?

3.  Taking Too Many Notes:  This point is somewhat tied to #2 above.  Recently, there was an interesting study that determined that students do better when they handwrite lecture notes rather than typing them.  Basically, the study pointed out that people tend to type faster than write, so they are less judicious in what they type than what they write.  Until I read this study, I hadn't given this matter a lot of thought.  Perhaps I should be encouraging students to handwrite class notes.

Posted by Naomi Goodno on June 10, 2014 at 12:07 PM in Culture, Current Affairs, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (6)

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?

Posted by Matt Bodie on June 10, 2014 at 11:52 AM in Books | Permalink | Comments (0)

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.  

Economists may not have satisfied themselves about the consumer incidence of excise taxes and custom duties, but less-well-off consumers apparently felt it, and demanded a tax based on the sonorous and malleable metric of “ability to pay” – a practical relative of endowment or “faculty” taxation -- rather than the exchange-based concept of “benefits taxation.”  That the 1893 Panic drove a Populist-and-rogue-Democrat passage of the first peacetime income tax in U.S. history is believable.  It is what comes after that generates the mystery.

In class, I used to tell it like this:  In a 5-4 1895 decision in Pollack v. Farmer’s Loan & Trust Co., SCOTUS held the federal income tax unconstitutional because it violated the requirement that “direct” taxes must be “apportioned.”  It reasoned that since property taxes are direct taxes, taxes on income from property must also be treated as direct taxes.  This ridiculously broad interpretation of  “direct tax” was sensibly reversed by the 1913 ratification of the Sixteenth Amendment to the Constitution.

What?  Because of sensible state legislatures, we got a federal income tax?  Plaintiffs who had the resources to persuade a Supreme Court majority just decided to sit down and shut up?   Wasn’t the Republican party dominant nationally?  Were we at war?  Was there some financial crisis?

The story Ajay tells does not have a simple motivating cause.  There are at least three strands.  First, there was a perception of increasingly unequal distribution of wealth and income, highlighted by the growing power of corporations and some rich families and a financial panic in 1906-07.  Second, the states, especially Wisconsin with its individual income tax, successfully experimented, including with the administration of the tax.  Third, academics strongly advocated the view that a federal income tax should not violate the constitution and indeed would make sensible policy.   This view was voiced by Edwin Seligman of Columbia, apparently partly to atone for spinning out hypotheticals to the contrary at the request of the Pollock taxpayer plaintiffs.   Ajay suggests that Seligman’s efforts helped tip the balance in favor of ratification in New York.

The story of this first mystery, the birth of the U.S. national income tax, perhaps partly explains the second mystery – why the United States does not have a value-added or other broad-based consumption tax.  Of course, VAT technology developed later, after World War II.   Nevertheless, Ajay argues that if the framework set up by the Pollock debate continued to dominate in later decades, it helps explain why the U.S. differs from every other OECD nation on the VAT question.

Like other flat-rate consumption taxes, VATs are regressive.  This is often justified outside the U.S. by their capacity to fund broad social welfare programs.   But the U.S. income tax debate at the turn of the century only focused on half the issue:  only on whether certain types of taxpayers should pay more, rather than on how the money was spent.  A focus on how the money was spent could have put income tax advocates back into the excise-tax-dominated benefits-tax box from which they wished to escape. 

So perhaps turn-of-the-century policymakers developed the mental habit of sharply segregating  taxation and public spending in their thinking to permit them to make a coherent argument to reverse Pollock.  But it is striking that we maintain that habit today.  It is a standard underlying feature of much analysis in a standard law school tax class and an explicit assumption of optimal tax theory.  We measure the distribution of tax changes with predictable political skews, but more rarely attempt to say who benefits from changes in public spending.  With Ajay’s book, we understand better why we have this bias.  Whether we have the capacity to expand our view in a disciplined fashion remains an unanswered question.

Posted by Susie Morse on June 10, 2014 at 11:28 AM in Books | Permalink | Comments (2)

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. 

I think that Mehrotra’s rendering of this story reflects (or, at least, can be invoked to support) a certain theory of political development, one that I would like to discuss in this post. To do so, let me pose a counter-factual.  Say that WWI had occurred just ten years earlier.  Had the United States gone to war against Germany in 1907, rather than 1917, the prospect of ramping up the income tax to pay for the war would’ve looked very different.  It would’ve been constitutionally doubtful, would’ve demanded a much bigger leap in terms of new legislation, and would’ve required building a collection apparatus (e.g., stoppage at source) from scratch, rather than scaling-up a prototype.  Further, the intellectual justifications would’ve been less developed.  One can imagine that, in such circumstances, the U.S. government might’ve tried to finance the war by intensifying the old regressive regime, paying for the conflict with heightened tariffs, expanded excises, and borrowing.  This might’ve entrenched the old regime further and/or made the U.S. war effort less successful.  Alternatively (or in addition), the U.S. government might’ve tried an income tax, but it would’ve had to be “on the fly,” without the foundation-laying that Mehrotra emphasizes in Chapters 2-5.  That is, it would’ve been similar to what did in fact happen in 1917-18 with the War Industries Board, whose management of production and procurement was far less successful than the Treasury’s financing operations (and note the WIB didn’t survive once the crisis ended). 

That the income tax performed so well in WWI suggests that a comparatively small amount of pre-crisis institution-building -- consisting mostly of pre-organizational tasks like justifying the policy, carving out the constitutional space, and enacting the statute, plus a few initial organizational tasks like implementing stoppage-at-source on a small scale -- can go a long way in terms of intra-crisis (and post-crisis) operations.  

On this point, it’s illuminating to compare Mehrotra’s book with a classic study of crisis-driven American state-building, Theda Skocpol and Kenneth Finegold, “State Capacity and Economic Intervention in the Early New Deal,” Political Science Quarterly 97 (1982): 255-278, elaborated in their book, State and Party in America’s New Deal (Madison: Univ. of Wisconsin Press, 1995).  Focusing on the economic crisis of 1933, Skocpol and Finegold argue that the Agricultural Adjustment Act succeeded while the National Industrial Recovery Act failed because the AAA drew upon the mature, long-developed policy thinking and implementational knowhow of the U.S. Department of Agriculture, whereas the NRA had no mature state apparatus to rely upon.  Personally, I find Skocpol and Finegold’s account of these two programs compelling.  But their study is limited in what it can tell us, because their two cases are both so extreme.  NRA had zero pre-crisis institutional capacity, whereas the USDA was extraordinary in that regard, having built routinized and attractive career paths for its personnel over the preceding decades. 

The Treasury Department’s income-tax apparatus in WWI, as reconstructed by Mehrotra, presents an intermediate case: it had not enjoyed nearly as deep a process of maturation as USDA had by 1933, but neither was it forced to start from zero like NRA.  When it comes to institution-building, crisis is opportunity (to paraphrase Rahm Emanuel).  But laying the foundations for institutions -- even if these are largely intellectual or legal (i.e., merely “on paper”) -- may determine what kinds of opportunities the crisis presents. 

Seen in this light, the exact timing of WWI (determined by events exogenous to America and thus arbitrary from the American perspective) seems fortuitous and highly consequential for American political development.  Consistent with path-dependence theory (to which Mehrotra is sensitive, e.g., p. 354), major consequences arise from relatively small initial events and are to some degree random.  I’d like to hear what Mehrotra thinks of this reading.  How much is our present-day fiscal regime an accident of timing?  Had the Treasury Department’s progress not happened to be a few years ahead of the German U-boats, would we all be paying different taxes today?  

Posted by Nicholas Parrillo on June 10, 2014 at 11:23 AM in Books, Tax | Permalink | Comments (2)

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.

Posted by Howard Wasserman on June 10, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

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.


What I fear what may be lost amidst the subtitle and the momentous nature of the transformation is the extent to which the progressivism involved in the shift was more contextual, political, and contingent than the rhetoric might suggest.  Although there were certainly those who envisioned a radically redistributive type of progressive taxation, they weren’t exactly the winners in this debate.  Arguably, the prevailing theory of income taxation was one that is hardly ever discussed today and I did not see mentioned in Making the Modern American Fiscal State – one Edwin Seligman called the “special compensatory theory.”  This was distinguished from the general compensatory theory, which posited that the income tax was necessary to offset “the inequalities consecrated by custom and by law” whereby “the legal conditions of society naturally favor the rich.”  Under the special compensatory theory, the revenue system is viewed as a whole and one form of taxation is made progressive to make up for the regressive effects of another specific form of taxation.  As Seligman wrote in the 1908 edition of his treatise on Progressive Taxation in Theory and Practice, the income tax and other similar direct taxes are “designed to act as an engine of reparation” against the regressivity of the customs duties and excise taxes.  “In order to obtain equal treatment the regressive indirect taxes must be counterbalanced by the progressive direct tax.” (Seligman, pp. 144-146)

It’s not that Ajay ignores this part of the story.  For example, Ajay explains that in 1894 “[income tax advocates . . . reminded their opponents that the proposed income tax was merely a supplement to a larger tariff regime, and that national taxation was just one part of a broader fiscal order that included many forms of regressive taxation.” (p. 128).  It’s just that Ajay characterizes this as a political compromise that served as a weigh station on the road to the true progressivity of an income-centric tax system, rather than being a part of the design itself.  Under this latter perspective, the transformation in the revenue system that began during this period envisioned an income tax in which the base and the rates ratcheted up or down based on the makeup of the remainder of the system.  Indeed, during the debates over the first post-Sixteenth Amendment income tax bill in 1913, Senator John Sharp Williams, the leader of the Democratic caucus, argued that “when the good day comes – the golden day – when there will be no taxes upon consumption at all . . . and no import duties at all except countervailing duties to offset them [then] everybody will pay in proportion to his income,” meaning a flat rate.  In effect, the transformation Ajay describes was important and it was progressive (in no small part due to the advance of fiscal citizenship that is one of Ajay’s themes), but it was not necessarily designed to lead to progressive income taxation as a permanent feature of the revenue system.

Perhaps this is why the “retrenchment” Ajay describes in the 1920s was not really a retreat from the principles of progressivity that helped motivate the original income tax.  Instead, it was more a reflection of the post-World War I return to the mean for income taxation in its service as a mild counterbalance to the continued presence of regressive features, including, in more modern times, the regressivity arising from the unequal distribution of tax evasion opportunities.  In many respects, the fundamentally moderate or even conservative underpinnings of the original income tax continues to describe the tax system and frustrate reformers, such as those who see Thomas Piketty’s recent tome as a clarion call for new forms of wealth taxation.  

Posted by Steven Bank on June 10, 2014 at 09:00 AM in Books, Tax | Permalink | Comments (0)

Book club on "Making the Modern American Fiscal State"


Our book club for "Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929" begins today.  Our club-goers will be:

Looking forward to a great club!

Posted by Matt Bodie on June 10, 2014 at 01:25 AM in Books | Permalink | Comments (0)

Monday, June 09, 2014

Limits on the Court's Revision Power

A few weeks ago, Professor Richard Lazarus posted a fascinating and much-discussed draft article documenting the Supreme Court's practice of revising its opinions after their initial publication. These often overlooked revisions, Lazarus shows, can extend to important points of law. Partly for that reason, Lazarus proposes various reforms to promote transparency, such as public notice of any post-publication changes.

In reading Lazarus's paper, I found myself wondering whether there are any limits on the Court's revision power. I think that there are. In particular, the Court probably has authority to modify the substance of a precedential opinion only when the relevant case is before the Court. Revisions at other times, such as long after the judgment and mandate have issued, seem like advisory opinions.

There are lots of situations where post-publication revisions don't implicate the Court's decision-making authority. These include changes to dissents and to at least most concurrences (assuming they don't have precedential force under the Marks rule). Other unobjectionable changes arise pursuant to motions for reconsideration, which allow the Court to exercise its judicial power while still resolving the case before it. Finally, changes of a non-substantive nature don't seem problematic.  For instance, Lazarus notes a revision that added the "t" to Justice Stevens's name. That kind of typographical error clearly has no effect on the opinion's basis or precedential force.

For the opposite extreme, imagine that the Court purported to revise a very old decision. Let's say, for instance, that a future Court decided to retroactively revise Brown v. Board of Education in two ways: first, to eliminate the famous and famously controversial footnote to psychological studies indicating that segregation had adverse effects on children; and, second, to add the well-known account of Brown set out in volume 1 of Bruce Ackerman's "We the People" series, which viewed Brown as derivative of the New Deal "constitutional moment." One of these changes is a subtraction, while the other is an addition. But I would be surprised if anyone viewed either of these revisions as legitimate, even if the changes were accompanied by ample public notice and opportunity to comment. The Court's decisions aren't perpetually ongoing works in progress, even though they can be modified through other decisions consistent with judicial practice.

Imposing a temporal limit on the Court's revision power can be justified in many ways. For one thing, there is an important formal objection to excessive use of the revision power. If a relevant justiciable case is necessary to create a particular precedent under Article III, then one would expect that the same standard of justiciability should also be necessary to revise that precedent. This approach ensures that the Court's published statements are always linked to concrete judgments. By contrast, late revisions are necessarily post hoc rationalizations -- much like the journal articles whose views the Court might be adopting. Even if a later-arising justification were in some sense better than the actual justification in terms of its cogency or clarity, the original justification would still be uniquely valuable as a window into the Court's actual, contemporaneous decision-making process. In a sense, preserving original judicial opinions, subject to reconsideration in later, separate precedents, is akin to preserving the original Constitution, with amendments reflected at the end of the document. Of course, there are also pragmatic issues at stake, as major or long-delayed revisions could erode the public's ability to rely on precedent.

In light of the above, I suspect that the basic dividing line between permissible and problematic revisions should be the Court's authority to act in the relevant case. In the normal course, under Rule 45 the Court is divested of its decision-making authority over a matter when the mandate issues (in state cases), or when a certified copy of the judgment is transmitted to the lower federal court. This generally applicable deadline would run on the order of weeks or, if rehearing is requested, months from the original date of an opinion's publication. By contrast, the Court currently appears to embrace a multi-year window for revision before an opinion's publication in the U.S. Reports. In addition to the transparency problems that Lazarus identifies, long-delayed efforts to revise precedent may implicate or even exceed the Court's authority.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 9, 2014 at 10:23 PM in Judicial Process | Permalink | Comments (7)

Anxiety and Ambition in the Trenches

A benefit of my temporary role as AALS president is the opportunity to meet with faculty and administrators at their law schools, mainly in order to listen to their concerns and advice and hopefully draw upon this wisdom to improve the service of the organization in this time of disruptive change.

The atmosphere of these visits reveals a high level of concern (of course) with the impact of the changing admissions structure and what it portends for law school benefits generally and faculty well-being particularly.  Yet, what is remarkably encouraging, when taking these high-anxiety conversations as a whole, is this:

First, faculty members truly get that the core dilemma is how best to provide a high-quality education to the group of students, even as they come in often at smaller numbers, and, moreover, how to inculcate in them the value of a manifestly comprehensive, creative set of skills -- theoretical and experiential -- in a fluid marketplace, the future contours of which none of us can predict exactly.  That the infrastructure of student learning is at the heart of what we do as faculty members comes up in these discussions reliably and eloquently.  And, further, that the key threat from the war on law schools is that directed at the students who are investing, and the young alumni who have invested, in legal education is very much on the minds of our member school faculties.

Second, there is a deep confidence, some might call it hubris, that the doing and disseminating of legal scholarship will continue largely unabated.  This is not to minimize the impact of challenged budgets on how law profs do their work.  However, no one I have visited with on behalf of AALS regards the scholarly enterprise as a luxury or an imposition and no one sees the current pressures as a beginning of a crowding out of scholarly discourse and creative engagement with ideas and efforts at tackling urgent matters of legal reform.  The self-selection that draws significant numbers of talented lawyers to the legal academy will preserve, so long as law schools survive in the basic form that they exist presently, the good, ambitious work that our faculties pursue in their research, writing, and speaking.

Third, and on a less optimistic note, the decline in law faculty hiring can be expected to hinder law schools' goals in concrete ways.  To be clear, I seldom hear expressions of anxiety that this or that school's "ranking" is in jeopardy or that the overall reputation of the law school is in peril because further hiring is postponed, perhaps for a long while.  (No doubt these fears exist, but they are not, to me, central on the minds of the faculty with which I have visited).  Rather, halting faculty hiring can sap from the general environment of the school the creative energy that comes from new ideas and perspectives; it can also limit the bandwith with which a law school can implement innovative, modern programs designed to respond to the rapidly changing dimensions of legal practice and the profession.  Reliance on different kinds of faculty -- lecturers, adjuncts, visitors -- can ameliorate these difficulties.  But a full-time faculty invested in the governance and the long-term well-being of the law school is not easily substituable -- at least not from the perspective of the many law schools with which I have visited.

So, in the trenches are clear-eyed, smart, serious teacher-scholars, passionate about what they do, concerned about the challenges facing their law schools, and committed to substantial change, while also invested in preserving what is successful and constructive about the modern structure of legal education in the U.S.  In all, an encouraging picture, even if relentlessly under threat by those who reach a contrary conclusion (on much thinner evidence).

Posted by Dan Rodriguez on June 9, 2014 at 10:37 AM in Life of Law Schools | Permalink | Comments (18)

Decline of Lawyers? Law schools quo vadis?

My Northwestern colleague, John McGinnis, has written a fascinating essay in City Journal on "Machines v. Lawyers."  An essential claim in the article is that the decline of traditional lawyers will impact the business model of law schools -- and, indeed, will put largely out of business those schools who aspire to become junior-varsity Yales, that is, who don't prepare their students for a marketplace in which machine learning and big data pushes traditional legal services to the curb and, with it, thousands of newly-minted lawyers.

Bracketing the enormously complex predictions about the restructuring of the legal market in the shadow of Moore's Law and the rise of computational power, let's focus on the connection between these developments and the modern law school.

The matter of what law schools will do raises equally complex -- and intriguing -- questions.  Here is just one:  What sorts of students will attracted to these new and improved law schools?  Under John's description of our techno-centered future, the answer is this: students who possess an eager appreciation for the prevalence and impact of technology and big data on modern legal practice.  This was presumably include, but not be limited to, students whose pre-law experience gives them solid grounding in quantitative skills.  In addition, these students will have an entrepreneurial cast of mind and, with it, some real-world experience -- ideally, experience in sectors of the economy which are already being impacted by this computational revolution.  Finally, these will be students who have the capacity and resolve to use their legal curriculum (whether in two or three years, depending upon what the future brings) to define the right questions, to make an informed assessment of risk and reward in a world of complex regulatory and structural systems, and, in short, to add value to folks who are looking principally at the business or engineering components of the problem.

Law remains ubiquitous even in a world in which traditional lawyering may be on the wane.  That is, to me, the central paradox of the "machines v. lawyers" dichotomy that John draws.  He makes an interesting, subtle point that one consequence of the impact of machine learning may be a downward pressure on the overall scope of the legal system and a greater commitment to limited government.  However, the relentless movement by entrepreneurs and inventors that has ushered in this brave new big data world has taken place with and in the shadow of government regulation and wide, deep clusters of law.  The patent system is just one example; the limited liability corporation is a second; non-compete clauses in Silicon Valley employment contracts is a third.  And, more broadly, the architecture of state and local government and the ways in which it has incentivized local cohorts to develop fruitful networks of innovation, as the literature on agglomeration economics (see, e.g., Edward Glaeser and David Schleicher for terrific analyses of this phenomenon).  This is not a paean to big govenment, to be sure.  It is just to note that the decline of (traditional) lawyers need not bring with it the decline of law which, ceteris paribus, makes the need for careful training of new lawyers an essential project.

And this brings me to a small point in John's essay, but one that ought not escape our attention.  He notes the possibilities that may emerge from the shift in focus from training lawyers to training non-layers (especially scientists and engineers) in law.  I agree completely and take judicial notice of the developments in American law schools, including my own, to focus on modalities of such training.  John says, almost as an aside, that business schools may prove more adept at such training, given their traditional emphasis on quantitative skills.  I believe that this is overstated both as to business schools (whose curriculum has not, in any profound way, concentrated on computational impacts on the new legal economy) and as to law schools.  Law schools, when rightly configured, will have a comparative advantage at educating students in substantive and procedural law on the one hand and the deployment of legal skills and legal reasoning to identify and solve problems.  So long as law and legal structures remain ubiquitous and complex, law schools will have an edge in this regard. 

Posted by Dan Rodriguez on June 9, 2014 at 10:19 AM in Information and Technology, Life of Law Schools, Science | Permalink | Comments (2)

Chief Justice Goldberg? A SCOTUS counterfactual

I am reading Lee Levine's and Stephen Wermiel's The Progeny, which traces the history of New York Times v. Sullivan and subsequent cases and Justice Brennan's efforts to control development of that area of First Amendment law. Arthur Goldberg makes a brief cameo in Sullivan and Garrison v. Louisiana as a third voice on the Court (along with Justices Black and Douglas) pushing for absolute First Amendment protection for all criticism of government and public officials, before resigning (at LBJ's urging) in summer 1965 to become UN Ambassador and to allow LBJ to appoint Abe Fortas to the Court.

So a counterfactual (and maybe this has been written about): What if Arthur Goldberg had not resigned from the Court?

Short term, The Progeny shows that the early path of post-Sullivan defamation cases might have been different. Goldberg aligned t with Black and Douglas for the broadest First Amendment protection (beyond Brennan's actual malice), while Fortas went in the other direction, on one occasion all by himself. Certainly football coach Wally Butts does not keep his defamation judgment if Goldberg rather than Fortas is occupying what at the time was called "the Jewish seat."

What about longer term? Chief Justice Warren supposedly wanted Goldberg to succeed him as Chief. We probably do not get the insanity of the failed nomination of Fortas to be Chief. We definitely do not get Fortas' subsequent pressured resignation from the Court. Do we get a Democratic Chief in 1968 (Goldberg? Brennan? Someone else, and if so, who?), instead of Warren Burger two years later? Would Goldberg have been filibustered the way Fortas was? And if Goldberg becomes Chief, we get someone other than Harry Blackmun in that associate justice seat, another LBJ nomine in 1968 (likedly Homer Thornberry of the Fifth Circuit, who was nominated to Fortas's seat when Fortas was nominated as Chief). In either event, Goldberg lived until 1990; does he become a 20+-year Justice? (or was too otherwise-ambitious and distracted, believing he could be Governor of New York or President).

If nothinge else, does Flood v. Kuhn come out differently? Goldberg likely would have been a third for Flood on the Court, which might have moved other people. More importantly, Goldberg no longer can represent Flood, so he no longer can deliver one of the worst arguments in the Court's history.

Posted by Howard Wasserman on June 9, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Friday, June 06, 2014

Did the Martinez Sum Rev Apply or Change the Law?

Last week, the Supreme Court issued an unusual pro-criminal defendant summary reversal in the Double Jeopardy case Martinez v. Illinois. According to the Court, summary treatment was appropriate in part because the Illinois courts had failed to adhere to "what we have consistently treated as a bright-line rule." Ironically, however, Martinez's main long-term effect may be to increase uncertainty as to whether the rule in question is actually that bright after all. Martinez is an illustration of the marginal legal changes that often accompany what appear or purport to be simple applications of law.

The Court usually issues merits decisions only as to important legal issues, and only after plenary briefing and argument. But the Court sometimes issues summary reversals or "sum rev's" in order to correct blatant errors identified in cert-stage papers. Sum revs thus shepherd the law by singling out extreme outlier courts and bringing them back into the fold. But sum rev's have also been criticized, including for being skewed toward certain favored claims (like state-on-top habeas cases) and for including insufficiently thought-out statements of law, resulting from the lack of full briefing, argument, and deliberation.

Martinez involved a long-delayed criminal case in Illinois where the government repeatedly obtained postponements on account of two absent witnesses. The trial court finally decided that enough was enough and put the government to a choice: either dismiss the charges against the defendant or empanel a jury and commence trial. The government declined to request dismissal, but later stated that it would not “participate” in the case. The trial court answered: “We’ll see how that works.” The way it worked was that the government presented no witnesses, the defendant moved for judgment in his favor, and the court complied.

The government appealed, arguing that it should have gotten yet another postponement. The government then offered a pair of cute theories to overcome the Double Jeopardy Clause. Though the jury had been sworn, the government argued that the defendant was never actually in jeopardy, since the government had said it wouldn’t “participate” in the trial. The government further argued that the trial judge had issued only a dismissal, without entering a verdict for the defendant. The government’s theories prevailed in the Illinois courts.

The Supreme Court viewed Martinez as raising two related questions. First, was the defendant ever in jeopardy? Second, did the proceedings end in a way that prohibited retrial? The Court claimed that both questions were “clearly” controled by precedent. But in resolving the case, the Court may actually have made the law marginally less clear.

On the first question, the Court applied what it repeatedly called a “bright-line rule” – namely, that a “jury trial begins, and jeopardy attaches, when the jury is sworn.” The Court said it had “never suggested” anything else. But almost as soon as it was stated, this rule became a little fuzzier. In a footnote to the Court’s assertion that the bright-line rule had never been qualified, the Court proceeded to qualify it, noting that “[s]ome commentators have suggested that there may be limited exceptions to this rule – e.g., where the trial court lacks jurisdiction or where a defendant obtains an acquittal by fraud or corruption.” The Court also flagged cases “where the prosecutor had no opportunity to dismiss the charges to avoid the consequences of empaneling the jury.” “The scope of any such exceptions,” the Court noted, “is not presented here.”

On the second question, Martinez applied another supposedly settled rule – this time, that a functional finding of acquittal prohibits later trial. In the Court’s view, the trial court had made a decisive finding in the defendant’s favor. But, in another footnote, the Court went on to speculate that, “even if the trial court had chosen to dismiss the case or declare a mistrial rather than granting Martinez’s motion for a directed verdict, the Double Jeopardy Clause probably would still bar his retrial.” The Court based this “probably” correct statement on case law that had “confronted precisely this scenario" and resolved it in favor of the defendant. It is unclear why the Court would include this expressly uncertain dictum, even as it asserted that existing precedent “precisely” addressed the point at issue.

In light of its express reservations, Martinez marginally changed the law. Imagine any case “where the trial court lacks jurisdiction or where a defendant obtains an acquittal by fraud or corruption,” “where the prosecutor had no opportunity to dismiss the charges to avoid the consequences of empaneling the jury,” or where “the trial court had chosen to dismiss the case or declare a mistrial rather than granting [the defendant’s] motion for a directed verdict.” Before Martinez, the Court’s “bright-line” rules arguably dictated that the defendant ought to win under every one of those scenarios. Now, however, Martinez has made it a little easier to make a pro-government exception in each situation. These marginal changes in the law can have real consequences. For example, should a state court resolve any of the above scenarios against a defendant and the defendant later seek federal habeas relief, it may now be harder for the federal court to find a violation of clearly established Supreme Court precedent. This is the kind of indirect doctrinal effect that causes many critics to be wary of summary reversals.

Martinez is also an interesting study in precedential rules and exceptions. On the surface, Martinez held that the Illinois courts defied preexisting and unqualified rules, and that view presumably justified the Court’s decision to sum rev. But the Court’s reservations, particularly as to whether jeopardy attached, suggest that the real mistake of the Illinois courts wasn’t that they had made an exception to the Court’s rules, but rather that they had made a bad exception. In expressly reserving a range of situations where the relevant rules might not apply, the Court made clear that other, better exceptions might yet be made. But what makes one proposed exception better than any other? Martinez came closest to addressing this critical issue in its Part III, which argued (persuasively) that the Illinois courts' rule was "not necessary to avoid unfairness to prosecutors or to the public." That, too, was new analytical work that marginally changed the law.

As you can probably guess, I tend to think that Martinez shouldn’t have been resolved summarily. Part of the reason that sum rev's often seem skewed toward government interests is that summary treatment more readily makes sense in AEDPA, qualified immunity, and other cases where the Court’s express goal is simply to find legal ambiguity. But while Martinez purports to apply settled law, it actually changes the law in subtle ways while rejecting novel arguments for exceptions to governing rules. And, at over 10 pages, Martinez is comparable in length and complexity to a number of recent unanimous or near-unanimous decisions issued after full briefing and argument. Perhaps the Court should sometimes engage in “mere” error correction, including when (as in Martinez) a lower court has curtailed core rights for flimsy and troublesome reasons. But it’s probably better to avoid doing so summarily.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 6, 2014 at 09:14 PM in Judicial Process | Permalink | Comments (0)

Pregnancy and information overload

A non-law (although sort of policy) post: Yesterday's Times published "The T.M.I. Pregnancy", on the drawbacks of the wealth of available pre-natal information. The author's daughter-in-law went through a tense pregnancy in which various tests suggested possible problems (including small size, low birthweight, and a short longbone). While obviously beneficial, the extra information that is now available makes the whole experience nerve-racking.

Nine years later, I can sympathize.

Like the author's children, we did the series of genetic tests targeted for Ashkenazi Jews (our O.B. called it the "Jewish Panel") and waited anxiously for the results. The first ultrasound detected an ecogenic focus, a calcium deposit on the developing heart and a soft possible indicator of Down Syndrome; more anxiety and a long weekend waiting for the results of other tests for Down (all were negative--and the focus ultimately disappeared, although not for awhile, so my wife still was slightly worried). Then the doctors were concerned about fetal size (my mother-in-law and sister-in-law both carried very small), which meant weekly ultrasounds for the final six weeks of the pregnancy. At the last ultrasound, 2 1/2 weeks before the due date, they became concerned about size and amniotic fluid and recommended immediate delivery (I made the mistake of reading the report as we drove back to the O.B.). While in the hospital and hooked to the fetal heart-rate monitor (the machine that goes ping), the fetal heart rate tumbled, prompting the doctor to recommend--and us quickly to accept (my precise words were "Get her out of there")--an immediate C-Section (the doctor insisted it was not emergent, but a non-emergency C-Section is like minor surgery--it is what happens to somone else). Our daughter was small but within range and just fine.

It's a bad combination, really--lots of scientific and medical information, but nothing you can know in the moment and nothing you can do if the information is negative, other than wait, hope, and pray.

Posted by Howard Wasserman on June 6, 2014 at 12:46 PM in Howard Wasserman | Permalink | Comments (0)

St. John's Law School: Home of the Prediction Theory of Law

For the second year in a row, St. John's Law School is dominating Bloomberg Law and SCOTUSblog's Supreme Court Challenge. Two of my former Constitutional Law students (who ended up coming in first and third last year) are sitting pretty in the fifth and sixth spots. And a new group of SJU competitors, auspiciously named "The Federalists," are poised to strike at number seven. Right now, nobody's beating the great Goldstein...but there's still a lot more game to play. 

Posted by Marc DeGirolami on June 6, 2014 at 10:39 AM | Permalink | Comments (1)

Thursday, June 05, 2014

'Bring Back Our Girls' - Failure to Enforce the Rule of Law as a Crime Against Humanity

The media has been saturated with stories of violence against children and women in developing countries and the lack of meaningful action by government officials.  As a recent example, hundreds of girls in Nigeria were kidnapped from a boarding school and Nigerians have criticized the government for failure to sufficiently act.  In India, two girls were raped and hung from a mango tree while, villagers allege, the police stood by.  In Pakistan, a pregnant woman, while literally standing on the courthouse steps of a high court, was stoned to death by relatives even though such "honor killings" are illegal. 

Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice.  No doubt, there is a rule of law problem.

Rule of law issues are complex.  Developing countries do not have the funds to enforce laws.  Citizens of developing countries are often unaware of their rights and protection under the law.  Corruption is a problem throughout law enforcement agencies and the justice system, from the police to the prosecutors and the judges.  The international community needs to do more to help battle this corruption (of course, this is not to say that we don't have our own major corruption problems on the domestic front).  The rule of law problem is so pervasive in some of these countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face daily.  Focus (and funds) should be shifted away from simply providing material aid, and instead more attention should be given to establishing the rule of law. 

It doesn't matter how healthy or educated a young girl is if she is raped without any recourse or murdered without any justice.  This is the subject of my current research project where I argue that the failure by high ranking government officials to enforce their countries' laws could establish a crime against humanity under the Rome Statute.  A systematic failure to protect a large portion of the population (i.e., women and children) from murder, rape and other inhumane acts fits the definition of a crime against humanity.  There are some potential problems with this analysis, though. 

Even if the failure to enforce laws (an act of omission) could constitute a crime against humanity, could anyone really be charged?  Many developing nations (including India and Pakistan) have not ratified the Rome Statute.  However, the U.N. Security Council has referred a few matters (Sudan and Libya) to the International Criminal Court.  In the Sudan matter, the ICC issued an arrest warrant for the leader of Sudan under the Rome Statute even though Sudan is not a party member.  With enough international pressure, perhaps the Security Council would act again.  Even if it did not, some of the countries where gender and children violence is pervasive are parties to the Rome Statute (like Nigeria).

Second, and perhaps more important, even if a government official is charged with a crime against humanity, so what?  The ICC is struggling with number of issues, including the problem of enforcement.  Despite the issues surrounding the ICC, however, the shame brought upon an individual with a crime against humanity charge (or investigation) might send a strong message that the international community believes in the rule of law.

Posted by Naomi Goodno on June 5, 2014 at 03:39 PM in Criminal Law, Current Affairs, Gender, International Law, Law and Politics | Permalink | Comments (2)

Correcting the Crack/Powder Cocaine Sentencing Disparity

Yesterday, SB 1010 passed in the California Senate, and it is on its way to the Assembly. The purpose of the bill is to eliminate all disparity between the sentences for possession with intent to sell of crack  and powder cocaine, by reducing the sentence for the former from 3, 4, or 5 years, to 2, 3, or 4 years. It also eliminates the differences in quantities (a 1:2 ratio in California) between the two drugs for a variety of manufacturing offenses and mandatory prison sentences. 

For those unfamiliar with California sentencing, we do not have a sentencing commission. Our sentences are meted out by the legislature, and felony sentencing follows a "triad" of offenses. After Cunningham v. California (part of the Apprendi line of cases), the judge can pick any of the three sentences (but nothing above, below, or in between).

The passage of SB 1010 is a reminder of how much the zeitgeist has changed. Four District Attorneys--in Los Angeles, Santa Barbara, Santa Clara, and San Francisco--are supporting the proposition. In a few short years, the crack/cocaine disparity has lost favor fairly dramatically.

That the disparity is proxy for racial discrimination is now a commonly held perspective (see here and here), but it is not a wall-to-wall consensus. There are still commentators who believe that the addictive power per molecule justifies a disparity, and others who attribute the rise in urban crime in the 1990s to the crack epidemic. As many readers know, the Obama administration reduced the federal disparity from 100:1 to 18:1. With public climate about crack sentencing considerably altered since the 1990s, I think we can expect SB 1010 to pass in the Assembly in August and reach Governor Brown's desk soon.


cross-posted to California Correctional Crisis.

Posted by Hadar Aviram on June 5, 2014 at 09:56 AM | Permalink | Comments (1)

Wednesday, June 04, 2014

Ashker v. Brown Receives Class-Action Status

The struggle against solitary confinement in CA continues. This week, U.S. District Court Judge Claudia Wilken awarded Ashker v. Brown class action status, enabling the inmates to challenge long-term solitary confinement beyond their particular circumstances.

A bit of background (for more than a bit, go here): California has been building and using supermax prisons with SHU units since the 1980s. There are two main ways to find oneself in solitary: either you are disciplined for an infraction of prison regulation, or you are suspected of an association with a gang. In the former case, your stay will be limited; in the latter case, you could be placed in solitary confinement indefinitely, with your only options of departure being "parole, snitch, or die." The second of these consists of a process called "gang validation", in which the person provides information on other gang members--a process that yields a lot of inaccuracy because of the unhealthy incentives. The result is that people have spent years, and sometimes decades, in regimes that cause untold medical and mental health hardships, without human contact, with limited access to books, and sometimes, double-celled in very close quarters (which sort of defies the purpose and is, in Keramet Reiter's words, "differently horrible.")

The struggle against solitary confinement has led CA inmates to conduct three hunger strikes, the last of which was fairly recent and claimed at lesat one death that I know of. The background to the hunger strike is best explained in this fascinating read. The strike ended with a legislative promise to conduct hearings about the effects of solitary and the humanitarian implications. Said hearings were, indeed, conducted, and yielded a bill that, if enacted, would limit the correctional authorities' ability to inflict indefinite solitary confinement.

At the same time, litigation proceeded, with today's decision to grant class action marking one more step toward a public debate about the value of this punitive, cruel regime.

Posted by Hadar Aviram on June 4, 2014 at 08:53 PM | Permalink | Comments (0)

Setting traps in a deposition

A while ago, I linked to a New York Times Verbatim video, in which actors recreate depositions, based on the transcripts. In this one, a lawyer gets increasingly agitated as he goes round and round with the deponent about the meaning of "photocopier." At the time, I missed this feature on the lawyer taking the deposition, David Marrburger, a partner at Cleveland's Baker-Hostetler. Marburger states that in reality he was not angry or agitated during the deposition; he actually enjoyed stringing along the deponent (the exchange goes on for 10 pages), who clearly had been prepped by his lawyer to obfuscate, in a way that was going to make him and the defendant look bad. Watching the reenactment, it was pretty obvious what the deponent was doing and pretty easy to guess why. While the video is funny, the background story provides a nice lesson both for lawyers defending depositions against doing this and for lawyers taking depositions about how to handle it.

Posted by Howard Wasserman on June 4, 2014 at 08:14 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Personal Precedent in Bay Mills

Justice Scalia recently went out of his way to acknowledge that he'd made a mistake. No, I'm not talking about his much ballyhooed factual error from last month. Instead, I'm talking about last week's decision in Michigan v. Bay Mills Indian Community, where Scalia's separate dissent drew attention to a substantive change in his views on tribal sovereign immunity. Meanwhile, Justice Ginsburg dissented separately in Bay Mills in order to underscore her persistent opposition to several strands of sovereign immunity doctrine.

These dissenting opinions in Bay Mills showcase an underappreciated aspect of Supreme Court decisionmaking -- namely, each justice's special attention to his or her own past decisions, as distinguished from the decisions of the Court. This parallel and sometimes disruptive system of individualized stare decisis might be termed "personal precedent."

By way of background, Bay Mills was a 5-4 decision that largely rested on the 1998 precedent Kiowa Tribe of Okla. v. Manufacturing Technologies, which concerned the scope of tribal sovereign immunity.  Justice Thomas wrote the lead dissent arguing that Kiowa should be overturned.  He collected an unusual coalition consisting of Justices Scalia, Ginsburg, and Alito.

Because Justice Scalia joined the principal dissent, he didn't have to write separately. Yet he did. In particular, Scalia wrote his own one-paragraph dissent noting that he himself had signed onto Kiowa.  As Scalia bluntly put it, "Rather than insist that Congress clean up a mess that I helped make, I would overrule Kiowa and reverse the judgment below."

Meanwhile, Justice Ginsburg also filed a separate dissent. Ginsburg lead off her roughly page-long discussion by pointing out that she was among the original dissenters in Kiowa, which she still believed ought to be overruled. But Ginsburg also pointed out that she'd dissented from a number of state sovereign immunity cases. Neither type of sovereign immunity, Ginsburg asserted, "will have staying power." Consistent with those views, Ginsburg has continued to dissent from the Court's state sovereign immunity cases while noting her disagreement with the governing precedents (see footnote 1 of Justice Ginsburg's Coleman v. Court of Appeals of Maryland dissent, for example, which was joined by Justice Breyer, another persistent dissenter, but not by Justices Sotomayor and Kagan, who weren't on the Court when the relevant precedents issued).

The Bay Mills dissents reflect the justices' frequent concern for personal consistency, as distinct from consistency with Court precedent.  These two forms of stare decisis can come into conflict, particularly when justices adhere to their own past concurrences or dissents, instead of binding precedents issued by the Court. Justice Ginsburg's Bay Mills and Coleman dissents are arguably examples of that phenomenon. (For related critical discussion, check out this essay on "Perpetual Dissents" by Allison Orr Larsen.)

Scalia's separate dissent in Bay Mills likewise springs from his desire to account for the force of personal precedent. Though not entirely clear, it seems that Scalia had to overcome not just the traditional precedent of Kiowa, but also the personal precedent that he established in that case. Scalia's attention to personal precedent might play an important role in other cases this term. For example, commentators have suggested that Scalia's past writings might cause him to become the unlikely "savior" of public sector unions.

Yet Scalia's dissent also illustrates that personal precedent can have unexpected consequences. The Bay Mills majority argued that common law precedents like Kiowa should be super-strong, since they are susceptible to legislative override. But Scalia's Bay Mills dissent seemed to turn that idea around, based on Scalia's own personal sense of responsibility: Scalia had "helped make" what he regarded as "a mess," so it was up to him (not Congress) to "clean [it] up." Remarkably, Scalia cast his personal precedent in Kiowa as a kind of anti-precedent, justifying corrective measures.

For what it's worth, I tend to be skeptical of personal precedent. For example, whether Scalia and Ginsburg personally concurred or dissented in Kiowa seems irrelevant to whether those justices should have dissented in Bay Mills. If generally applicable criteria for overruling are met, then overrule; if not, then not. Any other approach would undermine the stabilizing norm that dissenters today are fully bound by the majority tomorrow. But I can see points on the other side. For instance, the justices seem to care about personal precedent, perhaps because it's linked to their public images or legacies, and it's typically better for them to be open about their reasons for decision. More broadly, there are accountability, predictability, and other pragmatic benefits associated with candidly confessing personal error, even (or especially) when doing so isn't necessary.

Whether for better or worse, personal precedent likely hasn't made its last appearance in OT2013.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 4, 2014 at 04:46 PM | Permalink | Comments (2)

Constitutional Legitimacy and Constitutional Interpretation

This is the fourth summer in which I am teaching a summer seminar on constitutional theory (which I like to bill as “the most fun one can possibly have in a law school at 7:30 on a Friday morning”).  One of the things I’ve picked up along the way is that my students find themselves much more comfortable assessing the array of competing approaches to constitutional interpretation if we spend some time at the outset discussing the question of what it is that legitimates the Constitution in the first place. 

The question of constitutional legitimacy and its connection to interpretation is something that, to my way of thinking, assumes much less prominence in con law scholarship and teaching materials than it should.  I’ll focus on teaching.  Constitutional law is frustrating for a good chunk of students due to its lack of firm footholds.  In pretty much everything else in the first-year curriculum there’s at least rough agreement on the aims of the body of law under study, and thus there are accepted premises from which to argue.  In Con Law, in contrast, almost everything is up for grabs. Gerhardt, Griffin, Rowe, and Solum (whose Constitutional Theory book I use) capture this nicely in their opening sentences: “A colleague likes to say that ‘the trouble with constitutional law is that nobody knows what counts as an argument.’  It may be more accurate to say that plenty of people think they know what does or should count, and that they often disagree.”

It seems to me that it’s critical to a full understanding of constitutional law and argumentation to recognize that our collective commitment to pay attention to the document is necessarily based on something outside the document.  The point has been made by plenty of people.  Whether it’s phrased in terms of preconsitutional rules (as discussed by Richard Kay or Fred Schauer), a sociopolitical commitment (Daryl Levinson), or some sort of weak consent or acquiescence (Michael Dorf), in an important sense we pay attention to the Constitution because we’ve decided to pay attention to the Constitution, or at least haven’t collectively decided not to pay attention to the Constitution. 

It follows, or so it further seems to me, that the nature of the mechanism by which we commit to the Constitution, and the nature of the commitment it entails, are both important to the divining the meaning of the document itself.  If it’s the consent (loosely defined) of the present-day “we the people” that matters, then we will likely think very differently about how we interpret the document than if it is the consent of the framing generation that’s the key.  (Of course, even if the operative commitment is necessarily a present one that commitment could well incorporate past commitments.)  And maybe we’d conclude, with Judge Posner, that this pursuit leads inevitably to leaps of faith and that pragmatism is the only way out.  It is not so much the destination that matters as the journey.  There is value in understanding that the disagreements that manifest themselves in the justices’ opinions are sometimes products of differences that go to the very nature of constitutionalism.

Teaching-wise, I like to open the semester in Con Law by introducing the fact that the Constitution was, in a sense, an illegal document, in that it was drafted by a group that knowingly exceeded its charter and was ratified via procedures that did not comply with the requirements of the Articles of Confederation.  This allows me to introduce the suggestion that it’s nothing within the Articles or the Constitution that leads us to pay (or not pay) attention to them.  Further, whatever it is that leads us to recognize the Constitution as the supreme law of the land rather than an illegal document probably has something to say in helping to critically approach questions about how we should interpret the document, including the appropriateness of things like doctrine, original meaning, tradition, and so on as tools of constitutional analysis.  A quick check of my bookshelf suggests that perhaps forty percent of Con Law case books open with the history of the Constitution’s drafting, that only a few of those reference the “illegality” dynamic, and that only one (Stone, Seidman) points in a significant way to the connection I’ve discussed here.

This is a big can of worms, and there’s much more to say, but in the hopes that I might not yet have crossed the tl;dr threshold I’ll simply note that this seems like a significant oversight.  And not only in the teaching terms that I’ve mostly discussed, but also in the sense that I think a lot of con law scholarship would benefit from a more express recognition of the implications of the connection between legitimacy and interpretation.

Posted by Chad Oldfather on June 4, 2014 at 02:22 PM | Permalink | Comments (10)

Stress and Dissent: Reading Geithner and Warren

If you’ve read the books and academic articles or even watched the movies about the financial crisis, you’ve mostly heard a unified and compelling narrative. On the cynical end, Geithner, Paulson, and Bernanke were Wall Street cronies in bed with the largest banks, the vampire squids like Goldman Sachs, and they used taxpayer money to bail them out. The more generous and nuanced view is that they made unprecedented moves to bail out TBTF banks because the big banks had too much power and sway over them. 

Geithner’s cleverly-named “Stress Test” is the Treasury Secretary’s attempt to convince us that everything we believed was wrong. (You can feel the struggle of Geithner trying to pull at the dominant narrative by watching the painful and uncharacteristically not-funny 45-minute interview with Jon Stewart .) Geithner sat at the very center of the storm from beginning to end. First as head of the New York Federal Reserve, the regulator most entwined with the Wall Street firms, he oversaw the early rumblings of crisis as well as the rescue of Bear Stearns and the failure of Lehman Brothers. Then, as Treasury Secretary, he oversaw TARP, the auto bailout, Dodd-Frank and every other aspect of the financial rescue.  Geithner knows what we think happened and he addresses each of our facts with other facts, each opinion with an insider’s take and each objection with a “reality check.” He did not want to bail out banks for the bank’s sake. He expresses disdain for their excess, stupidity, and herd behavior. He wants us to know that his team bailed them out to save the economy and the public from their collapse. The fear that drove him was not Wall Street failure, but America’s demise. He and his team were convinced that “there would have been shantytowns again” if they mishandled the crisis. And once the war was started, it was necessary to use "overwhelming force."

Geithner is not an arrogant hot-head as all the public accounts seem to indicate (See books by Neil Barofsky, Sheila Bair, and even Warren).  He comes off as humble and down-to-earth. His greatest flaw, and it’s a big one given his position, is that he lacks the gravitas and clarity to speak to the public and instill confidence. His signature is on all of our paper money and he sits at the center of a monetary system that is based purely on public trust. He readily admits that that is the one thing he “sucked” at. (He says the night before he started as Chairman of the New York Fed, he was carded when he tried to buy a beer). He is so aware of his failures in this arena that he runs through a list of media criticisms of some of his biggest public speaking flops, like the speech he gave about TARP that set off a stock market sell-off-- a speech that the Wall Street Journal commentator described as “Shock and uh.” He repeats these quips and more to “marinate” us in his shortcomings, which he also did with the President before he appointed him as Treasury Secretary. Geithner describes himself as an ordinary guy with average grades and average ambitions--or none, really. He goes to work for the government  because he didn’t have a clear sense of what he was good at, didn’t want to go to Wall Street, and because that’s what his dad did. Unlike almost every other memoir or autobiography, Geithner doesn’t offer any past narratives colored by the present—he didn’t for example, realize he was “good with money” by running a lemonade stand and he didn’t learn how to deal with crisis because of his childhood spent living abroad. His narrative is an honest, just-the-facts story without much self-reflection or moralizing.

Geitner’s basic message is that he and his team were first responders in a financial collapse and their goal and major achievement was to prevent the U.S. financial system to go over a cliff. His book demands that we measure their success by that metric. They saved us from collapse and earned a profit to boot! What’s everyone whining about? He calls some of his critics “populists,” “moral hazard fundamentalists,” and those who wanted “Old Testament Justice.” Geithner had no time for such grandstanding and rhetoric. He keeps repeating: “plan beats no plan.” He had a fire to put out and he was singularly focused on putting it out. His mantra was “no more Lehmans.”  According to Geithner, his failure to bail out Lehman, due in part to the Brits dropping the ball and not having enough authority, was the avoidable problem that set off an irrational panic.  In this account, it’s hard to argue that Geithner was nothing short of heroic--or as Michael Lewis says, “unusually brave.” He steered a sinking ship to safety by putting his head down and working tirelessly despite relentless criticism (and mockery) from all sides.

But if Geithner is the hero in this story and the bailouts were the only thing between us and another Great Depression, then why is it still so hard to feel grateful? Part of it is that many people are still suffering. But the other part is that any story in which the protagonist saves us all from disaster by giving cash to big banks is not a story that can easily put us at ease.

Geithner is invested in writing the history of the crisis from his perspective and he is honest and thorough as he does it, but maybe what he views as noisy naysayers and “fundamentalists” weren’t just obstructionists who didn’t appreciate the gravity of the situation. Maybe they just wanted to play a different game.

Elizabeth Warren’s “A Fighting Chance” is an account from one of those populists demanding “Old Testament Justice." “No perp walks. No mass indictments ... Where were the armies of auditors, seizing hard drives and poring over the financial statements?” (Although Warren’s book reads much more like a campaign book—it’s basically “Dreams of My Father” and “Audacity of Hope” rolled into one—short on details and heavy on grandkids, dogs and peach cobbler.) If Geithner’s repeated mantra is “No more Lehman’s” and “haircuts are always a bad idea,” Warren’s is: “the game is rigged.”

Geithner played by the rules of the game to achieve the goals of that game and he did a great, even heroic job. And Warren wants to change the rules of the game so that “winning” has nothing to do with bank profits. She refers to Geithner in her book as someone who always had her back, but whose main interest was to “foam the runway” for banks--make the crash landing as painless as possible and return them to profitability as quickly as possible. And this is where Geithner’s background does prove something. Geithner was not a Goldman executive as everyone thought. He makes this clear over and over again. He was not a Wall Street guy. But he was an umpire in that game. It’s possible he spent so long marinating in the rules of that game, that he couldn’t see anything past the stadium. 

Warren talks about a Time magazine cover in which she, Sheila Bair (FDIC), and Mary Schapiro (SEC) are labeled “The New Sheriffs of Wall Street.” Why were the Sheriff’s of Wall Street all women, she muses, when the majority of Wall Street all men? Because they weren’t invited into the stadium--they were outsiders: “I had never inhabited the world of high finance, never played golf with a foursome of CEOs, never smoked cigars at the club. Some people argue that if you are never in the club, you can’t understand it.” The financial system and the crisis are so complex that few people inside or out understand it and Geithner defends himself against the attacks by saying that people just didn’t understand the complexity or the stakes.  He is critical of both Sheila Bair and Brooksley Born (former CFTC chairman who proposed that derivatives should be regulated when no one else saw them as a threat). Geithner’s condescending analysis is that Sheila just didn’t understand the problem they were dealing with and Born’s proposal for regulating OTC derivatives was “noble,” but she lacked a “concrete and plausible plan.” Warren, he says, didn’t have a workable plan that was better than his--and “plan beats no plan.”

In a democracy, dissent can’t just be dismissed because it comes from outsiders "without a plan." And complexity isn’t a shield from criticism. It’s clear that Geithner did everything he could do. Everything except ditch the play book. Or ask foundational questions: were the Wall Street banks actually providing a benefit to the economy? Why funnel the rescue through the banks in the first place? Is our current banking system the right intermediary for credit? Warren, on the other hand, does just that because as she says “not being in the club means never drinking the club’s Kool-Aid. I had studied the banking system from the outside so none of it was sacred to me.”

In the end, I was surprised by how much I actually liked Geithner. And I’ve never believed that the game was “rigged.” Or at least no one is doing the rigging—no “bad guys” or vampire squids. Just a dogma so pervasive that everyone on the inside seems oblivious to life outside the sacred walls of Wall Street finance. And like religious fundamentalists, all challengers to their faith are seen as wrong or misguided. But we don’t live in a Wall Street theocracy and we need to have a public discourse about what kind of banking system works for all of us.

Posted by MehrsaBaradaran on June 4, 2014 at 12:53 PM in Books | Permalink | Comments (3)

The Flawed NRC Report: What Incentivizes Prosecutors?

(This is Part 8 in my criticism of the recent National Research Council report on incarceration. Here are Part 1 (drug war), Part 2 and Part 3 (longer sentences), and Part 4,  Part 5Part 6, and Part 7 (admissions and prosecutors).) 

As my earlier posts have made clear, that the NRC report does not really focus on prosecutors is disappointing, given the apparently outsized role they have played in driving up prison populations. As a result, the report’s policy recommendations do not target the real causes of prison growth. Given how generally understudied and under-regulated prosecutors are, this represents a truly lost opportunity.

Compounding this error is the fact that when the report does talk about prosecutors, it does so poorly. In this post, I want to examine the report’s analysis of the political incentives of prosecutors. The motivations it highlights are likely not the core ones driving prosecutor behavior, and it worth considering both why those factors aren’t so important and what some important ones could be.

The bulk of the report’s discussion of prosecutors is the following

Incentives for supporting certain kinds of crime-related initiatives also tend to be misaligned across different levels of government. For example, it is relatively easy for local government officials to advocate increased sentence lengths and higher incarceration rates that state government officials are typically responsible for funding (including the building and running of state penitentiaries). Yet, despite taking hard-line positions on crime control, local governments often hire too few police officers (since cities and counties are responsible for paying nearly all local police budgets)….

In the United States, most prosecutors are elected, as are most judges (except those who are nominated through a political process). Therefore, they are typically mindful of the political environment in which they function. Judges in competitive electoral environments in the United States tend to mete out harsher sentences (Gordon and Huber, 2007; Huber and Gordon, 2004). In contrast, prosecutors and judges in many European countries are career civil servants who have evolved a distinctive occupational culture with a less punitive orientation, partly as a result of differences in legal training and career paths between the United States and European countries ….

As I noted in my earlier post, the first paragraph gives far too little attention to the quite-significant moral hazard problem that arises when a county official can spend unlimited state dollars; I won’t belabor that point here. It’s the second paragraph I want to turn to now.

The report argues that as local officials, prosecutors and judges are sensitive to local demands to be tough on crime. The only papers the report cites are those by Gordon and Huber, which look at judicial behavior in Kansas (2007) and Pennsylvania (2004). These are both well-designed, insightful papers,* but they focus on judges, and on a subset of judges at that. (The report’s statement that “most judges [are elected]” elides over the fact that the way in which judges are elected varies widely, with likely implications for their behavior.)

But what about the effect of elections on prosecutors? The Gordon and Huber papers are not particularly relevant, though the report does not mention this. The paper on Pennsylvania bases its model on the fact that Pennsylvania judges, facing retention elections once a decade, operate in low-information environments; in such settings, judges are most concerned with a single bad high-profile case. That simply doesn't describe the political world of prosecutors, who are elected more regularly and likely in higher-information settings (although just how much higher is a valid empirical question to consider).

The paper on Kansas focuses on conditions more like what a prosecutor would face—shorter-term and thus higher-information elections—but it addresses a policy issue not available to prosecutors: how the choice between partisan elections and appointment/retention elections shape behavior.We can change how judges are selected, and have done so repeatedly; elections are here to stay for prosecutors.

That the report only relied on papers about judges is particularly distressing because there is at least one paper directly on point for prosecutors. Ronald Wright has published a paper bluntly titled “How Prosecutor Elections Fail Us.” He points out that DA turnover is low (40% of the DAs in his sample have held their positions for over 12 years), and in a 10-year, 10-state survey of electoral outcomes he finds that DAs win 95% of the elections in which they run (and they ran for re-election in 75% of the races). More tellingly, in 85% of the races in which they ran, incumbents ran unopposed.** Such lack of competition can be seen anecdotally: when Joe Hynes recently lost his re-election campaign after 23 years in office, he became the first sitting DA in Brooklyn to lose a re-election bid in over 100 years.

In other words, district attorneys appear to be relatively political aloof. Of course, low turnover could reflect a powerful electoral accountability: DAs are so afraid of angering the electorate that they are near-perfect agents and thus get easily re-elected. But this seems unlikely. Regardless, Wright’s point is one that demands attention, and the report  omits it.

So what does motivate DAs? It’s a good question, and one that has received very little analysis. One colleague, though, suggested an idea that is to me quite interesting: what if what matters isn’t election to the district attorney’s job, but to the next one? What if DAs are punitive because it makes it easier to run for judge, or AG (and from there to governor), or Congress, etc., etc., etc.? And what if the political ambitions of DAs have grown stronger as, say, crime rates rose and the DA became a more high-profile, and seemingly more important, job? 

The report points out that elected DAs act differently than their more-bureaucratic counterparts, implicitly suggesting that we should shift toward a more-European system. (Although another article by Ron Wright, written with Marc Miller, gives some pause, given that its title is "The Worldwide Accountability Deficit for Prosecutors"). But while that could matter for line prosecutors, if DAs are still looking to the next higher office, then it isn’t really the electoral pressures of the DA’s office that is driving punitive behavior, and thus we need to think about how to regulate DA behavior in a much different way.

This point is clearly hypothetical, one that merits closer attention but hasn’t received any (yet). But it indicates that the simple analysis of the NRC report clearly does not do the complexity of this issue justice.


* The paper on Kansas exploits the fact that about half of Kansas judicial districts rely on appointment and retention elections, while the other half rely on partisan elections. The paper on Pennsylvania takes advantage of different judges in the same district being elected at different times. A paper by Jason Czarneski, uncited in the report, identifies similar punitive-right-before-an-election behavior by elected state supreme court justices in Wisconsin.

** The more-relevant Gordon and Huber study on Kansas looks at the implications of facing a viable competitor. But apparently few DAs face such, again reducing the applicability of that paper to DAs, however valid it is at explaining judicial outcomes.

Posted by John Pfaff on June 4, 2014 at 11:20 AM | Permalink | Comments (3)

The Future of Polyamorous Marriage

Last summer, as the LGBT community rejoiced over the Windsor and Perry decisions, polyamorous activists spoke out to remind us that true marriage equality has not been achieved yet (here and here are some articulate posts about this.) The Bay Area polyamorous community has held a couple of political summits since the decisions, and in both of them several activists expressed their bitterness about how the LGBT community, who they vocally and actively supported in their struggle for marriage, "threw them under the bus" and distanced itself from them as part of its legal strategy.

Indeed, you may remember that this actually came up in the oral argument in Perry. Justice Sotomayor asked Ted Olson:

If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?

Mr. Olson responded:

Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.

It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case. There's a -- there's a different --

Olson’s response is problematic on various levels.

First, it assumes that multiple marriages generate “exploitation, abuse, patriarchy” but presents no data to support this assumption. And second, its distinction between “conduct” and “the exercise of a right based upon status” is murky at best. After all, marriage, between partners of any number or gender, is a “conduct”, and whether or not prohibiting it is based on status would depend upon whether sexual orientation, and monogamy orientation, are a status—with at least some commentators, like Ann Tweedy, arguing that polyamory could be perceived as a sexual orientation. But what is more interesting about Olson’s response is the reaffirmation of the general tendency among same-sex marriage supporters to draw a boundary between the struggle for same-sex marriage and a possible struggle for multiple marriage—a rhetorical move addressing the sort of “slippery slope” argument that one often hears from conservative opponents like Rick Santorum.

As Ann Tweedy pointed out in The Faculty Lounge that summer, the success of the same-sex marriage struggle seems to have encouraged poly people to consider marriage much more seriously than they did when I did field work on the community in 2005. This made me and Gwendolyn Leachman, a fellow JSP graduate recently hired by University of Wisconsin and a terrific social movements scholar, think about the question of poly marriage a bit differently. If poly activists are considering mobilizing for legal recognition of their relationships, what can they learn from the struggle for same-sex marriage? How can they overcome the effects of the LGBT community's efforts to distance itself from the poly community in litigation, political action, and public opinion appeals? and, how can it sort out practical issues like taxation, health care, and immigration? This was particularly interesting to us in light of the history of the LGBT marriage struggle itself, which, as Michael Boucai proves in his meticulous and inspiring historical work, was in the 1970s a radical, unthinkable, conceptually difficult task, very very different from its mainstream image today. We just presented our paper on this at the Law and Society Association annual meeting and got great feedback, and are continuing to think about this.

What do you think? How can a social movement that hopes to build on incremental change overcome the "distancing" techniques of its predecessor?

Posted by Hadar Aviram on June 4, 2014 at 09:07 AM in Constitutional thoughts | Permalink | Comments (11)

Tuesday, June 03, 2014

A Sponsored Announcement from West Academic

The following guest post is authored by Prof. Michael Vitiello of McGeorge.

Finding bad news about legal education is easy.  And some of the bad news is deeply troubling.  No one in legal education can be insensitive to the slowly recovering employment market and to concerns about student debt.  But some of the gloom and doom about law schools is just wrong.

In 2011, David Segal wrote a series of articles that appeared on the front page of the New York Times.  His articles did not say anything new about legal education.  But the appearance of his views on the front page of the Times made Segal’s voice important.

Some of Segal’s criticisms are legitimate. But one aspect of his critique was galling.  In one article, after observing that young lawyers have spent over $150,000 for their legal educations, Segal commented, “What they did not get, for all that time and money, was much practical training.”  Segal also contended that the law school curriculum has changed little since the days of Dean Langdell.  Segal’s portrayal of legal education was stereotypical and one dimensional.

When I graduated from law school 40 years ago, the statement about limited practical training was true.  Even then, law schools were putting in place legal clinics and volunteer programs to give students on-hands experience.  To continue to insist that little has changed in the past three decades demonstrates a lack of awareness of what goes on in law schools around the country.

Start with changes in skills based courses like legal writing and moot court. 

Within the past 25 years, many schools have converted their programs from one or two unit pass-fail courses often taught by upper level students to far more demanding programs.  Most schools hire tenure track or long term contract professionals.  Many law schools offer rigorous writing programs and train students in oral advocacy skills.  That has been the pattern at McGeorge.  The directors of our Global Lawyering program have created a nationally recognized writing program.  The program spans the first two years and offers students with a wide range of practical skills.  For example, during their 2 L year, students argue multiple motions in a “district court” after they have submitted memoranda to the court.  Their earlier memoranda culminate in a full appellate brief, submitted and argued individually to an appellate court.  Each student argues before a three judge panel.  The realistic litigation problem introduces students to international law as well.  For example, students may have to argue whether domestic or foreign law applies because the problem presents a conflict of law question.

Skills education goes well beyond clinics, legal writing, trial advocacy, and externship programs. Many professors have integrated skills training into more traditional courses.  I offer my own example as someone who came into the academy after three years of experience, mostly as a judicial clerk.  Many years ago, I realized the necessity of integrating simulation exercises into my Civil Procedure course.  Concepts like personal jurisdiction and summary judgment challenge the best students; students have trouble grasping concepts that lack any intuitive feel.  For many years, I pieced together simulation exercises; but I did not provide systematic exposure. 

That all changed when my acquisitions editor at West Academic Publishing accepted my proposal to publish a series of simulation books.  The books in the Bridge to Practice Series™ are designed to supplement traditional casebooks across the curriculum.  Priced reasonably, the paperbacks run between 100 and 200 pages.  Each contains a series of simulations with a teacher’s manual detailing how the professor can integrate the simulations into their “podium” courses.

For example, Civil Procedure Simulations: Bridge to Practice, which I wrote, includes nine simulations.  On the first day of class, students meet a young woman who has learned that an internet journalist intends to publish a story asserting that her boss, a prominent judge, and she downloaded child pornography on their office computers.  They must not only interview her but also decide whether the prospective client should file an action in New York, where they are licensed, or Connecticut.  (Although they do not fully understand the importance of that choice until later, they begin to get a sense that choice of law problems lurch near the surface:  if New York tort law applies, the client may have no claim for relief, while her case can move forward under Connecticut law.)  Later in the semester, they argue a motion to dismiss for lack of personal jurisdiction before a magistrate judge (one of my research assistants).  Still later, they submit memoranda arguing for or against a motion to dismiss for the failure to state a claim for relief.  The simulation tests their ability to decipher the Supreme Court’s new test in two controversial decisions, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.  They also submit memoranda, arguing whether the court can grant an amendment to add additional defendants after the statute of limitations has run.  Over the course of most of four weeks, they engage in discovery exercises and must hand over documents from a packet of material or determine whether and how they can resist.  Finally, they submit memoranda assessing whether the court should grant summary judgment in the case.

I am looking forward to using Criminal Procedure Simulations: Bridge to Practice during the fall semester when I will be teaching the course at night.  Anyone who has taught three hours at night knows the pitfalls:  exhaustion of the students and the professor make even the most interesting material a challenge. The Criminal Procedure Simulations book, which I also authored, includes a wide variety of exercises, including one in which the students must advise the senior partner on litigation strategy.  Others assign students roles so that they can conduct a hearing and then argue a motion to suppress; yet others involve arguing a motion to suppress from facts developed in a hearing transcript; still others involve short writing assignments; and others allow for appellate arguments.

The series is expanding.  Already in print are Galves, Imwinkelried and Leach's Evidence Simulations: Bridge to Practice; Sprankling’s Property Law Simulations: Bridge to Practice, and Cerrnak’s Antitrust Simulations: Bridge to Practice.  Other books, including volumes in contracts, professional responsibility and criminal law, are in progress.  Additional volumes are under discussion, including torts, immigration law, constitutional law, advanced criminal procedure, and business associations.

By way of circling back to my original point, I offer my experience and the Bridge to Practice books as examples of some of the changes that have taken place in legal education.  They are hardly unique.  Segal should have dug deeper and questioned his thesis before broadly criticizing legal education.  In fact, legal education has changed in meaningful ways.  And while no large corporate law firm would trust a new associate to prepare a corporate merger, graduates today have far more practical training than lawyers graduating 40 years ago.  Indeed, Dean Langdell would not recognize legal education today.

Posted by Administrators on June 3, 2014 at 01:55 PM in Sponsored Announcements | Permalink

The Internet and Violence on Campus

I want to thank Dan Markel and everyone at PrawfsBlawg for the opportunity to guest blog this month.  As a regular reader, I am honored to officially join the conversation.

Because of the recent tragedy at the University of California, Santa Barbara, where Elliot Rodger murdered six students, I have been thinking a lot about violence in school.  Although Rodger wasn't a current student and didn't use the internet to threaten one specific individual, his video messages posted on YouTube were clearly directed at students at the school.  I have written about the intersection of the internet and school violence, but my focus was on K-12 public schools, not public universities.  These cases raise complex First Amendment and due process challenges.  When does a public school have the authority (or the requirement) to regulate off-campus speech that bullies or threatens other students or school officials?  As for K-12 public schools, the courts are all over the board in their decisions and the U.S. Supreme Court has yet to rule on the issue.  Because the pedagogical goals are different in college than in K-12 school, these issues become even more complex in the public university setting.

In a recent case, Tatro v. University of Minnesota, the Minnesota Supreme Court held that a public university could discipline a student enrolled in a professional program for posting inappropriate comments on Facebook that violated her academic program rules without impinging on her free speech rights.  The University disciplined Tatro, who was enrolled in the undergraduate mortuary science program, for posting off-colored remarks about a cadaver in an embalming lab.  The Court only sided with the University because the University's rules were narrowly tailored and directly related to the professional conduct standards of the student's program.  Although this case did not raise issues about violent comments created off-campus, it does bring to the forefront issues that desperately need resolution.

First, does the Tinker v. Des Moines Independent School District standard, which, in part, allows schools to regulate speech that substantially impinges upon the rights of others, apply to speech that students make off-campus and post on the internet?  If so, does that same standard apply to college students?  I have argued that the Tinker standard should apply to K-12 public schools, but the analysis seems different for public universities.  Not only are most college students legally adults who should be afforded more speech protection than minors given their presumed cognitive development, but colleges themselves are supposed to be bastions for the free exchange of ideas.  Thus, even if the Tinker standard applies to off-campus speech in the university setting, the bar should be much lower.  But, even with a lower bar, college officials should be required to take action when there are threats or extreme bullying - of course, what constitutes "extreme bullying" (my phrase) raises a host of other issues. 

Given this digital age and that social-networking sites pervade people's daily lives, students will undoubtedly continue to use the internet as the forum in which to air grievances, bully, make threats, and even post suicide notes.  I would be interested to hear what others think about how schools should respond to these issues.

Posted by Naomi Goodno on June 3, 2014 at 01:44 PM in Constitutional thoughts, Criminal Law, Culture, Current Affairs, First Amendment | Permalink | Comments (2)

Bond and the Doctrine of One Last Chance

Yesterday's decision in Bond v. United States provides the latest example of perhaps the most salient methodological theme of the Roberts Court. Faced with an attractive first-principles argument that threatened immediate doctrinal and real-world disruptions, the Court punted. Instead of resolving the constitutional issue presented, the Court found a barely tenable way to avoid resolving the issue altogether, thereby creating the possibility of a more secure opportunity to rule at a later date. In a recent Green Bag essay, I called this phenomenon "the doctrine of one last chance." If Bond really does fit that description, then the Court wouldn't simply have engaged in conventional avoidance, which is constant over time. Instead, the Court would have engaged in super-strong but strictly time-limited avoidance. If the issue arose again, the Court's hesitancy would evaporate.

The doctrine of one last chance holds that the Court must stay its hand once -- but just once -- before issuing immediately disruptive decisions. This precept most obviously arose in Northwest Austin Municipal Utility District No. 1 v. Holder, where the Court adopted an extraordinarily strained statutory reading to avoid what would have been an immediately disruptive result: invalidating the Voting Rights Act's coverage formula. But the Court didn't truly avoid the constitutional merits -- instead, it packed its decision with dicta suggesting that the merits would likely be decided against the Act's constitutionality. In this way, Northwest Austin gave notice that the coverage formula was in trouble, thereby affording the political branches a window of time in which to take action. This hesitancy was nowhere to be found in Shelby County, Alabama v. Holder, which the Court chose to hear despite the absence of a circuit split. By exhibiting a high degree of restraint in the moment, Northwest Austin ironically established the groundwork for Shelby County's subsequent invalidation of a key federal statute with bipartisan support in Congress.

Bond looks a lot like Northwest Austin. In Bond, the constitutional issue concerned federal legislation implementing the Chemical Weapons Convention. Ruling on that issue could have taken the United States out of compliance with a major international agreement -- and at a time when U.S. foreign policy substantially involves curbing the use of chemical weapons in places like Syria. Moreover, a disruptive holding in Bond would have been in the headwind of the most on-point precedent, Missouri v. Holland. These are the kinds of immediate practical and doctrinal disruptions that trigger the doctrine of one last chance. So, true to form, the Court (per the Chief) found a tenuous statutory interpretation while casting doubt on the apparently broad scope of relevant precedent -- much as happened in Northwest Austin. In particular, Bond included suggestive language indicating that Holland might be subject to narrowing. For instance, Bond ends by saying that the government's view of the case posed a "dramatic departure" from the original "constitutional structure." Having given this warning, the Court might not be so determined to engage in avoidance the next time.

Of course, there's no guarantee that the Court will actually follow through on Bond's tacit threat. A key virtue of the doctrine of one last chance, after all, is that it can eliminate the need ever to issue a disruptive holding. For instance, the political branches might act to avoid future confrontation with the Court, such as by more carefully drafting implementing legislation. Or the United States might exercise prosecutorial discretion so as to avoid creating other vehicles for Supreme Court review. Alternatively, the extra time that the Court has bought by punting in Bond might generate new information that could persuade the Court to change its views on the merits in the next case. That seems like a live possibility, since Bond didn't tip its hand in quite the dramatic way that Northwest Austin did -- perhaps because three of the justices skeptical of Holland didn't join the majority opinion and were somewhat at odds with one another as to the nature of the constitutional problem. Still and all, Bond has meaningfully changed expectations as to the scope of congressional power. The Court has inaugurated a period of heightened doctrinal uncertainty as to Congress's authority to implement treaties. Potentially affected parties will adjust their behavior as they see fit, in anticipation of a possible next case.

It's more difficult to say whether this distinctive brand of constitutional avoidance is justifiable. In terms of enhancing judicial predictability and minimizing transition costs, the doctrine of one last chance looks pretty good. But in lowering the costs of legal change, the doctrine likely increases the frequency of both threatened and actual disruptions. The doctrine also calls into question the Court's supposedly reactive judicial role, by converting a core principle of judicial restraint into a means of judicial empowerment.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 3, 2014 at 01:05 PM in Judicial Process | Permalink | Comments (2)

From Reproductive Crimes to the Prison Industrial Complex

This coming October, the Hastings Women's Law Journal will hold a special symposium on family and reproduction in prison, which is incredibly timely. Several important stories from the last few years have raised serious concerns about the correctional authorities' responsibility for women's health, pregnancy, and birth in prison.

First, as you may recall, there were efforts to restrict the notorious and common practice of having incarcerated women give birth while shackled. It's fairly obvious why this is an extremely barbaric practice, and this ACLU report adds some important details.

Then, we heard with shock about a sterilization of female prisoners in California, with very questionable consent. This eventually yielded SB1135, which prohibits the practice.

And just a couple of days ago, this was in the news. Nicole Guerrero, a pregnant inmate in Texas' custody, was placed in a solitary cell, repeatedly begging for help as her water broke and she was in labor, her cries for care ignored by the guards. Guerrero's baby died, and the chronology that led to this horrific tragedy includes a nurse who works for a private healthcare contractor. Guerrero is pursuing a §1983 lawsuit against the prison.

There's hardly anything I can say about this truly horrible incident and the cruelty that led to it that won't trivialize it, and the basic facts behind it do not seem to be in dispute.

My only additional thought about this has to do with the fact that Guerrero's tragedy occurred in a public setting--a Texas state prison--but one of the people whose behavior was questionable worked for a private healthcare provider. I think we need to problematize the distinction often made by progressive commentators between state institutions and private providers' institutions. At this point, and in the context of a neoliberal, hypercapitalist economy, it makes a lot less difference who runs the correctional facility overall than these commentaries would suggest. Many functions within state prisons--utilities, phones, cantine services, food, transportation, health care--are partially or completely privatized, as was health care in the institution in which Guerrero was held. Moreover, state actors are behaving like private actors in the market, and many of the corruption scandals and human rights crimes we saw in the last few years--such as Alabama's Sheriff Bartlett's profiteering off his wards' starvation and former Philadelphia Judge Mark Ciavarella essentially selling juveniles to a private contractor for kickbacks--involved public actors. Private prison companies have not cornered the market on cruelty, stinginess, and indifference to human suffering. And wherever a wicked contract is signed, one party tends to be a public actor.

The only answer to this that I can think of is regulation that carefully examines which actors play which roles in exploiting human suffering for profit. Only recently, AB 1876 prohibited the common practice by which sheriffs received kickbacks from phone providers to give them the contract for prison phone services. There are probably ways for sheriffs to bypass this, and we will have to stay fairly attentive to those, but the bottom line is that the lines between the public and the private are so blurred in this economy that maligning "private prisons" misses the point. All actors in these dramas of human cruelty and profiteering--the state included--are acting in a laissez-faire, capitalist market, responding to market pressures, and trying to get ahead; all actors are vulnerable to the sort of indifferent, dehumanizing mentality that seems to have produced the tragedy that happened to Guerrero; and all actors, private and public alike, should be carefully watched and monitored by those who do not want to see more cruelty.


Cross-posted on California Correctional Crisis.

Posted by Hadar Aviram on June 3, 2014 at 09:43 AM | Permalink | Comments (0)

Wow, there is a right that is clearly established

According to the Eighth Circuit, it is the right to destroy an American flag for expressive purposes. And an officer who does not know that is the plainly incompetent officer who does not warrant qualified immunity and should be liable for damages.

A police officer in Gape Girardeau, MO arrested Snider--pursuant to a warrant obtained from a county judge on an application from the county prosecutor--for violating the state's flag desecration law. According to the case, neither the officer nor the prosecutor (nor, we must assume, the judge) knew about Texas v. Johnson; the charges were dismissed and Snider was released when a reporter called the prosecutor and told him about the case. Snider then filed a § 1983 action, claiming the arrest violated the First and Fourteent Amendments.

The Eight Circuit agreed that the officer (who conceded that Snider's rights were violated) lacked qualified immunity. Johnson and United States v. Eichman established in 1989-1990 that someone could not be punished for using the American flag to express an opinion and a reasonably competent officer in 2009 (the time of Snider's arrest) would have known that. The officer was not saved by the judge issuing a warrant; while a warrant typically indicates the officer acted in an objectively reasonable manner in effecting an arrest, this case fell within the exception where no reasonably competent officer would have concluded that the warrant was valid, given the clearly established state of the law.

There is some other good § 1983 stuff in this case, including the unexplained intervention of the State of Missouri, attorney's fees (imposed in part on the State, even though it could not have been liable in the case), and the rejection of a failure-to-train claim against the city (one could argue that an officer who does not know something as basic as Johnson has not been constitutionally trained) because the State, not the local government, is responsible for training local police officers.

Posted by Howard Wasserman on June 3, 2014 at 09:31 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (2)

Monday, June 02, 2014

Prosecutorial Discretion in Bond

Who would have thought that Bond v. United States -- today's much-awaited decision involving the Chemical Weapons Convention -- would have so much to do with prosecutorial discretion? Yet prosecutorial discretion appeared repeatedly in the Court's consideration of the case, serving different purposes each time.

First, the fact of prosecutorial discretion is the critical factor explaining why Bond even arose. By way of background, the defendant Bond used certain harmful chemicals to retaliate against a romantic rival. Bond was then prosecuted for violating federal legislation implementing the Chemical Weapons Convention. In Bond, the Court relied on federalism canons to conclude that the implementing legislation didn't reach Bond's conduct. A major theme of the majority opinion is that Bond is an "unusual" and "curious case" that is "worlds apart" from what anyone would have associated with the Chemical Weapons Convention or its implementing legislation. Another major theme is that the "common law assault" at issue in Bond would normally be handled by state and local government. But if that's so, then why was the defendant federally prosecuted? The answer is that the federal prosecutors involved in the case concluded -- contrary to the intuitive view -- that the Convention's implementing legislation properly applied.

Second, prudent use of prosecutorial discretion was a source of comfort to the majority, since it meant that the Court's statutory holding wouldn't have harmful effects. "[W]ith the exception of this unusual case," Bond noted, "the Federal Government itself has not looked to section 229 to reach purely local crimes." Instead, federal authorities had previously used the relevant statutory authority primarily to prosecute things akin to "assassination, terrorism, and acts with the potential to cause mass suffering," and the Court declined to "disrupt the Government’s authority to prosecute such offenses." In a related discussion, the Court relied on the constitutional value of state prosecutorial discretion to deflect an argument raised by the federal government. In justifying its decision to prosecute in Bond, the United States argued that state and local prosecutors had fallen down on the job in that they had "charged Bond with only a minor offense based on her 'harassing telephone calls and letters' and declined to prosecute her for assault." The Court's response was curt: "we have traditionally viewed the exercise of state officials’ prosecutorial discretion as a valuable feature of our constitutional system."

Finally, the federal government's failure to exercise wise prosecutorial discretion in Bond was, to a great extent, the problem that the Court perceived and chose to solve. That is surprising. Bond was widely expected to be a grand verdict on Missouri v. Holland and the scope of the constitutional treaty power. To the Court, however, that abstract debate seemed far removed from the facts of the case. The real problem was that federal prosecutors had overreached. As Justice Kennedy told the Solicitor General during oral argument: "It ... seems unimaginable that you would bring this prosecution." But bring it they did. The solution was to prevent such overreaching in the future. As the Court put it: "Here, in its zeal to prosecute Bond, the Federal Government has 'displaced' the 'public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign,' that Bond does not belong in prison for a chemical weapons offense." Under the Court's narrowed reading of the statute, that problem will no longer arise.

Bond's discussion of prosecutorial discretion calls to mind other instances where the Court has policed federal attorneys.  In United States v. Stevens, for instance, the Court (per the Chief, as in Bond) noted that the United States had repeatedly invoked "its prosecutorial discretion" as a potential cure for First Amendment problems.  The Court retorted: "But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige." A related sentiment is at work in Bond.

Looking ahead, the decision in Bond is likely a harbinger for the recently granted case Yates v. United States, where a defendant was convicted of violating Sarbanes-Oxley's "anti-shredding" prohibition by throwing illegally caught fish off his boat. Critics have viewed Yates as an instance of federal prosecutorial overreach accomplished by reading statutory definitions in an unnaturally broad way. Surprisingly, the statutory issue in Yates will be informed by the Court's most recent brush with the treaty power.

 The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 2, 2014 at 04:20 PM in Criminal Law, Judicial Process | Permalink | Comments (3)

Please stop, Chief

From Bond v. United States:

"[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard." (in fairness, the kitchen cupboard language was in the Third Circuit's opinion). Earlier, Roberts posed a hypothetical about "[a]ny parent . . . when, exasperated by the children’s repeated failure to clean the goldfish tank, he considers poisoning the fish with a few drops of vinegar." (Seriously? Seems like extreme parenting).

I have wondered before whether Robert's penchant for these flourishes makes for good writing or whether it is incredibly distracting. I am still wondering.

Posted by Howard Wasserman on June 2, 2014 at 02:23 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

The Flawed NRC Report: Why The Mystery of the Missing Prosecutor is So Damn Important

(This is Part 7 in my criticism of the recent National Research Council report on incarceration. Here are Part 1 (drug war), Part 2 and Part 3 (longer sentences), and Part 4,  Part 5 and Part 6 (admissions and prosecutors).) 

I’ve already written three posts on the NRC report’s failure to think about the prosecutor, and I have a few more to come. But I thought it could be helpful to pause for a moment, take a step back, and make it crystal clear why this oversight represents such a profound and disappointing failure.

Obviously, if the goal of a report is to explain how x happened, and it misses the major cause of x, that is in and of itself an important point to make. But my frustration goes much deeper than that, and it is rooted in the fact that this is not just a paper published in a leading journal, but a National Research Council report: these are the sorts of reports that can really change policy, and as I will make clear here, publishing a report with so glaring a blind spot is a tragically missed opportunity.

To say that NRC Reports can be truly important is not an understatement. Consider, for example, the NRC report on forensic evidence. Sure, it wasn’t the first report to highlight just how weak the evidence base for forensic evidence is, but its official sanction of that growing concern certainly seemed to mobilize a much wider effort to reform how forensic evidence is handled in the US.

NRC Reports can provide the catalyst for important change. This report had that potential—it is, after all, already being favorably cited by editorials in the New York Times—but because of its failure to think carefully about where prison growth comes from, its policy recommendations are of little to no use.

When it comes to regulating the scope of incarceration—and, to be clear, I think the report is right that we need to rein in and reduce our levels of incarceration, but it is adrift when it comes to explaining how—here are its primary policy suggestions:

1. Reduce sentence length. I’ve already argued that this is wrong, but so too does the report itself, which admits that prison growth since 2000 has been driven by admissions, not time served. Plus, even if there were a lot of people still in prison serving long sentences—which there aren’t—changing sentence length today wouldn’t do anything for them. 

2. Reduce the scope of mandatory minimums. This one could matter if DAs are driving up admission rates by increasingly invoking mandatory minimum laws. And this could be happening, even though the probability of being admitted to prison once changes are filed has been constant (since the composition of offenses is changing). But, again, the report itself admits that these laws are frequently circumvented.

3. Roll back the war on drugs. I’m not going to address this one again. 

 It does admit there could be some other approaches to take. Here's what it says

 Although the above measures do not exhaust the options for sentencing reform, we view reduced use of long sentences, review of mandatory minimum sentences, and a revised approach to drug law enforcement as three key main ways in which incarceration could be significantly reduced. Recent reform efforts also have addressed other phases of correctional supervision, notably community corrections. As was mentioned above, a shift in sentencing policy away from reliance on incarceration would necessarily require closer examination of the effectiveness of alternatives to incarceration, including the effectiveness of parole and probation supervision. Similarly, any well-conceived plan for reducing prison populations should consider the effectiveness of short-term and longer-term assistance to parolees.

That’s it. Other than the misplaced focus on drugs, no discussion of reforms that target the actors who actually send people to prison. The proposal are quite orthodox, but ultimately inapt.

What if the NRC had taken advantage of this unique opportunity to make some daring, provocative, and useful recommendations. Consider the following:

1. Implement a Uniform Prosecutors Reports. We have detailed statistics on the police via the Uniform Crime Reports, and detailed data on prison populations via the National Corrections Reporting Program and the National Prisoner Statistics. But for prosecutors? Nothing. The National Prosecutors Survey provides national-level estimates of administrative details, but nothing about how DAs or ADAs do their jobs. There are a few other datasets that provide glimpses of prosecutorial behavior, but all suffer from severe limitations that minimize their use for understanding what prosecutors do. Obviously, prosecutors are happy with this arrangement: they get to do whatever they want to do with almost no oversight whatsoever. They are the giant black box of the criminal justice system, and by relying on inadequate research, the NRC report gives them a free pass. I will return to the idea of the UPR in a future post: it may be an impossible goal, but it is one that demands our consideration nonetheless.

2. Confront the fiscal moral hazard problem, Part 1. If DAs are driving up prison growth because they aren’t paying for it, then make them pay for it, or at least make them take into account the costs they are imposing. This is a topic that has come up before, but traditionally got little attention. Until October 1, 2011, when California adopted this on a massive scale under the name Realignment, as part of its effort to mitigate the unconstitutional levels of overcrowding in its state prison system. I described the basics of Realignment here, and I’ll come back to it again. But the NRC Report does not mention Realignment once, despite coming out three years after the process began. 

3. Confront the fiscal moral hazard problem, Part 2. The NRC report encourages the use of sentencing guidelines. To the extent those govern the in/out margin, they could help, but if all they focus on is time served, then they do not target the key area of growth (whatever other benefits they may have). But how about enforceable prosecutorial guidelines? This is not a pipe dream: New Jersey has these to regulate plea bargaining for drug cases. It’s a narrow application, but for a major source of crime in a high-incarceration state, and the guidelines appear to be effective.* There is no reason, necessarily, that they couldn’t be scaled up to more offenses.

These are just a few ideas, but what they should make clear is that the NRC squandered a rare opportunity to think creatively about how to regulate prison growth. Its own solutions don’t really target what the report itself says is the source of growth today, and it fails to suggest anything that actually takes aim at the incentives of the most important actors in the system—because the report itself is  blind to their importance.


* To be clear, the guidelines were mandated by the state Supreme Court out of a equal-protection concern about racial imbalances in plea outcomes. And New Jersey is one of the few states where the state AG has direct oversight of the county DAs. But I can’t see any theoretical reason why these sorts of guidelines couldn’t be implemented in other states. Thus my disappointment in the NRC report’s lack of innovation in its policy recommendations.

Posted by John Pfaff on June 2, 2014 at 02:10 PM | Permalink | Comments (0)

Law and Society, Minneapolis 2014

Hi, Everyone, and thank you, Dan, for the gracious invitation for a recidivist visit.

I'm just back from the Law and Society Association's Annual Meeting in Minneapolis, where I had the great pleasure to co-chair CRN 27, Punishment and Social Control. Terrific meeting. The panels were great, people's work was of truly high quality, and commentary was incisive, constructive, and elegant. We also had some great social times. 

Several interesting threads of thought came up at the meeting. First, there is a growing interest in misdemeanors, street policing, and quality-of-life offenses, both through quantitative and qualitative eyes. People are increasingly seeing cops, prosecutors, and jail officials acting as "valves" distinguishing these folks from the "real" criminals. I read this trend as part of the general contraction of the recession-era punishment mechanism that John Pfaff discussed here last month - but with the introduction of more mechanisms to punish only as many people as we can afford comes a retrenchment of the system's idea of who the "real" criminals are. 

This became really poignant to me on the flight back to San Francisco, when I was reading this piece of delightful trash from Bill James. James basically provides an overview of violent tabloid crime in the United States, and even when he describes truly heinous crimes and the trials that followed them, I was astonished at how much less punitive the state seems to have been toward these very "real" criminals at the time.

Second, there's a very interesting discussion among sex offense scholars that seems to transcend the victim/offender dichotomy. There was a panel that included Santhi Leon's Sex Fiends, Perverts, and Pedophiles; Rose Corrigan's Up Against a Wall; and Ross Cheit's The Witch-hunt Narrative. This third book is the most disquieting one for me, because Cheit marshals a lot of archival research to show that the pendulum in penalizing sex offenders for child abuse may have swung way too far in the last three decades. To those of us, like me, who grew on false memory syndrome, who heard countless social psychologists present lab tests proving that children were untrustworthy witnesses and their memories malleable, and who have grave concerns about overcriminalization in general, this comes as quite a shock, and I'm very anxious to read Ross's book and make up my own mind.

And third, our CRN also sponsored panels on very extreme forms of punishment, including detention in Guantanamo, various forms of solitary confinement, and undocumented immigrant detention around the world. This provoked a great discussion as to what counts as "extreme" punishment.

It was an overall excellent meeting, and I'm all fired up to wrap up the projects I'm working on and send them out. I'll be spending some time here this month discussing them: a coauthored piece with Gwendolyn Leachman of Wisconsin examining how the polyamorous marriage activism nascent movement can learn from the success of the same-sex marriage struggle; an examination of same-sex marriage in prison in the aftermath of Windsor and Perry; and a study of Durkheim-like deviance-turned-into-law in the establishment of the Global Rules of the Marathon Swimming Federation. I'm also planning on telling you all a bit more about my upcoming book, Cheap on Crime: Recession-Era Politics and the Transformation of American Punishment (forthcoming Jan 2015, UC Press). Let the fun begin.

Posted by Hadar Aviram on June 2, 2014 at 12:23 PM | Permalink | Comments (0)

A Little Help Here, Supreme Court?

I want to first thank Dan and the PrawfsBlawg folks for letting me holdover through June.  May went by much too quickly (and without any patent law excitement from the Supreme Court).  Hopefully the month of June will be a little more laidback, albeit filled with good stuff to blog about.  

Perhaps as a good omen, or at least a positive start to the month, the Supreme Court issued two patent opinions this morning:  Limelight Networks v. Akamai Technologies and Nautilus v. Biosig Instruments.

I have some thoughts on Limelight (which came out as I had hoped), but I want to talk about the Nautilus case and a possible pattern that concerns me, especially given the Supreme Court's ever-growing interest in taking patent law cases.  Concisely, but cynically, I think the best way to describe a number of the recent Supreme Court patent cases is "Thanks for nothing."

35 USC section 112 imposes what is termed the "definiteness" requirement.  Basically a patent must conclude with one or more claims that "particularly point[] out and distinctly claim[] the subject matter" of the invention at issue.  The purpose of the provision is that, based on these claims, the world should be put on notice of what is part of the inventor's exclusive territory and what is not.  Of course, it's difficult to define the boundaries of an invention with words.  The Court acknowledges this tension between the "inherent limitations of language" and the need for a meaningful level of precision.

To put some flesh on the definiteness requirement, the Federal Circuit had defined it to mean that the claim language was "amenable to construction" and was not "insolubly ambiguous."  In the Nautilus case, the Supreme Court reversed the Federal Circuit, stating that a claim is indefinite if it fails to inform, with reasonable certainty, a person skilled in the relevant technological area about the scope of the invention.  The case was remanded to the Federal Circuit to review under the altered test for indefiniteness.

I have no issue with the Supreme Court's determination that the Federal Circuit's test was incorrect.  The problem, as I see it, is that the Supreme Court's test is basically a reiteration of the word "indefinite."  There is no flesh on the bones, no actual test or standard or rule for lower courts to latch on to.  How do you know if something is indefinite?  It isn't definite.  I'm pretty certain my 3rd grade teacher wouldn't have allowed me to get away with that explanation -- let alone the Supreme Court.  If the Federal Circuit is getting it wrong (and, according to the Supreme Court, causing confusion in the lower courts), then wouldn't the correct response be to provide an alternative?

And it isn't just limited to the Nautilus case.  For example, proper subject matter for patenting, particularly in the software and computer-related inventions area, has been a hot topic for a number of years A few years ago, the Supreme Court was set to provide an answer in Bilski v. Kappos.  The Federal Circuit had implemented the "machine or transformation" test for software-type inventions -- the invention either had to be implemented with a particular machine or transform an article from one thing or state to another.  One reason the Federal Circuit had implemented this test is that lower courts and the Patent Office seemed to be all over the board on the patent eligibility for these types of invention, so a stricter, bright-line rule made sense.  However, the Supreme Court said the Federal Circuit's test was not correct (although it was one way to determine whether an invention of this type was patent eligible).  Rather than giving an alternative test, standard, or rule, the Supreme Court directed the courts and the Patent Office to look at its 30-year old precedent and figure it out.  This is the same precedent that had been jumbled to the point that the Federal Circuit felt compelled to create the machine-or-transformation test.

There are other examples that I'm drawing a blank on right now -- it's Monday morning after all.  

I am not a Federal Circuit apologist.  The Supreme Court should occasionally step in and fix what the Federal Circuit is getting wrong.  But in order to "fix" anything, the Supreme Court has to provide a little guidance - not just repeat the test or point to jumbled precedent.  In doing that, it is not improving the situation, but rather muddling it further.  Is it too much to ask for the Court to provide direction for a new test, standard, or rule when it decides the old one is wrong?

On that note, the Supreme Court is set to issue another opinion on the patent eligibility of software and computer-related inventions this month in Alice Corp. v. CLS Bank.  Let's hope, after the Supreme Court tells the Federal Circuit it got thing wrong...which, with seven opinions issuing from a ten judge panel, seems likely - let's hope that the Supreme Court gives us a little help.

Posted by Kristen Osenga on June 2, 2014 at 11:54 AM | Permalink | Comments (0)

Rotations and Sundry

Greetings and Happy June!

This month I'm delighted to welcome back Dean Dan Rodriguez from NW, Hadar Aviram (Hastings), and Chad Oldfather from Marquette. I'm also excited to introduce Naomi Goodno from Pepperdine, who's with us for the first time. Our May guest Kristen Osenga from Richmond will stay on for another month too. Many thanks to you all from May and earlier  for joining us (again).  Belated thanks also are due to Richard Re, who's joining the UCLA faculty and is going to be one of our designated Court-watchers for a while. Next, although he himself abjures all moral relevance of desert, John Pfaff from Fordham warrants our gratitude for his important (and intermittent) series on the failings of the conventional narrative of prison growth. My hope is that John's continued platform here will shift the national conversation on criminal justice matters more productively.  Finally, as SCOTUS winds down its term, I imagine Jack Chin will chime in with his excellent series on the legal academy and its influence on the Roberts Court.

It's an auspicious time to be part of the conversation. Prawfs celebrated its 9th anniversary in April and now had (according to Sitemeter) the highest traffic in terms of page views that we've ever had: over 279,000 in May. We're slated to have another great book club later this month thanks to Matt Bodie's efforts.  And I'm happy to report that West Academic has invested some confidence in this site with sponsorship efforts that I hope will continue and strengthen over time.  Please check out their coursebook catalog through the button ad and consider getting in touch with them (Pam Siege Chandler) if you're thinking of working on a casebook!

That's all for now.

Oops, one last reminder. Carissa Hessick (a regular contributor to Prawfs) and I are going to be locking down registration for the CrimFest 14 Conference at Rutgers this week, so if you've not already registered please do so today or tomorrow. You can find the relevant information at this link. Carissa recently had a baby, so what better way to celebrate the new addition to the Hessick family than saying: Hey, I'll come hang out with that baby's mama in Newark in July!






Posted by Administrators on June 2, 2014 at 11:40 AM in Blogging | Permalink | Comments (0)

Bad day for the Federal Circuit

Today was a pretty bad day for the Federal Circuit, as it was unanimously reversed twice in decisions from the April sitting (meaning it took less than two months for the Court to do the reversing). While we should not expect SCOTUS to simply rubber stamp the Federal Circuit because of that court's patent expertise, the Court has now unanimously reversed the Federal Circuit three times this term alone. Anyway, this seems a good excuse to highlight the work of Paul Gugliuzza of Boston University, who combines expertise in IP and Fed Courts and has written extensively on the Federal Circuit and its expansion (for good and ill) of its power.

Posted by Howard Wasserman on June 2, 2014 at 11:23 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

The Flawed NRC Report: The Mysterious Case of the Missing Prosecutor, Part 2

(This is Part 6 in my criticism of the recent National Research Council report on incarceration. Here are Part 1 (drug war), Part 2 and Part 3 (longer sentences), and Part 4 and Part 5 (admissions and prosecutors).) 

As I showed in a previous post, to the extent that the NRC report focuses on admissions as driving prison growth, it focuses on a measure (“admissions per arrest”) that is too broad to be useful: it is not so much “admissions per arrest” that are driving growth as it is “filings per admission.” Prison growth, at least since the 1990s, is specifically a story of increased prosecutorial punitiveness.

In other words, prisons are run by the state, but prisoners come from the county. To understand prison growth, you must understand what is happening across counties. Yet the NRC report, like almost all academic work, focuses almost exclusively on state- (or, even more often, and even less usefully, national-) level factors.

Most academic work, but not all. Consider the following results:

  1. New York State’s prison population has shrunk steadily for more than a decade; it is the longest sustained decarceration in the country. And as a recent Brennan Center report indicates, it isn’t because the state as a whole has become less punitive. New York State’s decarceration is driven entirely by policy choices in the five counties that make up New York City. Incarceration rates have risen in the rest of the state’s counties, but shrunk by so much in New York City that the overall prison population has fallen.
  2. A recent paper by David Ball demonstrates that incarceration rates in California vary widely across counties, and that this variation does not appear to be explained all that much by variations in crime rates. Some counties are punitive, other counties are not, and punitiveness seems to driven by social, demographic, economic, and other non-criminal factors. County factors explain California far more than state factors.
  3. An unpublished paper by several criminologists using data from the National Judicial Reporting Program suggests (consistent with the Brennan Center report) that prison populations are being pushed up by actions in less-urban counties. Again, it is county-level factors that are driving growth.

It is easy, then, to see the problems that can arise when one fails to model prison growth on the county level. Some examples:

  1. State-level analyses miss what could be a major cause of prison growth, namely the moral hazard problem that arises when county officials (i.e., prosecutors) have unregulated access to a state resource (i.e., prisons). Prison is basically a “free” resource for the DA, since he gets the political returns on locking up felons but externalizes the cost to the state prison system. This effect is made all the worse by the fact that jail and probation are paid for by the county: misdemeanors are more expensive than felonies!* State-level models can’t see this clear moral hazard problem at all.
  2. State-level models may look at the wrong actor. One key variable in many prison growth models, for example, is the conservativeness of the state legislator and governor. And these actors do set some of the parameters: not just sentencing ranges and parole policies, but (perhaps more importantly, but less interesting to the general public) intergovernmental transfers.** But if counties drive prison growth, then what matters more, perhaps, are the political affiliations of mayors and county executives, particularly in high-incarceration jurisdictions.
  3. State-level models may smooth over important sources of variation. The percent of the population that is black in New York (15.2%) is roughly the same as that in Arkansas (15.8%), but as the excerpt below from this map shows (from the Census, at census-tract level), the distribution of black residents differs significantly: in Arkansas they are fairly uniformly spread across the south-eastern half of the state, while in New York they are more likely to be densely packed into a few major urban centers. These differences could have major effects on how crime is viewed, regulated, punished, etc., etc., but again, state-level models are blind to these sorts of effects.

So what we measure as differences between states as states could instead reflect, at least to some (significant?) degree just differences in county-composition. No counties in New York State, for example, make the Census’s list of persistent poverty counties, while nine of West Virginia’s fifty-five counties do. So to what extent does the fact that New York State’s prison population shrank by 25% since 2000 while West Virginia’s rose by almost 80% simply reflect the fact that counties in the two states differ? After all, New York State’s decarceration occurred despite the increasing punitiveness of its poorer, less urban—i.e., more-West Virginian—counties.

Sadly, the NRC report pays almost no attention to these sorts of considerations. Concerning the risk of moral hazard, the NRC says only this:

Incentives for supporting certain kinds of crime-related initiatives also tend to be misaligned across different levels of government. For example, it is relatively easy for local government officials to advocate increased sentence lengths and higher incarceration rates that state government officials are typically responsible for funding (including the building and running of state penitentiaries).

That’s it. Two sentences, in a twenty-five page chapter titled “The Underlying Causes of Rising Incarceration: Crime, Politics, and Social Change,” a chapter that nonetheless manages to spend thirteen pages to talking about national-level political trends since the 1940s. These trends could matter—national-level rhetoric surely influences county-level elections and policies—but the report glosses over fundamentally important county-level issues, and in doing so misses a likely major explanations for prison growth, perhaps the most important ones. And no other county issue is discussed at all.

Even if you remain unconvinced that the county is the primary source of prison growth, I hope by now it is clear that the importance of the county is at least something that demands attention, and that the NRC report's failure to do so represents a major lost opportunity to highlight the importance of the prosecutor (which will be the topic of my very next post).



* One question I often get when making this claim is “why do DAs care about the county budget?” Given that DAs are directly elected, it is a fair question to ask, and I’ll return to it in a future post.

** Following the money is always a good idea, and the NRC report’s treatment of the issue—a few half-hearted and unsubstantiated sentences on the so-called “prison industrial complex” and a reference to competition over prison siting—is far too thin. I’ll turn to this issue in a future post as well.

Posted by John Pfaff on June 2, 2014 at 11:04 AM | Permalink | Comments (0)