Dorf on Law

Schnitzel and Stuff

noreply@blogger.com (Neil H. Buchanan) — Fri, 24 May 2013 12:00:00 +0000

-- Posted by Neil H. Buchanan

In a post last week, I mentioned in passing that I am currently in Austria. In fact, I am the PwC Visiting Professor of Law at Wirtschafts Universitat Wien (the University of Business and Economics in Vienna). I am here for one month, teaching a course and delivering various lectures and seminars. Yesterday evening was the big event, my featured lecture with a panel of discussants, in which I explained the U.S. debt ceiling and the dangers for the world economy and financial system that would result from putting the President in a trilemma. (The gift that keeps on giving.)

My hosts at WU are fantastic, and the students (many Austrians, of course, as well as many from around Europe and the world) are top notch -- masters and doctoral students, some pursuing pure tax degrees, while others are involved in interdisciplinary programs.

Because this is the last post that I am scheduled to write during my stay here, and because I have been somewhat under the weather for the past two weeks, I thought I would stop writing about the difference between "targeting applicants because of the content of their politics" and "targeting applicants because of their political activities" (as much fun as that has been) and engage in a bit of personal travelogue, mixed with some Freshman-level social science observations.

This is actually my second visit to WU. I was here for a week in Fall 2009 (see this DoL post written back then), which meant that I already had a basic sense of the place before I arrived last month. Staying for a month has allowed me to get to know the city on a deeper basis than is possible in a week, but of course, I still know very little. Why should that stop me from sharing a few observations?

Everyone should visit Vienna, if they ever have the chance. It is stunningly beautiful, and the working government buildings are mixed in with the castles, cathedrals, and museums of its past. Having once been the center of an empire, there is a lot of grandeur to see here, and the current Austrians know that this is an enormous asset. Also, English has been taught in the schools since the early 1970's, which means that anyone under 50 is likely to be impressively fluent (as are many over 50). Restaurants have menus in German and English (and sometimes French and Italian). There are a lot of tourists, but it rarely invokes the feelings that overcome me when I am on the Mall in Washington, DC, or in Times Square.

Vienna is also an amazingly romantic city. My fiancee was here with me for 8 days, and the city was even more magical than one could imagine. Part of the romance (even when one is not with a loved one), of course, derives from Vienna's musical past (and present). There are few people who are less cultured than I am, but seeing Mozart's "The Magic Flute" ("Die Zauberflöte") in a Vienna opera house (there are several) is a musical experience that cannot be matched.

That is about as much as I can write before turning on the economist/social scientist side of my brain. Vienna's population is about 1.7 million people (2.4 million in the metro area), with Austria's total population currently estimated at 8.4 million. GDP in 2011 was $417 billion, giving the country a per-capita GDP of about $42,400 (compared to the US's $49,900 that year, and about the same as Canada's and Australia's). Austria's debt-to-GDP ratio was about 74% last year, almost exactly the same as the US, and lower than Germany's (82%), Canada's (84%), and the UK's (89%).

In short, Austria is a small, prosperous country. Students here tell me that the recession that has ravaged Europe was pretty mild in Austria. On the other hand, the country just this week provisionally agreed to finally stop helping foreigners avoid taxes, so its prosperity has been at least partially based on banking secrecy. (The apparent bottom line: Austria will stop if Switzerland stops!)

Vienna covers 160 square miles. For comparison, Washington DC's land area is about 68 square miles. This means that Vienna's populations density is about 10,800 people per square mile, while DC's is about 9,300. This comparison is interesting, because the contrast between the two cities's transportation systems is ... shall we say ... stark.

Indeed, as I wrote after my last visit to Vienna (here and here), the most outstanding feature of the city from an economist's standpoint is its excellent infrastructure, especially its public transportation. There is a combined network of subways, commuter trains, and (most importantly) trolleys/trams that covers the city. They are clean (even though people are allowed to bring food on board), and they run smoothly. My column and DoL post from 2009 took special notice of the high-speed train that runs from the airport into the city, but even the (cheaper) standard subway line to the airport is fantastic. Little of the system is new, but it is very well maintained.

For those readers who have never been to Washington, DC, let us just say that almost everything I wrote about Vienna's transportation system in the paragraph above is laughably absent in DC. True, the 70's-era Metro is great (except during rush hours), and it runs from the city out to National Airport. But the long-delayed project to connect Dulles Airport to the city with a (non-bullet) train is not scheduled to be completed until 2018. We shall see. Moreover, our extremely minimalist subway system has nothing like Vienna's tram network connected to it. DC Metro buses are often like a Fellini movie, and they move slowly through the city's streets.

It is true that Vienna was severely damaged during WWII, which gave it an opportunity to rebuild itself in a more modern way. Most of its transportation network, however, was built in the 1920's. This is a smallish city, in a small country, with economic prosperity that is comfortable but hardly eye-popping, yet it manages to maintain an extensive, working transportation infrastructure. DC? Hmmm. Which capital city is the center of government of the world's only superpower?

A few small observations about the Austrian welfare state. When I became ill two weeks ago, my hosts at the university immediately told me that my temporary employment at the university qualifies me for zero-cost health care. Fortunately, I have not become so ill that I have had to see a doctor, but I was given my social services ID number and told to contact any doctor, if needed. Also, I asked my students how much they are paying in tuition. (I was explaining loan-forgiveness programs in US law schools.) They laughed and said, "17 euros per semester, total." That is less than $45 per year. The students confirmed my suspicion that no one takes out student loans here! During my time here, I have seen some homeless people, but not many. The poverty rate here is 6%, compared to 14% in the UK and 15% in the US. Taxes are 42.8% of GDP, sixth-highest in the world. All I can say is that they seem to get what they pay for.

Finally, the most important question: In the land of wiener schnitzel, how does a vegan eat in Vienna? The answer is, quite well. There are several purely vegan restaurants, at various price levels. At least one (Bio Bar von Antun) serves what I call "vegan schnitzel," which is fantastic. (Even before I became a vegan, I never liked wiener schnitzel.) There are also many veg-friendly places, and most Asian restaurants (ubiquitous here, combining Chinese, Japanese, and Korean cuisines, often as take-out fast food) include the word "vegetarische" on their signs. Not vegan, but very easy to eat well. (Too easy.)

How animal friendly is Vienna? People take dogs everywhere, including on the subways. (Interestingly, there is a muzzle law on trains and trams that almost everyone obeys.) But the best moment of the trip so far was when my fiancee and I were walking through a major shopping area (something like the Union Square area in SF, or Newbury Street in Boston), when a flatbed truck started blaring "Who Let the Dogs Out?" When we drew nearer, we discovered that we had walked into an animal rights parade, with people carrying "Go vegan" signs and wearing animal costumes. Vienna will never be home, but at that moment, it entered a different category of wonderful places.

Back to the U.S. next week. But I am not sad, in part because our honeymoon will take us to London, Edinburgh, Dublin, Berlin, and Stockholm. More social science field work.

Auf wiedersehen for now, y'all.

Subsituting Non-IRS for IRS Governance of Federal Activities

noreply@blogger.com (Neil H. Buchanan) — Thu, 23 May 2013 12:13:00 +0000

-- Posted by Neil H. Buchanan

My new Verdict column today takes a different angle on the non-scandal-scandal involving the IRS. I address the ubiquity of "tax expenditures," which are the "tax cuts" that Congress (on a VERY bipartisan basis) loves to pass, but which are the equivalent of direct spending by the federal government (mortgage interest deductions, research and development tax credits, child tax credits, excludibility of employer-provided health insurance, and on and on and on and on). Both methods of subsidizing favored activities have the same impact on deficits and debt, but Congress (especially, of course, Republicans in Congress) loves tax expenditures and hates government spending.

I have always been a bit of an outlier among tax scholars in my attitude about tax expenditures. The standard view, which has a great deal to be said for it, is that Congress should stop mislabeling spending as tax reductions, essentially because it is better for Congress not to be dishonest. A slightly more nuanced argument might be that forcing Republicans to run their favored versions of social engineering through direct expenditures would force them to admit that not all spending is bad, which could pry open some room in the debate for other, more progressive spending programs.

My mild apostasy on this topic is based essentially on the simple difference between substance and form. I frankly do not care what we call these programs. Even though in many cases calling them "spending programs" feels more accurate, I just don't care. If the issue is truth-in-labeling, then what really matters is that everyone is able to understand the label. And by this point, I hardly think it is a surprise to anyone who matters to learn that people opportunistically label things, and the buyer should definitely beware.

A more potent objection to using tax expenditures rather than direct spending is that Congress's procedures differ radically with regard to things that are labeled "spending" compare to things that are labeled "tax breaks." Spending generally needs to be re-authorized and re-appropriated every year, whereas tax provisions continue to live (generally without being reviewed for cost-effectiveness) in perpetuity. The latter claim need not be true, of course, as demonstrated by the many tax provisions that are enacted on a temporary basis (e.g., the payroll tax holiday). Even so, it is true that some tax expenditures suck up money without any meaningful, continuing oversight.

Of course, we could change all of that. We could sunset all tax provisions, annually or otherwise, if we thought that doing so was a good idea. For that matter, we could admit that many non-entitlement spending provisions are all but permanent already (military hardware being the most obvious example).

Still, even though it is simple enough to describe a change in the legislative process, Congress is (to put it mildly) rather slow to changes its procedures. (Filibuster reform, anyone?) Maybe it would be easier to force Congress to relabel tax expenditures affirmatively as spending than it would be to force it to bring tax breaks up for regular review. I remain skeptical, but I see the possibility.

In today's Verdict column, I link to a related column that I wrote for FindLaw's Writ (the defunct predecessor to Justia's Verdict) in March 2010. There, I made the argument that there is another serious real-world cost involved in relabeling tax expenditures as direct spending. As it stands, because Congress uses the Internal Revenue Code as its preferred legislative vehicle, the IRS ends up with enforcement responsibilities for a surprisingly large amount of the federal government's activities.

Moving enforcement responsibilities out of the IRS is, however, hardly a costless prospect. As I noted in my 2010 column, other federal agencies can (and often do) simply end up requesting that IRS employees be "tasked" to the non-IRS agency, making such a change merely an exercise in re-labeling. Moreover, there is a lot of expertise and institutional knowledge built into work environments. (Indeed, part of what we are learning about the current non-scandal-scandal is that the Exempt Organizations group was, through budget cuts and low morale, essentially stripped of its institutional memory, as its best and most experienced people moved on.)

Today's Verdict column expands on the costs of moving from IRS governance of various activities to non-IRS governance. I continue to believe that the best approach, taking account of all of the tradeoffs involved, would be simply to stop fighting about relabeling tax expenditures, but being careful to give the IRS the resources necessary to perform its outsized tasks.

As we now know, however, that is not going to happen. Even though nothing damning is coming out of all the furor over the non-scandal-scandal, the Republicans are simply having too much fun with this. Among other things, their insistent innumeracy is coming to the fore, as conspiracy theorists start to point to anecdotes as proof that the IRS is on the loose. The funniest version of that so far was a column by former Bush I speechwriter Peggy Noonan, who wrote about four conservatives who say that they have recently been audited by the IRS. Get it? Conservatives were audited by the IRS. That's the REAL scandal! Statistics maven Nate Silver had fun with that one on his blog, actually running through the numbers to show what any adult should already know: Four examples do not prove Noonan's point.

No matter. As my first post on this subject last week suggested (and as some examples in my Verdict column today demonstrate), the Republicans are getting too much political benefit from this to let it go. A party that could never quite get itself to denounce birther-ism is certainly not going to go quietly on "political targeting of conservatives" (even though the targeting was not of the conservatism but rather the politicking).

Which raises a further question. If, as I now believe, the politics have changed sufficiently to make it impossible to return to the status quo ante, with the IRS performing the governance duties that Congress dumped upon it -- and doing so rather well -- is there any prospect at all that the non-IRS agencies will be allowed to do their new jobs well? After all, even though we know that Republicans hate the IRS, do they not generally hate all government workers? And if so, is it not possible that we will soon see functions shifted out of the IRS, at great cost and dislocation, only to be dumped upon furloughed and salary-frozen employees in other federal agencies, with no gain to be had by pasting "not the IRS" on the agencies' appropriations requests?

This seems quite possible to me. Other than people who turn out to be directly important to wealthy people and Republican Congressmen (air-traffic controllers being the obvious recent example), being a government employee means being hated by movement conservatives. Moving functions around to non-IRS agencies might end up solving nothing, and costing money and causing serious mistakes in the process. At this point, however, we are left hoping that there is some daylight between Republicans' hatred of IRS employees and their hatred of every other civil servant.

We have always had an impoverished public sector in the U.S. (There is a reason that waiting rooms in government agencies are generally so dreary, after all.) That is now likely to become even worse. Nevertheless, there might be no choice now but to fight for the second best. The IRS has been given a series of nearly impossible tasks, and it has outperformed expectations over and over again. From here onward, however, it will probably not even be allowed to try. We had better hope that there are other federal agencies that will be given a fair chance to succeed.

How Much More of a Fiction is Due Process Notice for a Person with a Mental Impairment Than For a Person Without One?

noreply@blogger.com (Michael C. Dorf) — Wed, 22 May 2013 11:37:00 +0000

By Mike Dorf

My new Verdict column discusses Monday's SCOTUS decision in Metrish v. Lancaster. Writing for a unanimous Court, Justice Ginsburg's opinion says that regardless of whether Lancaster's due process rights were violated when he was not permitted to offer a diminished capacity defense that was on the books at the time of the crime charged, the Michigan state court decision denying him that opportunity was not an "unreasonable" interpretation of Supreme Court case law; thus, under the Antiterrorism and Effective Death Penalty Act (AEDPA), the Court said that Lancaster was not entitled to habeas relief. My column locates Lancaster and AEDPA in the decades-long retreat from expansive notions of habeas as a collateral remedy expounded during the Warren Court era.

Here I want to ask the question that the Court finds unnecessary to reach in light of AEDPA's deferential standard of review of state court applications of federal law: Were Lancaster's due process rights actually violated? The Court's opinion suggests (correctly in my view) that this is an open question. Here is how my column summarizes the key point:

According to the Supreme Court, Lancaster’s case fell somewhere in between two of the Court’s own prior precedents. In the 1964 case of Bouie v. City of Columbia, the Court held that due process forbade a state from retroactively applying a construction of a criminal trespass statute forbidding entering private property to people who refused to leave such property. In the 2001 case of Rogers v. Tennessee, the Court permitted the retroactive refusal of a state court to apply the common law rule requiring that the victim of an attack must die within a year and a day of the attack, in order for the perpetrator to be charged with murder. According to the Court in Lancaster, taking away the diminished capacity defense after the fact is more like a due process violation than the non-violation found in Rogers, but less like a due process violation than the violation found in Bouie.

The Lancaster Court did not say which side of the line the case fell, because it found that the Michigan courts' decision was not unreasonable under AEDPA. But considered de novo, where would it fall?

My initial inclination is to say that Lancaster is more like Rogers than like Bouie, and that therefore Lancaster's due process rights were not violated when the Michigan courts didn't permit him to make his diminished capacity defense. That's because the central issue here is notice. It violated the due process rights of the demonstrators in Bouie to be subject to a criminal trespass statute for staying on private property without permission when the statute only said in so many words that it forbade entering private property without permission. Thus, they could plausibly claim that they didn't have notice that what they were doing was criminal. By contrast, in Rogers, the defendant could not plausibly have claimed that he was relying on the year-and-a-day rule when he attacked his victim, because the timing of the victim's death was fortuitous. (Perhaps a different case would be presented by a killer who used a poison known to take over a year to kill its victim, although it's hard to generate any sympathy for such a killer.) Seen in this way, Lancaster also does not appear to have been prejudiced by lack of notice. The whole point of the diminished capacity defense he wanted to make is that he lacked the capacity to form the intent to kill. But if that's so, then notice wouldn't have done him any good.

I am nonetheless uncertain about whether Lancaster has a good claim because the Court in Rogers did not rely on the distinction I have just drawn. Instead, it relied chiefly on the fact that the Tennessee Supreme Court in Rogers overturned a common-law doctrine that had never had a firm basis in the case law, so that Rogers could not have been unfairly surprised by the Court's rejection of it. By that standard, the question whether Lancaster is more like Bouie or Rogers would involve parsing prior Michigan law to see how firmly established the diminished capacity defense was at the time of Lancaster's crime, and whether it was rooted in statutory interpretation or common law.

In addition, notice is always something of a fiction, but that does not typically bother the courts. It's true that the notice question feels still more fictional in Lancaster and Rogers than in Bouie, but one could make an argument for relying on formal notions of notice across the board.

Bottom Line: I think it is an open question whether Lancaster had a good due process claim. That means the Court's decision is probably right as an interpretation of AEDPA. My column should thus be read not as a critique of the ruling in Lancaster itself but as a lament that Congress and the Court have so narrowed habeas.

The Slim Prospects for Executive or Judicial Action Interpreting "Exclusively" to Mean "Exclusively"

noreply@blogger.com (Michael C. Dorf) — Tue, 21 May 2013 10:00:00 +0000

By Mike Dorf

Even as the IRS "scandal" continues to cause hyper-ventilation on the right, various progressives have been beating a different drum. Tea Party and similar groups, they say, never should have been permitted tax exemptions in the first place because the relevant statutory language (Section 501(c)(4) of the Internal Revenue Code) says that an organization is entitled to such status only if it "exclusively" promotes the social welfare, but the IRS was merely requiring that such organizations "primarily" promote the social welfare, permitting them to engage in some political activity. According to these critics from the left, the real problem is the longstanding regulation and implementing tax opinions (described in an IRS tax manual) that have been too permissive in granting tax-exempt status.

Are these critics correct? Well, no and yes. On the face of it, it seems quite odd to interpret "exclusively" to mean "primarily," but in practice that strikes me as just about right. Suppose that a group of kazoo players in Kalamazoo, MI want tax-exempt status for their new organization, the Kalamazoo Kazoos. (That was the name of a now-defunct minor league baseball team, but I digress.) The group gets together weekly to practice kazoo and gives occasional concerts. Should this group qualify for 501(c)(4) status? Sure. Does the organization "exclusively" promote the social welfare? Not literally. Perhaps the Kazoos spend some portion of their meetings gossiping or networking or eating or engaging in other activities that are not exactly social welfare promoting. But no organization engages exclusively in promotion of social welfare in the sense that every second of every event is directed at the social good. And yet we can assume that Congress meant 501(c)(4) to apply to real organizations. Accordingly, it makes sense for the IRS to interpret "exclusively" to mean "primarily." Even textualists (like Justice Scalia) are not literalists, and so in the context of a statutory provision meant to have actual application, "exclusively" cannot be interpreted literally.

Nonetheless, one might think that the word "exclusively" in the statutory language should signal a stricter attitude than the IRS has adopted. Perhaps the provision should be construed to mean something like this: the organization must exist exclusively for purposes that promote the social welfare, with non-social-welfare-promoting activities and purposes being only incidental to the main aims of the organization. The most thoughtful criticisms of the IRS from the left object that in practice the definition has been looser still. I haven't followed the details of enough cases sufficiently closely to know whether that's broadly true, but on the face of things, that does strike me as at least a plausible criticism, especially with respect to the new politically active groups seeking 501(c)(4) status.

Suppose one were persuaded by this critique. What could be done to change the law? Well, the Obama Administration could, through executive action alone, tighten the operative definition. It's true that Congress has effectively acquiesced in the longstanding IRS working definition of "exclusively," but the leading admin law cases permit an agency or administration to change its understanding of unclear statutory language so long as that language is in fact unclear and the new understanding is reasonable. Here, a tightened interpretation would likely satisfy those criteria.

Does that mean the Obama Administration would do it? Fat chance. Had the Administration come out swinging--arguing that although the Cincinnati office of the IRS used improper criteria, the real problem was a too-permissive approach to 501(c)(4), not a too-restrictive approach--it would now be well positioned to make the case to the public that what we need is to protect hard-working Americans from the giveaways that the IRS has for too long been allowing. But, having accepted the Republican narrative that low-level officials acted "scandalously", and having fired the acting head of the IRS, the President would likely take too much political heat for such a seeming about-face. Accordingly, in the short term executive action appears quite unlikely as a means of changing the IRS approach.

What about lawsuits? As a general matter, SCOTUS case law disallows taxpayer standing. Thus, no individual taxpayer would be permitted to go into court to complain that, by allowing 501(c)(4) status for, say, American Crossroads, the IRS reduces its take from such entities, thereby requiring it to obtain more money from the likes of individual taxpayers. Except for a very narrow exception for a narrow category of Establishment Clause challenges, there is no such taxpayer standing.

To be sure, not every individual lawsuit must rely on taxpayer standing. Consider the case of Dr. David Gill, who is one of the plaintiffs in a lawsuit filed in February against the IRS alleging that by employing an overly lax standard for 501(c)(4) status, the government effectively subsidized attacks on his (ultimately unsuccessful) campaign for Congress by an organization that received substantial anonymous donations from an insurance company and the pharmaceutical industry. Gill is not asserting standing as a taxpayer. Rather, he is alleging a conventional injury: He was at a competitive disadvantage in the race because, he says, the IRS under-enforced the law.

The IRS has nonetheless moved to dismiss the case for lack of standing, invoking various longstanding precedents that limit the ability of private parties to insist that the government enforce the law against some third party. Allen v. Wright is a typical and seemingly highly relevant case. There, plaintiffs--parents of minority schoolchildren--argued that by failing to police tax-exempt status for segregated private schools, the IRS effectively subsidized such private schools, and thereby undermined the ability of the plaintiffs to send their children to desegregated public schools. The SCOTUS rejected standing on the ground that the causal connection between the government under-enforcement of the law and the plaintiffs' injury was too tenuous.

In their response to the IRS motion to dismiss, Gill and his fellow plaintiffs gamely attempt to distinguish Allen and similar cases by saying that the new case is simply a straightforward admin law challenge to a reg that violates a statute. I hope they succeed, because I don't like the Allen rule and I share the sense that the IRS has indeed been too lax in its implementation of 501(c)(4). But I wouldn't bet on it. Post-Allen cases emphasize the point that private parties (whether suing as taxpayers or to vindicate some more particularized interest) generally should not be heard to complain that the government is under-enforcing the law against some other private party--even when there is a pretty obvious connection between the interests of the plaintiff and the conduct of that other private party. These cases are related to conservatives' dislike of lawsuits generally and their fondness for the "unitary executive" in particular. (When courts, acting at the direction of private parties, tell agencies to enforce the law, they undermine the President's ability to direct the executive branch.)

Hence, if this were just a straight-out admin case, I would expect the conservative DC Circuit or, on cert, the conservative majority on the SCOTUS, to be skeptical of the claim for standing. Throw in the now-ideological stakes derived from the current "scandal" and the odds against the courts ultimately upholding standing by a party challenging IRS under-enforcement of 501(c)(4)'s limits look quite long.

Two Broader Lessons of the IRS/Tea Party "Scandal"

noreply@blogger.com (Michael C. Dorf) — Mon, 20 May 2013 06:00:00 +0000

By Mike Dorf

Today I'll discuss two ways in which the IRS "scandal" reflects broader features of contemporary American politics. I'll follow up tomorrow with a post that asks the question whether there is any realistic prospect of changing the policy by which the IRS interprets the exemption from taxation for 501(c)(4) organizations that are "operated exclusively for the promotion of social welfare" to mean organizations that are operated "primarily" for the promotion of the social welfare. (Hint: The answer will be no.)

(1) Separate Factoverses and False Equivalence

Even judged only by the comments on one of Professor Buchanan's posts on the IRS/Tea Party "scandal" last week, I am reminded that Americans believe they are entitled not only to their own opinions but to their own facts. Those informed by right-wing media insist that where there's smoke there's fire, that Tea Party activists were harassed by the IRS and its jack-booted thugs, that the motives of the harassers were nakedly partisan, and that responsibility in the sense of knowledge and perhaps even direction must have come from the top levels of the Obama Administration, probably the President himself. Those informed by progressive media doubt that there was necessarily even any low-level wrongdoing, with the focus on names like "Tea Party" and "Patriots" simply reflecting the flood of applications, that left-of-center groups faced similar scrutiny, that there is no evidence whatsoever of Presidential complicity, and that the real scandal was the failure of the IRS to subject the truly powerful groups that abused 501(c)(4) status, like Karl Rove's American Crossroads, to scrutiny.

None of us is without priors, of course, and long-time readers of this blog will realize that I come closer to the second view, but I'd at least like to think that the reason has something to do with actual facts. I'm perfectly happy to say that I've seen nothing sufficiently definitive to rule out high-level Administration involvement or to rule out the possibility that one or more of the Cincinnati-based IRS staff did act out of an improper partisan motive. Sometimes where there's smoke there's fire, but sometimes where there's smoke there are only mirrors. Thus, I will continue to use the term "scandal" in quotation marks, not to mock the notion that the IRS scrutiny of Tea Party groups is scandalous, but simply to withhold judgment about what, to this point, looks mostly like a case of ineffective management of overworked staff who were in over their heads.

Even that stance probably concedes too much to the right-wing view, however. Of course people of all political stripes can and sometimes do exaggerate or outright fabricate in order to support a position they hold for ideological reasons. But we live in an era in which the propensities towards making stuff up are not evenly divided across the political spectrum. In 2004, Karl Rove was talking specifically about foreign policy when he told Ron Suskind that Suskind was part of the "reality-based community" as though that were a problem, but the statement has broader resonance. Whether it's the belief that the Affordable Care Act would create death panels, that man-made global warming is a hoax, that Barack Obama is a devout Muslim (and an atheist!), or that permitting same-sex couples to marry will contribute in any way to the deterioration of opposite-sex marriage, Americans who are active on the political right have demonstrated less interest in conforming their views to evidence about the world than do other Americans. Again, that is not to deny that all people exhibit confirmation bias to a substantial degree. It's simply to deny that we all do it to the same degree.

Nonetheless, when one combines the pre-existing tendency of the news media in America to conflate "even-handedness" with objectivity, with the last decade's decimation of budgets for actual investigative journalism, it is inevitable that reports on the IRS/Tea Party "scandal" will feature roughly equal doses of conservatives claiming that they are the victims of a witch hunt and liberals saying that if so, their team wasn't holding the pitchforks.

(2) Preemptive Counterproductive Appeasement

Meanwhile, the President's response and the inevitable counter-response also fit a familiar pattern. From the moment that the IRS/Tea Party story broke, the President has expressed outrage and has already fired the acting head of the IRS. He thus aims to show the American people that he shares the basic world-view of the people on the right who are outraged, but wants to chart a somewhat more moderate course. Hmm, where have we seen this before?

Oh, I don't know. How about in every single budget negotiation with Republicans in Congress? For reminders, I'd refer readers to Tom Tomorrow's brilliant "Middleman" cartoons, like this one on the 2011 debt ceiling negotiations, or this one on the sequester that arose out of them. Like Charlie Brown thinking that surely this time Lucy won't pull away the football, President Obama believes that if only he shows himself to be a reasonable compromiser willing to meet his opponents substantially more than halfway, then they will respond in good faith.

The Downside of Outsourcing Poltiical Oversight to Comedians

noreply@blogger.com (Neil H. Buchanan) — Fri, 17 May 2013 12:55:00 +0000

-- Posted by Neil H. Buchanan

At apparently the same time that I was writing my Dorf on Law post yesterday, the editorial board of The New York Times was reaching essentially the same conclusions. Although they did not focus as much attention on the IRS non-scandal-scandal, they made the important point that this "week of scandals" that supposedly has changed everything is, in fact, a bunch of small-bore matters that have somehow been turned into a whole that is much bigger than its parts. Even taking seriously the notion of "totality of the circumstances," there is still nothing but a disconnected handful of matters that Republicans are now screaming about.

As if to show that content does not matter, the show trials are already set to begin. Today, the House Ways & Means oversight subcommittee will hold the first of what promises to be many, MANY hearings on the IRS's "targeting" of Tea Party groups. (As I said yesterday, the notion that they were targeted because they are Tea Party groups is not the same thing as being politically targeted in the sense of being the victims of a political hit job. But nuance left the building long ago, and it's not coming back.) The chair of the subcommittee set the perfectly absurdist tone, saying: "I just refuse to believe that lower-level I.R.S. personnel were making these kinds of decisions." That pretty much sums up the modern Republican Party: Decide in advance what is true, and refuse to believe anything else. Why hold hearings, then? It is certainly not about fact-finding.

As I pointed out yesterday, however, the hyperventilating about the IRS's mistakes is hardly limited to the right wing. Democrats are "in no mood to defend the nation’s tax collector," as a news article in the Times put it this morning. Even The Progressive, the monthly magazine published in Madison, Wisconsin that gamely carries the torch of LaFollette-style progressivism, jumped on the bandwagon. In a podcast earlier this week, almost comically titled "Obama's Bad Nixon Impersonation," the magazine's editor declaimed against the "odious political witch hunt that was under way" at the IRS. I understand that The Progressive has good complaints about Obama's policies (many of which echo my own critiques), but this is just insane.

Part of the larger problem, I think, is that we have reached the point in our country's history where there are no longer reliable sources of informed independent oversight of our political system. Last year, I commented on the ridiculousness of the media's coverage of the Affordable Care Act case, which led to the CNN's almost inevitable mistaken announcement that the Act had been struck down. In that post and elsewhere, I have noted that (with rare exceptions) current news reporters simply lack the ability and knowledge to understand news stories, which leads them to default to meaningless he-said-she-said reporting. (I am not, of course, claiming to be the only person to have noticed this problem.)

Comedians have always been an important part of the public's check on political power. Even before there were court jesters, surely humor was an important source of power for those in the political opposition (formal or otherwise). Now, however, we have reached the point where the only real sources of political commentary from a left-of-center perspective with any widespread impact at all are Comedy Central's two late-night "fake news" shows, hosted by Jon Stewart and Stephen Colbert. This, we are beginning to see more and more clearly, is a bad state of affairs.

As I pointed out in my post yesterday, Stewart has responded to this week's meta-narrative about a scandal-plagued Obama Administration by completely buying into the premise. Again on Wednesday night's show (which, because I am currently in Austria, I did not see until about six hours ago online), Stewart talked about how the right wingers whom he has mocked now have some "legitimacy" in their complaints.

Only a week ago, Stewart himself was mocking the "Groundhog Day"-like Benghazi hearings that the Republicans were pushing, pointing out the Republicans' complicity in the actual underlying problems that led to the deadly attack last September. Nothing has changed this week at all regarding the Benghazi situation, except that the release of government emails makes it even more clear that there was no coverup or anything "bigger than Watergate" that the Republicans had been trumpeting. It would have been very much in character for Stewart to mock the Republicans' renewed outrage, as well as their attempts to paint a distorted broader picture of scandal. Instead, he simply bought into the false narrative.

Why? In one way, Stewart and his staff are extremely hard-working. They do a great job of finding clips of politicians who opportunistically adapt their outrage in chameleon-like fashion. Exposing hypocrisy is valuable, and "The Daily Show" does it better than anyone. In another way, however, Stewart is extremely lazy. When a story is in any way complicated, he tends to default to simplistic tropes that miss the real story. Any time he talks about budgets, for example, he cannot stop himself from emphasizing the word trillion, as if the shear size of that number is independently significant. Clearly, he and his staff bought into the same "political witch hunt" notion that The Progressive stumbled into. It is completely unsupported by facts, but what an easy story to tell!

This, moreover, is hardly the first time that we have seen this mistake play out at 11pm on Monday through Thursday nights. Several months ago, in a very public-spirited effort to improve the lives of disabled veterans, Stewart and his staff deplored the long delays that veterans have faced in their attempts to receive benefits to deal with their war-related injuries. This is, again, a very admirable effort on Stewart's part. However, he then claimed that the explanation could not possibly be that the relevant government offices are underfunded, because the budgets for those offices have recently gone up, not down. Of course, the caseloads have also been rising, and those offices have never been given the resources to modernize and deal with the problem in a systematic way. But that did not matter to Stewart. "They have more money" became "They have all the money they need."

And it is not as if Stewart is holding back from making bigger-picture pronouncements. His commentary on the backlog of veterans' claims included the broad statement that this failure threatened to support the conservative narrative that government can never do anything right. Of course, if the self-proclaimed defender of government's role in society is constantly willing to skip the facts and go for the simplistic nonsense, then maybe the problem is not that government -- when given a fair chance -- cannot do anything right. It could be that the supposed defenders of government punt away their chances to make pointed arguments. (Stewart has, by the way, returned to this narrative more than once since he first rolled it out in the story about veterans.)

Sometimes, the easy laugh is the point. For example, back in January, when Paul Krugman was making the case for the "big coin gambit," he engaged in a genuinely nasty back and forth with Stewart, who was mocking the idea of the one trillion dollar coins. My take on this was that public confidence in the monetary system was too fragile to risk making everyone wonder how we can simply mint cartoonish coins to solve the problem. In that context, Stewart's simplistic mocking served precisely the role that one would expect of a comedian: The first thing that makes people laugh is often the most powerful.

How is this week different? As I noted above, there was nothing about what happened this week that should have been catnip to a comedian. Especially given Stewart's recent track record on Benghazi, it would have been natural to continue to mock Republicans' inflated claims about a scandal. In the IRS non-scandal-scandal, it would have been just as easy to mock the outrage at the supposed witch hunt -- "Wait a minute! You're telling me that the IRS paid special attention to organizations that wanted not to pay taxes, because they might not be 'social welfare organizations,' and Tea Party groups were suspected of being fronts for lobbying operations? What an overreach!" -- as to adopt the crazy "targeting political opponents" meme that Stewart grabbed from Day One.

Returning to the title of today's post, the downside of our having people like Jon Stewart and Stephen Colbert provide political oversight is not merely that they are ill-equipped to fill that role consistently well. It is that they are really our only line of defense, at this point. Because they often do what they do so very well, we can often think: "Well, sure, the Fourth Estate is almost completely dead. But we really don't need them anymore." Until we do.

The IRS Mess Is Already Badly Misunderstood -- And the Distorted Narrative Will Only Get Worse

noreply@blogger.com (Neil H. Buchanan) — Thu, 16 May 2013 14:54:00 +0000

-- Posted by Neil H. Buchanan

Last Friday, a news story broke that quickly came to be known as "the IRS scandal." Even the just-the-facts-ma'am TaxProf Blog has taken to posting daily collections of news stories under that title, accompanied by the number of days since the story broke, e.g., "The IRS Scandal, Day 7" today. Move over, Iranian Hostage Crisis! (Who will be the new Ted Koppel, to emerge from this media frenzy?)

This is not to criticize TaxProf, or anyone else who is calling this a scandal. It is certainly being treated as one, by almost everyone, and it is difficult to resist a powerful narrative. Something did go wrong at the IRS, and it should be investigated and put right. There really are good reasons why everyone should worry about what happened. Based on what we know, however, this is either a medium-sized story that is being blown up into a huge story for partisan (and media-driven) reasons, or it is a big story that is big for a completely different set of reasons that are only mildly connected to the hyped-up story that is already being taken for granted.

What do we know? Not long after President Obama took office, the IRS was hit with a wave of applications by newly-formed political organizations, asking for the legal status known as 501(c)(4) organizations. Such organizations are not eligible to receive tax-deductible donations, but the organizations can run their operations exempt from taxation. (That is, they do not have to determine their revenues minus their deductible expenses, and then pay income tax on the difference.) That is, they are presumptively nonprofit, in the sense that they use their net proceeds to engage in "charitable, educational, or recreational purposes." 501(c)(4)'s can engage in political campaign activity, so long as that is not the organization’s "primary activity." What is such an organization's primary purpose supposed to be? Why, "the promotion of social welfare," of course.

The IRS is the government agency that Congress has designated to police this extremely vague set of rules. The IRS field office in Cincinnati is where 501(c)(4) applications are processed. The job of the IRS employees in that office is to try to figure out which of these organizations are really just political lobbying operations that do not meet the requirements for operating tax free. When hit with a wave of applications, all of which claim to be "social welfare organizations," the staff decided that they needed to set up a triage operation, figuring out short-cuts to find the groups that were likely to be pure political lobbying operations masquerading as something else.

When the wave of applications became overwhelming in 2010, some of the career staff (not political appointees, and as far as we know not even legal staff) looked out at the world and concluded that the sudden increase in applications was likely to be driven by the major new political movement that had emerged in 2009 and 2010. The staff then used keywords like "tea party" and "patriot" to sift through the applications. This led to a higher percentage of administrative inquiries -- not even close to half of the total, but still more than would otherwise have been the case -- being directed toward tea party-like groups.

Even though that strategy had its own internal logic, it was clearly wrong for IRS staff to adopt such a sorting rule. It was a big mistake, and it should not have happened. When higher-level career IRS people found out about it, they immediately declared that it was a mistake and must stop. Those higher-level people then made another big mistake, by not checking to make sure that it had really stopped. It apparently took about 18 months before they finally shut it down.

There are plenty of accusations and insinuations now flying around, along with newly emerging facts. The White House has forced out the acting commissioner of the IRS, and the Justice Department is investigating whether any crimes were committed. Even so, the facts at this point show that the IRS as an organization made two mistakes: (1) Using a decision rule that disadvantaged political groups with a common (in this case arch-conservative) political ideology, and (2) Failing to correct the error quickly and completely.

And now we are off to the races. Some politicians are likening this to Nixon's enemies list, in which the White House directly ordered the IRS to conduct audits of the personal taxes of Americans who were critical of the President. That is obviously not what happened here. Indeed, if there were a political cabal that wanted to use the IRS to harm the President's opponents, they could hardly have chosen a less effective method. Most Tea Party groups, by their very nature, are shoe-string organizations that would have virtually no money to tax, even if they were denied nonprofit status. And if the cabal really thought that this was a great idea, it is hardly clear why they would have shut it down over a year ago. Watergate, this is not. (And why would the imaginary cabal let big 501(c)(4)'s like Karl Rove's -- which clearly are not social welfare organizations -- continue untouched?)

No matter. The White House (and Democrats in general) are running scared. Even before dumping the IRS commissioner, the President contrasted the anger from Republicans over Benghazi with their reaction to the revelations about the IRS's stupidity, saying that the former is nonsense but the latter is a legitimate cause of public outrage.

This is understandable. Even though the net result of being tagged for extra scrutiny does not actually mean that the merits of your application are viewed unfairly -- your organization can still show that it is truly a social welfare organization, using the same facts and law that should legitimately be applied to your case -- being tagged itself is time-consuming and stressful, and it seems unfair. Although the analogy is hardly perfect, one can liken this to being in a group of people who are much more likely to be pulled over on the highway to have their cars searched. Even if a member of such a group is actually doing things that raise probable cause, and even if they are then given a fair chance to prove their innocence, it is still hardly a minor matter that being in the disfavored group increased the likelihood of having to deal with law enforcement officers.

Everyone, no matter their political ideologies, can understand why we would not want the IRS -- or any other law enforcement organization -- to use political criteria to determine enforcement patterns. No one, in fact, is defending this bone-headed plan.

What we have here, however, is an agency that is chronically underfunded by Congress (the IRS hardly being a historical favorite among the public or their representatives, especially the very Republicans who are now screaming the loudest), an agency that was faced with a wave of applications from politically-oriented groups, and an agency that had to decide how to apply a very vague law passed by Congress (and to do so without undue delay).

What these IRS employees did not only falls far short of Nixon's enemies list, it does not even come close to "targeting political enemies." As far as we can tell, the stupid plan was based not on any hostility to the ideological goals of the groups. It was based on the guess that such groups (which were being formed in response to a nationwide political movement) were more likely to be pure lobbying operations than "social welfare organizations."

This, of course, has not stopped the inevitable media and political firestorm from quickly distorting this into a scandal that is political with a capital "P." On "The Daily Show With Jon Stewart," for example, Stewart is freely describing this as "targeting political enemies." In fact, his nightly tirades on this topic have taken on their own narrative arc, to the point where he is now saying that this situation gives paranoid right-wing groups legitimate reason to believe that their worst fears are true.

Stewart has even complained that "the government" is terribly incompetent when it is supposed to do good things, but it is suddenly a well-oiled machine when it comes to doing things that we do not want it to do. That is clearly wrong. Whatever else might be going on, what started all this at the IRS was incompetence, not sinister proficiency.

Stewart, of course, is hardly alone. We now have the spectacle of a story that is completely misunderstood, a bad mistake that took too long to fix being recast as a political spy thriller. And with Democrats giving ground, saying (correctly) that what happened here is indefensible, they are being misinterpreted as agreeing that this was all motivated by partisanship. The facts say otherwise.

Even so, this will now spin into its own version of political reality. Certain events simply become emblems and political rallying points, completely disconnected from actual events. We can count on this story becoming less and less recognizable, and more and more politicized, for years to come. Look for "The IRS Scandal, Day 5349." Yippee.

When Search Warrants Accomplish Very Little

noreply@blogger.com (Sherry F. Colb) — Wed, 15 May 2013 12:30:00 +0000

By Sherry Colb

In my Verdict column for this week, I examine the case of Missouri v. McNeely, in which the U.S. Supreme Court recently refused to recognize an exception to the warrant requirement for blood-testing people arrested for DWI. The stated rationale for the exception -- which the Court rejected -- was that a person's blood-alcohol concentration (BAC) steadily diminshes over time and that therefore, any delay in a blood test (for purposes of obtaining a warrant) will result in the loss of potentially critical evidence of intoxication. The column considers the compelling nature of the argument for an exigency exception here as well as the Chief Justice's alternative compromise approach.

In this post, I want to consider a different argument, separate from the apparent exigency, for recognizing an exception to the warrant requirement for DWI blood tests: the relative clarity and uniformity of what it takes to make out "probable cause" in drunk driving cases, the determination that a magistrate would be making in reviewing a police officer's warrant application.

Note first that in order to arrest a suspect for DWI, a police officer needs the same probable cause that she would need to order a blood-alcohol-concentration test of the arrested suspect. That is, the question for both the seizure of the suspect (arrest) and the search of the suspect (blood test) case is whether the officer has probable cause to believe that the suspect was driving while intoxicated.

In many non-DWI situations, the determination of probable cause is a subtle matter that can accordingly benefit substantially from the neutral input of an objective magistrate. For example, an anonymous informant might say something incriminating about a suspect, and there might also be some limited but potentially innocent corroboration of the anonymous informant's story from subseqent surveillance, as in Illinois v. Gates. Magistrates will have an active role to play in such cases in determining whether the facts do or do not amount to probable cause, and their judgment is likely to be less invested in a particular outcome than that of a police officer who receives an anonymous tip.

Drunk driving cases, however, are different. Police develop probable cause to believe that a suspect has been operating a vehicle while intoxicated because, typically, a driver has been weaving in traffic and, once stopped, smells of alcohol, slurs his words, has bloodshot eyes, and is perhaps unable to perform basic manual tasks that would demonstrate sobriety. He may also be unwilling to breathe into a breathalyzer.

With minor variations, these are the facts that amount to probable cause for a DWI arrest and for a BAC test. The role of the magistrate is accordingly quite limited – she will look at the list of these sorts of facts and then issue a search warrant authorizing a blood test for BAC. It will be the rare case, in other words, that has a police officer concluding that there is probable cause to believe that a suspect is DWI, but a magistrate reviewing what the police officer says concludes that there is no probable cause. By now, there is practically a script for what amounts to probable cause for DWI.

There is, then, very little place for a neutral and detached magistrate to resolve ambiguity in a DWI case. Are there situations in which a DWI suspect shows most or all of the above signs of intoxication but is in fact not under the influence of alcohol? Of course. The suspect may be thoroughly exhausted (which, incidentally, can seriously impair driving capacity but does not presently preclude technically lawful driving) or ill or may have suffered a temporary seizure or other medical event. But that simply means that there is sometimes probable cause to believe that a person is driving while intoxicated when in reality he is not doing so. Probable cause is entirely consistent with innocence; unlike guilt beyond a reasonable doubt, it leaves in place a significant possibility of innocence, in the interests of gathering evidence and suspects when there is a substantial basis for concluding that a crime has actually taken place.

Notwithstanding my skepticism about the utility of a magistrate's review of probable cause in DWI blood test cases, I am prepared to acknowledge that all other things being equal, obtaining a warrant makes sense. For one thing, suspects may feel less violated by a nonconsensual blood test if a judge has authorized it, and some police officers may benefit from the supervision entailed in having to articulate probable cause to a magistrate. This is why I ultimately side with Chief Justice Roberts, who would create a limited exigency for occasions when getting a warrant would delay the blood test, rather than siding with Justice Thomas, who believes that a magistrate's review of probable cause to take a DWI blood test should never be required.

Chief Justice Roberts's opinion deserves praise and respect, I think, because he is not simply pursuing an ideological agenda (whether right- or left-wing) but is instead thinking creatively about how best to accommodate the competing interests at stake in the case. He has done this before, and his inclination to find viable solutions that parties may not have identified on their own is enormously reassuring, despite the fact that taking a firm stand on one side or the other may be more glamorous or rhetorically satisfying. I hope he will extend this inclination to other issues on which the Court will be ruling this term.

A Grudging Acknowledgment that Monsanto Deserved to Win

noreply@blogger.com (Michael C. Dorf) — Mon, 13 May 2013 16:23:00 +0000

By Mike Dorf

In the circles in which I sometimes run (vegans, hippies, commies, etc.), Monsanto is considered a very evil company. For one thing, the company has never quite shed its image as one of the two chief manufacturers of Agent Orange (along with Dow). More directly to the current topic--i.e., the Supreme Court's decision today in Bowman v. Monsanto Co.--the company is the single most important promoter of conventional farming. Although I'm not as worried about the inherent dangers of GMOs as some of my fellow crunchy green hippies are, I do share the concern that Monsanto's "Roundup Ready" seeds raise serious problems. More about that below, but first, a few words on today's decision.

Monsanto makes and markets both Roundup--a weed killer--and Roundup Ready (RR) seeds. Plants grown from the RR seeds have been genetically modified to survive the application of Roundup to the field. Thus, farmers buy the seeds, plant them, then spray the field with Roundup, which kills just about everything except the plants the farmer is trying to grow, in this particular case, GM soybeans from RR seeds.

As a condition of sale, Monsanto tells farmers that they can plant the RR seeds they buy but they cannot plant the RR seeds produced by the plants that grow from those seeds. Bowman, however, did just that, and Monsanto sued him for patent infringement. (Bowman also planted soybeans he bought from other farmers who had grown them from RR seeds.) He said that the suit was impermissible because the doctrine of "patent exhaustion" gives the purchaser of a patent item (here the RR seeds) the right to control secondary uses and sales. The SCOTUS, in a unanimous opinion by Justice Kagan, disagreed. To plant second and successive generations of seeds from the plants grown from the original RR seeds is to make new copies of the patented product, which both the patent and the license prohibit.

The opinion is short and persuasive. If Monsanto had lost, there would be little incentive for companies to develop seeds or other potentially self-replicating products because after the initial sale, the original manufacturer would not be able to capture the monopoly profits that warrant the initial investment in developing the product. If you think Monsanto's RR seeds are evil (more on that in a moment, I promise), you might think that's a good non-investment in this particular case, but the general principle espoused by the Court is sound. Consider a patented 3d printer capable of making innumerable sorts of useful (or fanciful) objects, including an exact replica of itself. Surely the patent rights of the inventor of the 3d printer include the right to block its use for making (and then selling without any royalties) such second and successive generations of 3d printers. (Seriously, self-replicating machines are possible and not at all evil. What could possibly go wrong?)

Are seeds different? The SCOTUS did not think so, and in the context of this case, I agree. Bowman deliberately set his mind to growing second and successive generations of RR seeds and plants. However, lurking just below the surface--and expressly set aside as outside the scope of the holding in Bowman--is a far more troubling question: What about farmers who do not deliberately set out to grow infringing RR plants but find that their fields are contaminated by the RR plants? Bees and even the wind spread seeds from the fields of farmers who purchased RR seeds to those who didn't.

Some of these farmers may consider the contamination a benefit. They were already using Roundup but with unmodified seeds. Now they get higher yields and make more money. Should these farmers have to pay Monsanto on an unjust enrichment theory? In one sense, they have "made" infringing copies of Monsanto's product, but if they were truly passive, then in another sense they didn't. To hold such passive recipients of Monsanto's bounty liable feels unfair. At the same time, however, a rule that excuses these accidentally benefited farmers from having to pay royalties could be difficult to administer. How is Monsanto or its minions to prove that the seeds were not just blowin' in the wind? Who bears the burden of proof on the question of whether there was deliberate planting or a kind of second-hand high from the RR seeds?

A second category of farmers stands in a very different position: Organic farmers who want to grow--and get paid a premium for growing--non-GMO plants without the application of Roundup or (with respect to insecticide-resistant seeds) insecticides to their crops. There have been reported cases of organic farmers experiencing contamination of RR crops, which, for them, is definitely not a benefit. Do they have to pay Monsanto a royalty for infringement? Conversely, should they be able to sue Monsanto and/or their neighbors for taking inadequate precautions to prevent the RR seeds from spreading?

There are also systemic harms that blow from one farm to the next. A recent study indicates that RR seeds and, more generally, the reliance on seeds that have been genetically modified to resist herbicides, leads to increasing use of herbicides because extensive use of Roundup breeds Roundup-resistant weeds. Eventually this could mean that Roundup is no longer effective, which would actually be unfortunate for people who don't buy exclusively organic: As herbicides go, Roundup is relatively benign. The herbicides that will be used in its place may not be. A similar fate probably awaits insecticide-resistant seeds and their respective complementary insecticides.

Thus, in the long run, the Monsanto strategy looks bad for sustainable agriculture and maybe even bad for Monsanto. But that's in the long run. In the short run, Monsanto makes a lot of money from its RR seed business and deserved to win in the Bowman case. Here, as elsewhere, we shouldn't confuse the right legal outcome with generally good news.

Is the Death Penalty Permissible for Feticide?

noreply@blogger.com (Michael C. Dorf) — Sat, 11 May 2013 12:53:00 +0000

By Mike Dorf

On Slate, Emily Bazelon questions the wisdom of seeking the death penalty for accused Cleveland kidnapper/torturer Ariel Castro. Bazelon accepts that Castro stands accused of truly heinous acts but he could not be executed for holding his victims hostage as sex slaves for a decade. He could only be executed if convicted of homicide, and the only homicide counts concern miscarriages he allegedly induced deliberately by starving and beating Michelle Knight, whom he had repeatedly raped. Bazelon argues that executing Castro for the harm he did to a fetus would be disingenuous; that was a serious crime, to be sure, but what makes Castro seem like a monster is what he did to the women he held as sex slaves.

The Slate article quotes extensively from two earlier columns by two DoL bloggers: one from 2004 by Professor Colb and another from 2003 by me. In different contexts, each of us argues that laws criminalizing fetal homicide do not violate the letter or spirit of Roe v. Wade. As Professor Colb (quoted by Bazelon), wrote, under Roe, "the choice of abortion belongs to the mother, and . . . taking away that choice by killing her fetus without her consent does as much—or more—violence to reproductive freedom as a prohibition against abortion would.”

I continue to think that fetal homicide laws are constitutionally permissible and that pro-choice groups make both a moral and a public-relations mistake when opposing such laws. However, making feticide a capital crime raises additional concerns. Here I think the constitutional issues are open and more difficult.

Under Coker v. Georgia and Kennedy v. Louisiana, the 8th Amendment prohibition on cruel and unusual punishments disallows the death penalty for non-homicide offenses. The Court in Kennedy gives two core reasons for the prohibition: first, as judged by positive law and state practice, there appears to be a nationwide consensus that the death penalty is disproportionate even for the very serious crime at issue there, the rape of an 8-year-old; second, as a normative matter, the death penalty should be reserved for the most serious offenses, and the line between homicide and non-homicide offenses is part of the threshold. (That's with respect to what the Court calls crimes against individuals, rather than crimes like treason.)

I think it's quite possible that the SCOTUS, if faced with the question, would say that there is also a consensus that the death penalty is disproportionate for feticide. Bazelon notes that 38 states have laws banning feticide but it's not clear how many of those states permit the death penalty for feticide and, to my knowledge, no state has, in recent memory, sentenced someone to death for feticide. (Scott Peterson was sentenced to death for the murder of his 8-month-pregnant wife but the feticide was not itself the death-eligible offense.) I'm not very confident about how the SCOTUS would evaluate the evidence of positive law, however; it's possible that states have not sentenced people to death for feticide because they think that existing SCOTUS precedent disallows doing so.

In any event, the normative considerations are separate and I'd like to focus on them because here a conflict with Roe is possible. Let's suppose that the 8th Amendment flatly forbids imposition of the death penalty for a non-homicide offense. The question is whether Roe has any bearing on whether feticide is a homicide offense.

Prima facie, I think the answer is yes. Suppose that some state were to classify the deliberate killing of a healthy dog as homicide, punishable by the death penalty. I think it clear that would violate Kennedy and Coker, and it would make no difference if state law also defined dogs as "persons" or "humans" for purposes of the homicide law. Why? Because the meaning of "homicide" in the Court's 8th Amendment jurisprudence is a matter of federal constitutional law, not a matter of state law. Thus, likewise, if a fetus is not a person for 8th Amendment purposes, then state laws criminalizing feticide are non-homicide offenses for 8th Amendment purposes.

So, what bearing does Roe have here? The questions are open, but I would say that the combination of Roe/Casey and Coker/Kennedy probably makes the death penalty unavailable for the killing of a non-viable fetus. The abortion cases say that the state interest in a pre-viable fetus is insufficient to overcome a woman's interest in freedom from remaining pregnant, so it's a fair conclusion that the state's interest in a pre-viable fetus is also insufficient to overcome an attacker's interest in his continuing to live, i.e., not to be executed.

I'm not super-confident of that answer, however, because the analysis seems to prove too much. After all, one could also conclude on the basis of Roe/Casey that the state's interest in a pre-viable fetus is insufficient to deprive a person of his liberty from physical restraint. But that's not right, because we know that the state may criminalize feticide of a pre-viable fetus and punish acts of feticide with imprisonment. So perhaps the viability line simply has no bearing on non-abortion feticide cases.

What about feticide of a viable fetus? One could make a Roe-based argument that even then, the death penalty is unavailable because Roe held that fetuses are not "persons" within the meaning of the 14th Amendment. That's an available reading but not, in my view, the best reading of Roe. I read that portion of the Court's opinion as addressing the question of whether the state must criminalize abortion rather than the question of whether the state may criminalize abortion. So one could read the opinion as a whole to say that the states may treat viable fetuses as though they are, in some respects, persons (subject to the availability of abortion for life-saving and health reasons even after viability). And one might then also say that the state may (but is not obligated to) treat feticide of a viable fetus as homicide for 8th Amendment purposes.

My own view, for what it's worth, is that the lines in the abortion cases ought to be treated as tangential. I oppose the death penalty categorically, but assuming that I take for granted the availability of the death penalty for some homicide offenses, I would allow it (as an 8th Amendment matter) for some intentional killings of sentient fetuses, whether or not they are viable. For me, the morality of abortion turns on whether it kills a being with interests of its own, and only sentient beings have interests of their own. I would still allow criminalization of feticide of a pre-sentient fetus because such an act does terrible harm to the would-be parents of the fetus killed.

(If you want the fuller explanation, you'll need to wait for the completion of a book that Professor Colb and I have begun co-authoring addressing abortion and animal rights. Her solo forthcoming book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, gives a partial account of the view in a chapter on abortion, and will be available for purchase next month. You can pre-order it already here or here.)

Future Generations, Government, and Prosperity

noreply@blogger.com (Neil H. Buchanan) — Fri, 10 May 2013 14:38:00 +0000

-- Posted by Neil H. Buchanan

In the alternate weeks during which I write a column on Verdict, my usual pattern is to write an associated post here on Dorf on Law on the same Thursday, and then to write a post the next day on a completely unrelated subject. This week, however, I will follow up yesterday's Verdict column and Dorf on Law post -- both of which discussed the reaction to Niall Ferguson's inane attack on John Maynard Keynes -- with yet another post on the same subject. Ferguson's comments were truly stupid, but they were stupid in a particularly inspired way. They are the gift that perversely keeps on giving.

For those who do not want to plow through my two earlier essays, a quick summary: Ferguson (a historian at Harvard who is a star in the Foxiverse for attacking Obama, Krugman, etc.) said that Keynes did not care about future generations because he was, (a) gay, and (b) childless. Ferguson has issued an apology of a sort, but he -- and many other conservatives -- continue to believe that Keynesian economics is based on the selfishness of current generations, who heedlessly pile government debt on the backs of our children and grandchildren. This, they claim, is what Keynes must have meant when he issued the diabolical statement: "In the long run, we are all dead." Why care about a future in which one cannot picture oneself (or, apparently, one's genetic issue)?

In my Verdict column, I described how Keynesian economics is very much oriented toward improving the well-being of both current and future generations, in a way that conservative economics is not. In my post yesterday on Dorf on Law, I took a mock-serious look at the prejudices underlying the idea that gay and/or childless people are selfish and unconcerned about future generations. Among other things, I asked for a pardon because -- even though I am openly childless -- I have devoted my career to teaching young people, and to creating and propagating knowledge for the benefit of future generations. I could, after all, have been the father of ten children, but spent my career as a lawyer for coal companies, helping my clients destroy the environment in which my children and grandchildren would be struggling to breathe. I await the judgment of the Court of Future Generations.

Today, returning to a more serious mode, I want to add two further issues to the discussion. First, I want to think more systematically about the illogic of the conservative attack on Keynes's "... we're all dead" line. As anyone who has actually looked at the original comment in context knows, Keynes was responding to the assertion during the 1930's that the government should do nothing in response to the suffering caused by the Great Depression, because "in the long run, the economy will return to full employment." Keynes responded that this was a lazy argument from his opponents, because it boiled down to the statement that, "after the storm passes, the sea will be calm." As the kids would say: "No duh!"

What that analogy does not capture, however, is the additional power of Keynes's theoretical approach, which takes seriously the step-by-step (path dependent) nature of history. Allowing the economy to stagnate for years on end -- in the immortally disgusting words of Andrew Mellon, who advised Herbert Hoover to "liquidate labor, liquidate stocks, liquidate farmers, liquidate real estate… it will purge the rottenness out of the system." -- is not a neutral matter. Unemployed people become harder to re-employ as time passes. Businesses do not engage in investments that will enhance the future prosperity of the economy, because the path from here to there is not profitable enough to make it worth it, when there are not enough customers (because people do not have jobs) to buy the businesses' goods and services.

While we wait for the long run, families are destroyed, as the stresses of long-term unemployment lead to suicides, murders, spousal and child abuse, drug and alcohol abuse, and so on. Bad economic prospects discourage young people from marrying and starting families. Governments (if they follow the bad advice of anti-Keynesian economists) allow all this to happen, and make matters worse by allowing the economy's public investments (schools, roads, electrical grids, ports, and so on) to decay.

Mellon's vision of a refreshing, cleansing storm is thus completely inapt. We get to the long run by experiencing a series of short runs, and what we do during each short run affects the future path. This is so obvious that the anti-Keynesians must be making a conscious effort to ignore it. Acting as if the "production function" (to use the econ-geek term) of the future economy is unaffected by the path of the economy might make the analysis cleaner mathematically, but it is clearly wrong.

A possibly interesting analogy along these lines occurred to me, as I was thinking about Ferguson's public blundering. In Christian theology, the equivalent of "the long run" is eternal salvation. That, we are told, is the promise that God makes to all who truly believe in Him. This promise, however, immediately raises two related problems: (1) If there is a promise of heavenly bliss after one's life on earth ends, why should people not speed along the process, actively choosing to join God as soon as possible? and (2) If all it takes to get into Heaven is to take Jesus truly into one's heart, why not do whatever one wants during life and then take Jesus into one's heart immediately before death?

Obviously, different denominations (and different theologians within various denominations) have addressed these basic questions for centuries, reaching various and contradictory conclusions. The point of all of the responses that have been offered, however, is that the path matters. And non-religious ethicists are similarly concerned with the content of the journey, and with the actions and choices made along the way, not just with the end point (either death, or life after death). It is truly bizarre to imagine anyone arguing that what happens along the way (on any journey) is simply irrelevant, but that is what the argument to which Keynes was responding actually says.

That is not to say that government policymakers are incapable of making bad choices along the path. Saying that government can make things better does not mean that anything it does will do the trick. Which brings me to the second additional issue for today's discussion: Will the choice to have the government respond actively to an economic downturn result in a larger government sector in the long run, which will suck up economic resources in a way that reduces long-run living standards, or that will harm future generations in some other way?

One aspect of this issue is captured by Paul Krugman's recent discussion of "Naive Fiscal Cynicism," in which he considers the lack of evidence behind the idea that Keynesian responses to economic catastrophe "never go away." The claim from the "naive fiscal cynics," after all, is that once a government bureaucracy gets going, it grows and grows and becomes committed to its own continued leech-like existence. The problem is that the evidence simply does not back up that belief. Neither the New Deal programs, nor the Obama stimulus spending programs (as minimal as they were), became permanent fixtures of the U.S. government. They were temporary -- too temporary, in fact -- and certainly not the ever-growing Leviathan-like monsters of dystopian fantasy.

There is, however, a different aspect of the story about the possible growth of the government sector. If we did not see the federal government's role in the economy grow due to a path-dependent accumulation of powers in the post-Depression era, then why is the federal government so much bigger today than it was in 1932?

The answer is that there really is a role for government that is not tied to the economy's short-run health, which we finally took seriously in the last three generations. That is the idea behind all of my advocacy of increased public investment. We need to improve education, infrastructure, and so on, continuously and at all times, to increase long-run living standards. Without doing so, we might not all be dead in the long run, but our children and grandchildren will certainly be poorer than they would otherwise be.

For the anti-Keynesians whose real objection is to government itself, this presents two possibilities. First, they can claim that the category of "productive public investments" is the empty set. This, however, requires them to deny the insights of Adam Smith himself (to say nothing of the overwhelming weight of the evidence), who readily acknowledged that there are public goods, and that government is the only entity that is capable of providing those goods in appropriate amounts. We can have healthy debates about which goods should be provided, and how much should be spent; but that is very much a Keynesian conversation. One can be in favor of relatively large or small amounts of ongoing federal investment spending, based on the evidence, without being deeply committed to Big Government or Small Government (whatever that might mean).

Short of contradicting Smith, what is an anti-government ideologue's other choice? He can admit that the government can increase future living standards, but he can insist that such increases come at too high a price. For those who believe that government is per se bad, it might be necessary to pass up the material improvements from government action, to preserve private freedom.

I find that argument utterly unconvincing, of course. I do, however, understand the sequence of logic. In the "childlessness and lack of concern for future generations" discussion, however, it is important to point out what this anti-government argument also implies: People today are determined to pass up opportunities that could increase future living standards, in favor of what they view as the higher principle of personal (and business) freedom. They are thus saying that they are willing to reduce the living standards of not only their own children and grandchildren, but of the future generations of other people as well. That is not an inherently immoral choice, depending upon how one thinks about the various tradeoffs, but it is certainly no less arrogant a choice than the anti-Keynesians accuse Keynesians of making. Telling me that the children of my nieces and nephews must live poorer lives so that the government is never allowed to tell them to buy broccoli strikes me as a rather aggressively selfish choice -- at least as selfish as my telling them that their children can inherit some debt, in exchange for higher future living standards.

Economists Under Suspicion: Who Has Children, Who Doesn't, and Why in the World Should It Matter?

noreply@blogger.com (Neil H. Buchanan) — Thu, 09 May 2013 09:35:00 +0000

-- Posted by Neil H. Buchanan

In my new column on Verdict today, I discuss a bizarre incident last week in which a conservative pundit attempted to use anti-gay smears to suggest that John Maynard Keynes's supposed lack of concern about future generations (which is based on a criminal misreading of Keynes's famous quip: "In the long run, we're all dead") was based on selfishness and disregard for the children of others. That pundit, Niall Ferguson, soon issued what appeared to be a sincere apology, but it is now becoming clear that, (a) his purported apology was carefully crafted to minimize the initial transgressions, (b) he has a history of saying such things about Keynes, and (c) he is now back to claiming that Keynes's sexuality was significant for some purposes (just not for the future generations thing).

I tried to spend as little time in my column discussing Ferguson as possible, because I wanted to focus on just how crazy it is to describe Keynesian economics as harmful to future generations. I will return to some further substantive thoughts along those lines in tomorrow's post here on Dorf on Law. Today, however, I thought I would indulge in a bit of bemused introspection about what Ferguson's framing of the issue might say about me.

To be clear, Ferguson now says at least that the following two embedded assertions in his remarks are stupid: (1) Gays cannot have children, and (2) People without children do not care about the well-being of future generations. (As Bill Black points out, however, the point that Ferguson was making when he uttered those two inanities could have been supported only by making the second assertion. Including the first assertion, and tying it to the second, is hardly an innocent strategy. By the way, Black also points out that George Washington and Jesus Christ were childless. Hmm.)

Even with Ferguson's disavowal, however, it is clear that he and others have made similar claims in the past. Just in case a few people are wondering about the connections between other Keynesians' personal lives and their views on future generations, I offer this helpful self-revelatory guide.

First, am I gay? No. So we can check that off the list, right? Well, not exactly. My late brother was gay, and he had no children. Maybe he did not care about future generations, and that had an effect on me, right? He was my big brother, closest to me in age, and I learned a lot from him. Except that before Kevin died, he set up our oldest niece with enough money to pay for her entire college education. He then provided money in his will to all of his other siblings, to be invested and then to be used to pay for college for their children. That selfish jerk!

Second, do I have kids? No. Uh oh. Again, however, I also have those nieces and nephews whom Kevin cared about. (It is an amusing coincidence that this discussion would arise so soon after I proudly described my 25-year-old nephew's budding career.) Presumably, my non-gayness would somehow make me more likely to care about them, too -- maybe because (and it is admittedly rather difficult to figure out what these homophobic anti-Keynesians might be thinking) I could at least imagine that they could be my children, because, you know, I have had sex with women? Or something like that.

Do I get credit for having gone into teaching as a career? My professional life has been devoted to generating new knowledge, and passing it (along with the knowledge inherited from generations before us) to young people. Maybe that means that I care more about the welfare of future generations than does a guy who got drunk and forgot to use a condom, and then "did the right thing" by entering into a loveless marriage.

Cynical? Absolutely. Is that not what this whole discussion is about -- casting aspersions on people who, in Keynes's case, read poetry to his eventual wife, rather than dispensing with the foreplay and getting down to a man's business? Isn't the insinuation that Keynesian policies are anti-children (They're not, of course, but go with me here) because people like me do not engage in sex with intent to impregnate?

What about when I get married? Will being a step-father change me, turning me suddenly into a deficit-obsessed austerian, intent on mischaracterizing the Obama stimulus as a huge failure? And if I do not change my views, will being a parent give those views greater credibility? Does the age of my future step-children matter? Does being partly responsible for 20- and 23-year-olds not count, because they are too old to set off my daddy alarm? Would it matter if I married a woman with preschool-aged children? Or is it all about genetics? Do parents who adopt children suffer from the same selfishness that I apparently do, because they are merely caretakers for someone else's genetic material? Inquiring minds want to know.

I am a Baby Boomer, which means that I am somewhere between the ages of 48 and 67. If I were to marry a woman of child-bearing age, would I be spared the suspicion that I do not care about future generations? Or would I need to sign a statement saying that I intend to prove my fertility with that younger woman? (I begin my Verdict column by noting the odd similarity between these questions and the illogic of the anti-marriage-equality arguments in the Prop 8 case in the Supreme Court earlier this Spring.)

The most important question, of course, is why I would not care about future generations, when I will be relying upon them in my dotage. Indeed, I need to be especially concerned about the economic well-being of all post-Baby Boomers, because they are the ones who will be indirectly sharing with me the goods and services that they produce when I stop working. Because I will not have genetic offspring on whose doorstep I can land if things go wrong, I need to make sure that the next fifty years or so are prosperous enough that I can get a pass. I need to ensure that I am not the victim of public policies that would be the equivalent of telling me to walk out onto the tundra to die. And without biological children on whom I could supposedly rely, everyone's children are my children -- even from the most self-interested point of view imaginable.

Bottom lines: (1) Buchanan is not gay. (Not that there's anything wrong with that.) (2) Buchanan has no biological children, and probably never will. So, do I care about future generations? Ferguson now allows that "it is obvious that people who do not have children also care about future generations." Well, not all of them do. But those who do not are both selfish and unable even to understand how to be a successful narcissist.

The Gitmo Hunger Strike and the De Facto Right to Suicide of Healthy Non-Prisoners

noreply@blogger.com (Michael C. Dorf) — Wed, 08 May 2013 12:30:00 +0000

By Mike Dorf

My latest Verdict column addresses the legal issues surrounding the forced feeding of detainees at the Guantanamo Bay prison. I conclude that the courts probably will not order authorities to stop the forced feedings, even as I raise serious questions about the wisdom of the policy. Here I want to explore some related questions about non-prisoners.

My conclusion in the column rests on both jurisdictional and substantive obstacles faced by any lawsuit to enjoin forced feedings (including analysis of cases that already have failed). The starting point of my substantive analysis is the assumption--made by a majority of the Supreme Court in the Cruzan case--that a competent free adult has the right to refuse medical treatment, including food and water.

No discussion of Cruzan would be complete, however, without also noting that seven years later, in the Glucksberg case, the Court drew a constitutional act/omission distinction. Thus, whereas the Court in Cruzan assumed that there is a constitutional right to refuse medical treatment even if the result is death, in Glucksberg the Court held that there is no constitutional right to "actively" terminate one's own life.

The hunger strike at Gitmo is an attempt to exercise the Cruzan right rather than the Glucksberg non-right, but a lawsuit aimed at preventing forced feeding will likely fail on the merits (if a court reaches the merits) because courts give substantial deference to prison authorities so that as a practical matter, the government has a lesser burden for infringing rights of prisoners (and other detainees) than for infringing the rights of persons on the outside.

Nonetheless, if we imagine a hunger strike by a non-prisoner, it's pretty clear that absent a demonstration that the hunger striker is incompetent, he or she would have the legal right to starve himself or herself to death. In a separate opinion in Cruzan, Justice Scalia objected to the assumption of a constitutional right to starve oneself to death, given the long tradition of laws forbidding suicide. In light of that tradition, he thought that there could be no constitutional right to refuse medical treatment that encompassed cases of suicide. But he was out-voted and it was clear, at least at the time of Cruzan, that in a case involving a competent patient who clearly expressed the desire to "pull the plug," five Justices would have found a constitutional right to do so.

I co-authored an amicus brief and helped the lawyers for the (ultimately losing) plaintiffs in Glucksberg. In arguing for a right to physician-assisted suicide, we tried to offer the Court a narrow ground for ruling in our favor: The right, we claimed, need only be made available for end-stage terminally ill patients. The Court rejected this limitation. It mostly rested its holding on an act/omission distinction, but, as in Cruzan, the majority in Glucksberg also validated a state interest in valuing all human life, even the lives of the terminally ill. The Court also noted that people who are terminally ill often are suicidal because of untreated but treatable depression. Whatever one thinks of the particular arguments, looking back on the pattern of cases now, the results strike me as at least ironic and perhaps even perverse.

Suppose two people:

(1) Terry is terminally ill and suffering from some terrible condition for which there is no fully effective palliative care available; perhaps she has symptoms (like shortness of breath) that do not respond to anaesthetic or perhaps doctors fear to give her sufficient anaesthetic to treat her pain because doing so could open them to charges of assisting suicide. Cruzan and state common law rights to refuse medical treatment permit Terry to starve herself to death, a process that could take weeks but do not permit a doctor or anyone else to give her a lethal dose of medicine. We may further assume that Terry is too weakened by her condition to kill herself using means already at her disposal (by, say, hanging herself with her bedsheets).

(2) Devon is a physically healthy 25-year-old who is very depressed because of a recent breakup with his girlfriend. He wants to kill himself. Under state laws like the one upheld in Glucksberg, Devon cannot legally obtain assistance killing himself but he doesn't need such assistance because he is healthy. He can shoot himself, hang himself, jump off a bridge, whatever. Should he attempt one of these methods and grievously wound but not immediately kill himself, he can even refuse lifesaving interventions from medical personnel, relying on the right assumed in Cruzan and recognized under state common law.

Accordingly, under the law as it stands, there is a de facto right to "active" suicide for people capable of killing or mortally wounding themselves without assistance, but not for people who are so incapacitated by disease as to be unable to kill themselves without assistance. That is a difficult line to justify.

Caring About Teaching

noreply@blogger.com (Michael C. Dorf) — Tue, 07 May 2013 12:00:00 +0000

By Mike Dorf

Each of two sections in this past Sunday's NY Times contained a story about teaching. Taken together they paint a jarring picture of the difference between, on the one hand, primary and secondary education, and on the other hand, university education.

The piece in the Sunday Review section collected letters from readers about what makes for a great primary or secondary school teacher.  Readers disagreed along several axes. Should schools hire teachers for the long haul to get stability or do they benefit from the energy, enthusiasm and talent provided by the relatively short-timers of Teach for America? Can we distill the lessons of studies of teaching into "scripts" that encapsulate "best practices," much in the way that health care reformers aim for evidence-based medicine? Or is teaching more of an art or craft that requires more subtlety in response to the infinitely varied circumstances students present, so that teachers need a freer hand to be creative? Do these and other dichotomies themselves present false choices?

The thoughtful letters from teachers, administrators and one current high school student suggest a range of possible answers. Wherever the particular letter writers come down, it is clear that each of them thinks that there is such a thing as good teaching and that schools should aspire to hire, train and develop people who will become good and eventually great teachers.

Contrast that consensus with the attitude implicitly adopted by university administrators described in a news story about the hiring of various disgraced politicians and other public figures: Can he teach?  Of course. He held an important job and therefore has a great deal of knowledge to impart to our students.

In some, perhaps most, instances, the calculation is probably right. If one wants to learn about counter-insurgency strategy, it really would be hard to find a more knowledgeable person than David Petraeus, and Petraeus holds a Ph D from Princeton, so his conventional university credentials are at least as good as those of his traditional colleagues. Similarly, I imagine that Eliot Spitzer would be a dynamic classroom teacher. He's an excellent public speaker and clearly a very smart guy. Indeed, it's possible that the universities that hired the public figures discussed in the Times story made just these calculations.

But there are two other possibilities. One is that these are merely publicity stunts. A disgraced politician or public figure is still a big name, and so one can imagine that the name recognition alone is driving the hiring. I don't want to discount this possibility entirely but I think it's probably not the whole of it. Certainly the hiring by the Parsons School of Design of John Galliano--whose disgrace was an anti-Semitic rant--seems impossible to justify on a no-such-thing-as-bad-publicity rationale.

Rather, in the case of Galliano and the others, it seems that the core calculation went something like this: If someone is very knowledgeable about some subject, that qualifies him or her to teach about that subject. I imagine the hiring decisions in the case of the disgraced public figures going that way because that is how full-time higher-education faculty are generally chosen.

To be sure, in most fields, by the time someone is hired as an assistant professor, he or she will have some teaching experience, most likely as a TA while a doctoral student. That's increasingly true in law schools too, as we hire more and more dual-degree faculty. But even in other subjects and certainly in law, prior teaching experience--much less prior successful teaching experience--simply is not a hiring criterion. At least not officially.

It's tempting to think that colleges and universities gravitate to one poll of the debate over teaching one sees on display in the debate over teaching in primary and secondary school--call it the Dead Poets Society model: The unorthodox but dedicated teacher who refuses to be bound by convention inspires in his students a love of learning.  But that's not what's going on at all. The people who advocate for primary and secondary teacher freedom to experiment think that it takes time and effort to become a great teacher. They just think that it takes a different kind of effort from what the "best practices" camp supports.  In higher education, by contrast, the assumption is that if someone knows the field, teaching will more or less take care of itself.

Consider my own case. I began my full-time law school teaching career in 1992. As it happens, I had a fair bit of teaching experience already. As an undergrad, I worked as a "course assistant" in a math class. Between college and law school I filled in as the instructor in a thermodynamics class when I was (briefly) a physics grad student. I spent three summers teaching various subjects to high school students. And I taught legal research and writing to 1Ls as an upper-level law student. Some of those gigs involved some brief training piece but nothing systematic. In each position it was more or less assumed that: a) I had been a good student so I knew the subject; b) I had experienced good teaching from the student end so I would use my best teachers as role models; and c) most of what makes for good or bad teaching is a combination of pre-existing talent and hard work, so I either would or would not be a good teacher and there was no point in wasting time trying to make me a better one. When I interviewed for my first tenure-track law position, nobody asked me anything about any of my prior teaching experience.

If it sounds like I'm dumping on higher education, I am, but only a little. The truth is that at each of the law schools at which I have taught--Rutgers-Camden, Columbia and Cornell--nearly all of my colleagues have valued teaching a great deal, both by working very hard at it themselves and in wanting to hire and retain faculty who will not only be excellent scholars but also excellent teachers. I have seen teaching make a difference--in both directions--at the hiring and the tenure stages of careers. So the problem is not that university faculty don't care about teaching; it's just that we too often assume that knowledge of a field makes for good teaching. Yet being knowledgeable is at best a necessary condition for successful teaching, not a sufficient one.

Here too my experience, now as a student, is illuminating. As an undergraduate I took a lot of courses in which doctoral students taught weekly sections or labs. Mostly, I learned from dedicated TAs who did a very good job. But teaching was often required of grad students in exchange for tuition waivers and some of the students in most need of money came from overseas. One such grad student was my lab TA in an electronics course I took. I'll call him B.

B was an electronics wiz but he spoke almost no English. During each lab session, we were supposed to make a different simple device: a digital clock; a four-function calculator; etc. Invariably, there would come a point in the lab where the student thought he or she (okay, nearly all he) had correctly assembled a circuit, only to find that it wouldn't work properly. You would then take your circuit to B and ask for a correction or hint. B would stare at the circuit for a few seconds, then move his hands furiously, disconnecting and reconnecting wires, capacitors, resistors, etc., and suddenly presto: It worked! He would then smile and say "amperes." The student would walk away in a daze.

B's case is extreme, but it illustrates the obvious point that teaching requires more than knowledge of the subject matter. It requires communications skills and other skills.

I admit that much of my hand-wringing may seem beside the point. A very high and increasing proportion of college and university student-hours are taught by adjunct faculty who are in fact hired (and underpaid) chiefly as teachers, not as scholars. So if current trends continue, the worry that scholars are not trained to teach may come to be irrelevant to most of higher education. Arguably it already is.

However, that fact seems to me to make it all the more urgent that those of us who think that an open society needs universities justify and reform teaching by scholar-teachers. For what it's worth, I think there is more than a kernel of truth in the traditional view held within research universities. It's not that being very knowledgeable about a subject guarantees that one will be a great or even a competent teacher. However, one cannot be a truly great teacher without really knowing a subject deeply. One doesn't need to be a scholar to gain a deep knowledge of a subject. That's why there's something sensible about colleges and universities hiring people with deep knowledge gained by experience, even if they have been disgraced for other reasons.

It may be that over the long run universities are doomed. Much of the value they produce takes the form of public goods, in which societies tend to under-invest. But even on the "private" end--providing educations to individuals--we need to pay attention to and learn from debates about what works in education, where our peers in primary and secondary education are way ahead of us. We also need to do a much better job of articulating why learning from a truly expert skilled teacher actually provides a better education than learning from a merely somewhat knowledgeable skilled teacher. (I haven't articulated the argument here. Perhaps I'll return to the topic in a future post.)

The DIG Rule and the Rule of Four Reconsidered

noreply@blogger.com (Michael C. Dorf) — Mon, 06 May 2013 11:00:00 +0000

By Mike Dorf

Less than a month ago, in a post on the oral arguments in the Same-Sex Marriage Cases, I wrote that

it takes six votes to DIG [that is, dismiss as improvidently granted]. (Since it takes only four votes to grant cert--the so-called "rule of four"--permitting even five votes to accomplish a DIG would undermine the rule of four.)

Then, last week, the Supreme Court proved me wrong. In Boyer v. Louisiana, the Court DIG'd by a vote of 5-4. What gives?

Okay, so to begin, I hadn't expressed the general understanding of the DIG rules quite precisely or accurately. As traditionally stated, what's required is that one of the Justices who voted to grant must agree to DIG. If there were originally only four votes to grant, then that shift will mean that it takes six votes to DIG: the original five no votes at the cert stage plus the Justice who has had a change of heart. So I should have said it usually or often takes six votes to DIG.

But if the DIG rule is phrased in the way I've just described, it can still undermine the rule of four. Let's use Boyer as an example. The 5 votes to DIG were CJ Roberts plus Justices Scalia, Kennedy, Thomas, and Alito, with Justices Ginsburg, Breyer, Sotomayor, and Kagan wanting to reach the merits. We don't know who voted for and against cert in the first place but let's suppose that the original votes to grant were by the four merits-reachers (Ginsburg, Breyer, Sotomayor, and Kagan), plus one of the Justices who voted to DIG: I'll guess Justice Alito, as he wrote the concurrence in the DIG. After oral argument, Justice Alito concludes that he originally voted to grant based on an erroneous assumption, so he now votes to DIG. The result is a DIG by 5-4, even though four of the Justices who originally voted to grant still think the grant was proper. By joining the vote to grant and then changing his, Justice Alito (in my hypo) was able to convert an otherwise-unDIGable case into a DIGable one. So even though the rule appears to be that it takes a total of 5 votes to DIG, so long as one of the five originally voted to grant, I think a better rule would be the one I announced last month: It should always take 6 votes to DIG.

At least that would be a better rule if one were interested in protecting the Rule of Four. But maybe there's no very good reason to protect the Rule of Four. The Rule of Four itself is not even codified. The Supreme Court Rules set forth criteria for granting (and denying) certiorari but not the procedures that govern the Court's decision about how to resolve conflicts regarding how to apply those procedures. The Rule of Four appears to be a longstanding practice that the Court observes, regarding it as binding on itself.

This leads to the question: Why four? If only four Justices want to hear a case, why not deny? One answer might be that a rule requiring five votes to grant would merge the merits and the decision to grant--but that's also a risk under the Rule of Four. Suppose an ideologically divisive case in which four liberal Justices want to grant to reverse a conservative circuit court ruling but they think that the remaining five Justices will affirm the lower court ruling if the case is granted. If they're worried about the merits, one or more of the four liberals might vote to deny, thinking that at least this way the lower court's ruling will be confined (temporarily) to one circuit. Cognoscenti call such strategic voting a "defensive deny," and there is some debate over whether it is legitimate and over how often it occurs.

Putting aside strategic behavior and ideological cases, the justification for the Rule of Four is plain enough: If four Justices think a case satisfies the cert criteria, that ought to be enough to place it on the docket. They're not necessarily saying the lower court got the outcome wrong, just that the issue is important.

But once we recognize that four Justices' say-so is simply a rough measure of importance, there's nothing special about four. Indeed, I think one could make a good argument for a Rule of Three or maybe even a Rule of Two. After all, the Rule of Four originated at a time when a large portion of the Supreme Court's docket consisted of mandatory appellate cases. Congress eliminated nearly all of the mandatory appellate jurisdiction in 1988, but the Rule of Four persists--and this probably plays some role in the shrinkage of the Court's docket.

Hence, my modest proposal would be to go to a Rule of Three or even a Rule of Two.

Bipartisan Socialism and Subsidizing American Business

noreply@blogger.com (Neil H. Buchanan) — Fri, 03 May 2013 14:56:00 +0000

-- Posted by Neil H. Buchanan

One of the recurring themes of my Dorf on Law posts over the years has been to expose the logical inconsistencies in standard economic arguments. Usually, this involves showing that the "neutral," or "objective," or "scientifically required" implications that all too many economists consider to be non-normative are being used (mostly, I think, on purpose) to import a normative agenda into the policy discussion. Many philosophers of science (and even some economists) have noticed this over the years, of course, and the interesting meta-question is why this obvious fact -- that there is no neutral "state of nature" from which a disinterested social planner could derive efficient rules and policies -- is so frequently ignored by economists and policymakers alike.

This is obviously a big topic, which can be addressed in a rich variety of ways. Today, I will think small-ish, offering a few preliminary thoughts that might later develop into a larger project.

Politically motivated people in the U.S. (and elsewhere) who try to apply the simplistic lessons of orthodox economic theory take as a matter of bedrock principle that the government should not favor one activity over the other. Even people who concede that there is no such thing as true neutrality often nevertheless insist that the best approach to policymaking is to "allow the market to work" and thus to adopt a policy that does not "put a thumb on the scale." That is the core principle behind laizzez-faire economics, and that principle is used to argue against the welfare state, against redistributive taxation, against the regulation of businesses, and so on. If the government picks winners and losers, we are told, then the market works less well than it could and should.

This makes it especially surprising that both parties in the U.S. -- the far-right Republican Party, which is the heir to a formerly center-right and right party of the same name; and the center-right Democratic Party, which is the heir to a formerly center-left party of the same name -- compete to create incentives for businesses to increase the amounts that they invest in new factories, equipment, and so on. Historically, Democrats have preferred to subsidize business investment through the tax code, while Republicans have preferred simply to reduce taxes on profits (especially capital gains).

There is both a short-run and long-run aspect to this. In response to the Great Recession, even the post-stimulus policy responses from Congress have included extremely generous tax provisions designed to increase business investment (especially by small businesses -- the "job creating" darlings of the current Republican Party). But even when the economy is strong, the tax code has baked-in subsidies for business investment, most prominently in the form of "accelerated depreciation deductions," which are simply nod-and-wink provisions that allow businesses to pretend that their investments are wearing out sooner than they really are. This increases a business's deductions, and thus reduces the taxes that the business must pay.

These provisions, according to most research, are notoriously ineffective in actually increasing investment above the levels that we would otherwise see. (This is true of both parties' preferred methods of encouraging investment.) Let us put that aside, however, and assume that the goals of the policies are met, that is, that businesses spend more of the economy's resources on investment each year than they would otherwise be willing to spend. Why would a political culture that reveres laissez-faire economics view that as a good outcome?

Or, to put the point more provocatively: Why are Republicans and Democrats alike so interested in defying the free market by socializing business investment?

The only possible answer to that question is that people must be assuming that investment would be too low without the tax incentives. But compared to what? Obviously, we do not want to use all of society's resources each year to invest in future production of goods and services, because we have to use some of those goods and services to keep ourselves alive and to enjoy some of the fruits of our labor. How to balance the tradeoffs? The standard answer, of course, is to rely on the price mechanism. People choose between buying diamonds and water, or apples and bananas, or taking a vacation and working overtime, in response to the prices that they face for each choice.

There is, of course, a price that reflects the relative cost of present versus future consumption. It is called the interest rate, and it tells us how much future consumption we lose by engaging in $1 of current consumption (and thus not investing that dollar in future output). We are told to reluctantly accept the cold logic of the market when it tells us that financiers are "worth" more than social workers, or that healthy food is more expensive than unhealthy food, so why are we not told to just suck it up and accept whatever level of investment that the free market generates, without trying to subsidize it?

The standard economic model only has one answer to this: market failure. Despite the deep skepticism inherent in orthodox economic theory to the idea that markets can fail (or that attempts to fix those failures will not be worse than the failures themselves), there is at least a logical case to be made that the present-versus-future tradeoff will not be made in the real world in a way that reflects true underlying costs and benefits. There might be biases toward present consumption, for example, either through myopia or (for longer time periods) the inability of not-yet-born people to express their preferences.

There is a lot to unpack in all of that, of course. Much of it harkens back to my work on generational justice, for example. Here, let me simply pose a slightly different question. Suppose that one believes -- truly believes -- in the Invisible Hand, but that one is also realistic about the possibility that market failures exist. If we could correct the market failures, then we would not need to do anything further to subsidize or penalize any particular choices. In addition, we can always point to particular government policies that arguably cut in the wrong direction on specific goals, so that the second-best choice is to undo the damage that previous decisions have inflicted on society.

This would suggest, however, that we can justify taking any action, so long as we can say, "This is only contingent on the correction of market failures, especially including unwise government policies that have pushed us in the wrong direction." If that is the justification, however, then why do we consider the laissez-faire approach to be our default at all? The assumption, after all, is now that avoiding action does not bring us back to the state-of-nature default position, but rather to a state of the world that is tainted by other bad policies and market failures.

One could imagine a believer in hands-off policies saying that, sure, the government has mucked up the world, so we have to be pragmatic and sometimes choose to undo the damage by deviating even further from laissez-faire. But, this true believer would insist, that must be done as infrequently as possible, so that we do not mess things up even more.

Which brings us back to socialized business investment. Most of the people who are gung ho for business investment incentives/subsidies are horrified at the idea of rough-and-ready approaches to fixing other social problems. Why should we subsidize business investment but not worker retraining? Why divert resources toward businesses, rather than toward retirees who under-saved during their working years. Why do some problems get the "tough luck!" back of our hand, while others are worthy of policy intervention?

I suspect that any current politician who was even minimally capable of comprehending this question might respond by saying, "But investment increases future economic growth!" That, however, merely restates the question, because it is simply not a given that more growth is always better.

Obviously, I am not expressing shock that politicians are logically inconsistent. The question is why the logical inconsistency always seems to point in the same direction. Even the people who claim to be consistent in their belief that government should not intervene in the economy have (to my knowledge) never expressed dismay that we have socialized business investment. That is a choice, not the result of applying neutral principles to analyze the world.

Repeating Myself Repeatedly

noreply@blogger.com (Neil H. Buchanan) — Thu, 02 May 2013 15:16:00 +0000

-- Posted by Neil H. Buchanan

About six months ago, a surprisingly obvious point suddenly occurred to me: I repeat myself for a living. (I am fighting the temptation here to retype the same sentence several times.) Like all teachers, it is part of my job to say things again and again, to make sure that my students "get it." And because people are not perfect information processing and storage machines, teachers must repeat themselves. In addition, when a new group of students is enrolled in a class, it is necessary to repeat everything all over again (with appropriate revisions). Earlier this week, Paul Krugman was musing on the same topic, and he was his usual pithy self: "[I]nevitably there are moments when you feel exasperated at the class’s failure to grasp some point you know you explained at length — then you realize that this was last year or the year before, and it was to a different group of people."

It is, however, unnatural for me (and, I suspect, other teachers) to repeat myself without being self-conscious about it. It smacks of absent-minded-professor-ness. This carries over especially into our writing, where we not only know that we have written something already, but we can even point to it: "If you want to know my views on this issue, there they are." There are even professional standards regulating the republishing of the same work. The usual expectation for scholars is that we should "contribute to knowledge," which means that we write an article that advances the intellectual conversation, it is published, and then we move onto other questions -- often in the same line of thinking, but never merely repeating ourselves. (Even in legal academic writing, which notoriously involves lengthy regurgitations of the extant literature, each article is expected ultimately to say something new.) Once a point has been made once, it need not be made again.

I think many scholars also wish to avoid repetition because we view ourselves as engaged in a job that counts as "higher level," in some meaningful sense. We understand that bus drivers do the same thing every day, that janitors clean the same spaces every day, and that even the skilled trades (masonry, carpentry, etc.) involve a great deal of sameness. What we usually forget, I think, is that nearly every job becomes routine. Even the "creative professions," like acting and directing in films and television, involve constant readings, re-shooting of scenes, etc. Stage actors do exactly the same thing eight times a week, when they are lucky enough to be paid to do anything at all. Ditto for musicians. Medical doctors, especially in the age of specialization, see dozens of patients presenting eerily similar symptoms (with occasional exceptions), day after day after day. There is nothing unusual about "smart people" or "creative types" engaging in repetitious behavior for pay. Yet the desire to be fresh, and to convince oneself that one is not in a rut, is palpable among scholars.

This concern most definitely carries over to my attitude about blogging. At least of the type that Professor Dorf and I engage in here on Dorf on Law, however, blogging is a unique form of teaching: engaging in policy analysis, explaining it to a sophisticated lay-ish audience, and doing so in something close to real time. Krugman's point above -- that a professor needs to remember that this is a new semester, and that the current crop of students was not there to hear what the professor said at an earlier date -- is made more complicated in the blogosphere, because the flow of people into and out of one's audience is both continuous and essentially invisible. There is always a combination of new and old readers, making it difficult to know when and how completely to repeat oneself.

This would not be as big a problem, of course, if the policy and political debates in the U.S. had not taken on a Groundhog Day-like quality over the last few years. One could, I suppose, respond to this in academic fashion: "I wrote about that in 2009. See cite." For various reasons, however, policy analysis must be "new," even when it is merely reheated from earlier writing. New readers and old ones reasonably want to know what the blogger thinks now, because as much as things might stay the same, circumstances are always slightly different, and those differences might call for slightly different conclusions. If the conclusions are the same, that itself is worth explaining.

On the big questions about which I write so often, Krugman has recently described the blogger as being afflicted with "The Curse of EconoSisyphus," or (leaning on an unpleasant image) "beating a dead horse." And indeed, as is clear to anyone who (like me) reads Krugman's columns and blogs regularly, he not only repeats himself, but he pretty much covers the territory of macroeconomics with both intellectual depth and rhetorical verve. If he feels like he is repeating himself, then how do the rest of us feel?

Often, I find myself having just finished a blog post on a Friday, at which point I open the NYT op-ed page to find that Krugman has made essentially the same arguments that I have. This is actually unsurprising, because we are responding to the same political conversation, relying on the same evidence, and applying our common understanding of Keynesian economics to current issues. Even in cases where I can point to one of my posts having an earlier publication date (or minute) than one of his, that does not always mean that I might not have learned from Krugman's writing, because he often previews arguments in his NYT columns on his blog. If it were necessary to prove that I "got there first," then it would be a complicated forensic exercise, indeed.

Krugman, of course, admits -- in fact, he makes a big point of the fact -- that even he is not doing anything special or new. Textbook Keynesianism has worked marvelously well in understanding the Great Recession and its aftermath, and Keynes's latter-day opponents have repeatedly embarrassed themselves. Krugman has the biggest platform of any economist on the planet, and he uses it well. But he is almost never applying cutting-edge economic theory (which, to be clear, is all to often obscure and pointless) to the issues of the day. It is usually just a matter of applying a very well-developed model to the latest data.

I am hardly the only one making many of the points that Krugman has been making. Brad DeLong, Mike Konczal, Martin Wolf, and many others could each be told: "Hey, Krugman already said that." We are all, however, engaged in an activity that is all about repetition. In fact, one of the claims to which Krugman has had to respond recently is that "No one listens to Krugman anymore," i.e., that he is a lonely crank. Of course, nothing could be further from the truth; but if other Keynesians were to say, "Look, Krugman's got the loudest megaphone in the world, so we can move onto other things," then there would be no evidence that other economists and commentators are reaching similar conclusions.

So part of what I am doing on this blog and on Verdict is to affirm that there really is a group of economists out here who understand that austerity is crazy, and that needless suffering is being visited upon millions of people in the U.S. and around the world, because too many people are willing to ignore decades of accumulated economic knowledge. There is also, of course, some non-overlap of audiences, so that as a group we are covering the terrain more broadly than even an NYT columnist otherwise would.

In addition, there are some cases in which the intramural disagreements are especially interesting. I thought, for example, that Krugman was out of his mind in January, when he was enthusiastically advocating the "big coin gambit," urging President Obama to order the Treasury to mint trillion dollar platinum coins. He was wrong, in part, because he is not trained in law. But seeing why he was wrong was part of what made the whole debate perversely fascinating. I and others also disagree with Krugman about the connection between inequality and stagnation, which also leads to a healthy ongoing discussion.

In addition, each of us (Krugman, DeLong, et al., as well as me) has a slightly different set of interests. In addition to criticizing fiscal austerity, for example, I tend to write more often (and more emphatically) about Social Security. (Obviously, no other Keynesian writes annual posts about being a vegan, as I do.) As a critic of mainstream economists, I also bring a more jaded view to the state of the academy in economics.

One of my favorite topics, with which Krugman is most likely sympathetic (although he has not written much about it), is capital budgeting. I have been writing about that at least since I wrote the first draft of the first chapter of my Ph.D. dissertation, decades ago. I published an article in 2011 in Virginia Tax Review (downloadable here) in which I advocated that the federal government adopt a system of capital budgeting -- having the government separate its spending on long-term investments in future economic growth from its other expenditures, so that it can borrow to finance the long-term investments and balance the remainder of the budget, in what macroeconomists (even non-Keynesians) call "The Golden Rule" -- and I described an administrative structure to discipline that system.

Similarly, after Hurricane Sandy hit last Fall, I wrote both Verdict and Dorf on Law pieces describing the public investment that should have been our natural response to that disaster. In late March of this year, I further argued in a Verdict column that public investment should be treated like business investment, for similar reasons.

Even with all of that, however, I admit to being stunned recently when a commenter on this blog claimed that "nobody" advocates doing government accounting like business accounting. In my mind, that was something like going on Prince's Facebook page and saying that nobody writes songs with sexual content, or saying that Jon Stewart should try using sarcastic humor sometime. If anything, I have often felt hesitant to go back to the capital budgeting well. This is why I so often precede such arguments with, "As regular readers of this blog know all to well," and similarly self-conscious stipulations.

All of which tells me that there is still much to be written, even on the most familiar topics. Austerity is still a terrible idea, and it needs to be said again and again. The long-term budget picture is still entirely driven by health care costs, and nothing else matters. Social Security is still either not in trouble at all, or fixing it is very simple analytically and economically. Future generations are still going to be harmed, not helped, by Republicans' plans to "prevent debt from being piled on our children and grandchildren." Too many economists still think that they can "commit politics" without really having a clue what they are talking about. Obama is still not being dragged to the center-right on economic policy, because that is where he has always been (and wanted to be).

And veganism can still be independently justified on the grounds of ethics, environmental justice, economics, and personal and public health.

When reason or evidence call for revisiting those conclusions, I will do so. In the meantime, with occasional forays into other interesting topics that arise from time to time, I will be a bit less self-conscious about repeating the classics. My thanks to all regular readers for their patience.

The Role of Consent in Defining Rape

noreply@blogger.com (Sherry F. Colb) — Wed, 01 May 2013 11:30:00 +0000

By Sherry Colb

In my Verdict column for this week, I discuss a California bill that would classify it as rape when a defendant obtains sexual consent by impersonating his target's intended sexual partner. As I explain, this bill is a response to a case, People v. Morales, in which the prosecutor argued to the jury that it could convict the defendant if it found that he had impersonated the victim's boyfriend. As it turns out, California law (currently) classifies consent-by-impersonation as rape only in the event that the defendant was impersonating the victim's husband. In my column, I examine the historical line between marital rape and other forms of rape as well as the difference between "rape by deception" and "rape by impersonation."

In this post, I want to respond in an admittedly very brief and incomplete way to an argument made by Professor Jed Rubenfeld in an article to be published in the Yale Law Journal, entitled The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy. In this article, Rubenfeld argues persuasively that "rape by deception" should not be classified as rape at all. He suggests that what makes it wrong to lie to obtain a person's consent to sex is more in the nature of "fraud" than of the violent subjugation that defines the outrageous offense of rape. I agree with this assessment and have said as much in a discussion here.

I disagree with Rubenfeld, however, in his further argument that "rape by deception" is truly of a piece with "rape by nonconsent." Rubenfeld argues that if one really needs to get "consent" before engaging in sexual intercourse, then it follows that the consent must be premised on materially accurate information. Stated differently, if we believe that consent on the basis of false information does not qualify the sex that occurs as rape, then it follows that we ought to believe that nonconsent is itself insufficient to qualify a sex act as rape. After all, real consent -- in the context of a contractual business transaction -- must not be based on false representations by a party, so our accepting the permissibility of false representations betrays our view that consent is not really required to avoid the proper label of rape. It is violence, he suggests, not nonconsent, that defines the offense of rape.

Rubenfeld acknowledges that his claim is likely to encounter opposition. His argument and the counter-arguments, moreover, are far too complex (and, to give Rubenfeld his due, well reasoned and creative) to either summarize or fully address in a blog post. I will therefore offer a very incomplete and partial response, because I do feel that something needs to be said.

Rubenfeld proposes that to determine whether a woman consented requires us to peer into her mind and figure out whether she really wanted or really did not want to have sex. If he were right about this, then the consent determination would, as he argues, necessarily involve a scrutiny of the woman's sexual feelings and propensities, a situation in which the woman is "on trial." I would suggest, however, that requiring consent does not necessitate such scrutiny of the woman, because consent and desire are two distinct matters.

A person can consent to have sex without experiencing any desire for the sex (for example, in a case of prostitution or where one partner wants to express gratitude to the other and bestows sex as a kind of gift). Robin West wrote a fascinating article about the problem of unwanted sex, a problem that she notably distinguishes from nonconsensual sex but which she nonetheless sees as worthy of discussion. It is also the case that a person might feel sexual desire but decide not to consent (perhaps because the sex would betray an existing committed relationship). Though consent and desire undoubtedly overlap, they are not identical.

For this reason, if a woman says "no" or "stop," to a man, it really should not matter whether she actually wants or actually does not want to have sex with the man. By the same token, if a woman pushes a man away, it is legally irrelevant that in her mind, she was thinking that she would really like to have sex with the man. It must be up to the partners in sexual activity whether that activity occurs or not, and a choice to say no (or physically resist) must be honored, no matter what each individual is truly feeling in his or her mind. Likewise, if a person goes along with a sexual encounter but actually feels no desire and wishes the sex would not take place, the sex is not rape.

But why, asks Rubenfeld, can't a woman simply get up and leave the room if she does not want to have sex? Assuming that the man is not using force against her, isn't she amply capable of asserting her choice in the situation? The problem with these questions is that they assume that there is no implied threat in place. Rubenfeld acknowledges that if one partner threatens the other, then physical force is no longer necessary to define an act of sex as rape. He acknowledges further that a threat need not be explicit and thus arrives at an inquiry about whether a reasonable person in the alleged victim's situation would have feared violence.

But if that is the proper question, then it seems quite plausible to say that once a person has said "no" or "stop" and the other person has continued to initiate intercourse with the first person, there is an implicit threat in place: (1) your objections do not register with me; (2) I will continue doing what I'm doing no matter what you say; and (3) if you try to stop me more forcefully, I will still continue doing what I'm doing, even if violent force is required. In other words, the notion that "no means no" actually illuminates a power imbalance that commonly accompanies sexual encounters: one of the parties is physically stronger than the other and can therefore rely on that disparity of strength to deter physical resistance when verbal resistance is ignored. Rubenfeld acknowledges that this can happen and even that "most of the time, a force requirement will match up unproblematically with the view that sex in the face of a 'no' is rape." But he then gives as an example of where "no" does not (and should not) make it rape, the case of a woman whose door was unlocked and who was moaning "no" throughout the sex but could have and yet did not get up and leave the room: "The law does not empower women when it presumes them too weak to stand up and walk away through an unlocked door (in the absence of force or threat) if they don't want to have sex."

Ideally, I would like to live in the world as Rubenfeld envisions it, where women feel empowered to assert their wishes, particularly in the absence of an explicit threat of violence. In the real world, however, people who say "no" are not simply refusing to sign a contract (in which material misrepresentations would void consent just as effectively as if there were no signature at all). They are expressing opposition to having sex at the particular time with the particular person, an oral expression that accordingly requires no physical battle where one of the parties is likely to prevail over the other. Once verbal resistance is ignored, the remaining avenue of physical resistance may reasonably be understood as a potential provocation, even in the absence of any threat. In other words, if "threats" properly have the same impact as the actual use of force, as Rubenfeld concedes that they do and ought to, then an ignored expression of nonconsent ought to be understood as force and sexual aggression.

Guest Post by Eric Segall: The Real Reason So Many Law Professors Failed to Predict the Favorable Reception of the Commerce Clause Argument in the Health Care Case

noreply@blogger.com (Michael C. Dorf) — Tue, 30 Apr 2013 12:00:00 +0000

By Eric Segall

There has been a lot of talk on various blogs about David Hyman's forthcoming article detailing how many law professors and others wrongly predicted how the Court would decide the commerce clause issue in the ACA case. It is true that almost every law professor who decided to make a prediction about the case opined the Court would uphold the mandate under the combination of the commerce clause and the necessary and proper clause. And, as Professor Hyman points out, these predictions were uttered alongside high pitched and adamant statements about the frivolous nature of the arguments against the mandate. For what it is worth, and relevant to the thesis of this short piece, I argued both that the arguments against the mandate were frivolous, and that the Court might nevertheless strike it down. That I could be right on both points should not be surprising.

Professor Hyman’s article fails to dig deeply enough into the most obvious reason for the disconnect between the predictions and the result. Most predictions were based on the professors’ rational reviews of prior cases, history, constitutional text, and simple logic. After all, how can a 2000 page law comprehensively regulating a trillion dollar industry that affects every state not be a regulation of commerce among the states? If Congress can prohibit two people from growing pot that was never bought or sold and whose ingredients were wholly in-state, how could Congress not be able to regulate the national market of health insurance and health care. Unfortunately, none of that (logic, precedent, and text) has much to do with how the Court decides constitutional cases, especially the very important ones.

We live in a world where Justices Thomas and Scalia overturn affirmative action programs despite their oft-stated views on the importance of federalism and originalism, which should lead them to uphold those programs; in a world where the bizarre standing cases of Flast, Valley Forge, and Hein coexist peacefully despite Justice Scalia's clear and correct protestations that they can't; in a world where the Court is likely to apply heightened scrutiny to laws enacted pursuant to Congressional power to enforce the 14th and 15th Amendments, despite the fact that the Constitution expressly gives Congress the power to enforce those Amendments through "appropriate" legislation; in a world where the Court issued a paen to precedent in Casey even though in the same case it gutted a landmark decision (Roe) and overturned two others; and in a world where prior positive law such as text and precedent are frequently ignored by the Court. In this world why do law professors and knowledgeable pundits still think they can predict important cases by reviewing criteria the Court cares little about?

Chief Justice Roberts' relationship with Justice Kennedy and his ruminations about personal and professional legacies should have been discussed as frequently as Raich and Wickard when predicting what might happen in the ACA case. That is not to say that is how we should teach our students, or that knowing the language of how the Court explains constitutional law decisions is not important. But in predicting what the Court will do, the Justices' world views, personalities, political calculations, and relationships, are far more important than prior positive law. The only real news relating to all this and the ACA case is that this is news at all.

So Much For Sequester Leverage

noreply@blogger.com (Michael C. Dorf) — Mon, 29 Apr 2013 10:00:00 +0000

By Mike Dorf

As a professional who flies with some frequency for work and other reasons, I was relieved that Congress decided last week to reallocate FAA funds in such a way as to reduce the disruptive impact of the sequester on air travel. As a citizen and a Democrat, I was disappointed, though not really surprised, that once again the D's had lost a game of chicken with the R's.

The backstory should be familiar. Despite the right's mantra-like talking point in which President Obama owns the sequester, it was more or less a co-creation of the Republicans and Democrats in 2011. As part of that year's deal by which the Republicans agreed not to ruin the country's two-centuries-plus record of paying its debts, both sides agreed to the creation of the "Supercommittee," which would propose budget cuts and tax increases to cut the deficit. The sequester was part of what the academic literature calls a "penalty default"--an alternative so distasteful to all parties that it ensures that they will strike a deal that's not as bad.

And it is by now also familiar that the Democrats miscalculated in thinking that the sequester would give them at least as much leverage as it would give the Republicans. Whereas D's would be eager to avoid spending cuts to domestic social programs, it was thought, R's would be eager to avoid military cuts. What the D's had not realized was that many of the new breed of ideological Republicans are (to their credit) less committed to spending on national defense than are the older generation of Republicans. And so from the perspective of many libertarian congressional Republicans, the sequester has been win-win: Budget cuts they wanted for ideological reasons and an opportunity to use them politically as "owned" by the Democrats--even though any objective analysis would recognize that regardless of the precise sequence by which the sequester was proposed and accepted, it never would have been on the table were it not for the Republicans' willingness to hold the country's credit rating (and the global economy) hostage by threatening to refuse to raise the debt ceiling in 2011 (and subsequently).

There's another reason why the Democrats lost this latest round. They have been saying for months now that the sequester's cudgel approach is senseless, so when the Republicans came along and offered to retarget cuts in a way that would have obvious benefits for the public, the Democrats were left in the politically weak position of having to say the following: The FAA should have its funding restored but only as part of a package that restores funding to social programs that benefit poorer Americans. That may well be the political strategy, but you can't say that out loud or you sound like hostage takers. We will cause avoidable travel delays until the Republicans restore funding for Head Start. Seen in broader perspective, then, the Republicans had so out-maneuvered the Democrats that the Republican hostage-taking on the debt ceiling led to circumstances in which Democratic insistence on their own budget priorities looked like hostage taking. And so the Democrats caved.

There are two mysteries here, one concerning policy, the other concerning backbone. The policy mystery is why Democrats have accepted--indeed, affirmatively embraced--the whole framing of the underlying situation. Professor Buchanan is the macroeconomist on this blog, not I, but still, one doesn't need a Harvard PhD in macroeconomics to know that in a rational world, the right's program of austerity would have been countered by the left's alternative of fiscal stimulus. Instead, President Obama pivoted towards deficit reduction way too early, setting up a policy debate in which the two positions are the Republican cut-the-deficit-through-budget-cuts and the Democratic cut-the-deficit-through-budget-cuts-mixed-with-tax-increases. Neither position is especially popular but the choice is false. The great policy mystery is why no one in the Democratic Party has adopted the Buchanan/Krugman/Keynesian position, especially given how easy it should be to sell to the public. Yes, I understand why pundits who regard themselves as serious thinkers think that the way to show their nonpartisan seriousness is by promoting "tough choices" on spending and taxes, but I don't understand why more left-leaning politicians--or even centrists for that matter--don't simply start telling the American people that what they want to hear is actually true: For at least another few years, you don't have to choose between low taxes and social spending.

That's the policy mystery. There's also the backbone mystery: Why are Republicans more willing to stake out and stick with hardline positions than Democrats? It's tempting to think that this is simply a matter of personalities. For over two decades, the most successful Democratic Presidents--Bill Clinton and Barack Obama--happened to be centrist compromisers. Clinton wanted everyone to like him, whereas Obama appears to value compromise for its own sake. But maybe they're just outliers, a product of the tiny sample size.

I'm skeptical. It's not just the Democratic Presidents, after all. It's Congress too. Harry Reid got rolled on filibuster reform at the beginning of the current Senate session, and while it's possible he might have opposed real reform based on long-term institutional calculations, that may be part of the point. It's hard to imagine the modern Republican leadership caring much about such matters.

I realize that I don't have hard evidence for--or even a good measure of--the phenomenon I'm describing. But it certainly jibes with what I've casually observed, going back at least as far as the 2000 post-election fight in Florida, in which the Republicans committed hard fouls while the refs were looking the other way and the Democrats, instead of responding in kind, looked at those same refs in stunned disappointment like Tim Duncan, Rasheed Wallace or (for hoops fans of my generation) Danny Ainge after being whistled for a foul.

I also have the sense that the reluctance of Democrats to play political hardball is not universal and to the extent that it's true, is a relatively recent phenomenon. Certainly LBJ knew how to give as good as he (or anyone) got. And even today, there are Democrats who will fight. But the most notorious tough guy in the first Obama Administration--Rahm Emanuel--picked his toughest fight with the left wing of the Democratic Party.

So, where are the modern heirs to LBJ when it comes to tactics? I'm sure there are some still around but I want to float a hypothesis for why we're less likely to see this sort of thing from the core of the Democratic Party these days: the declining influence of labor unions has muted the portion of the Democratic constituency most likely to hang tough and drive a hard bargain. Labor is still a key constituency for Democrats at election time, but mostly because unions realize that the Republicans would be far worse, not because the Democrats actively promote much of an agenda favoring organized labor.

The foregoing hypothesis is hardly meant as an all-purpose explanation and it doesn't even quite work on its own terms. E.g., although LBJ had labor support as President, he had earlier supported Taft-Hartley and so was hardly labor's man. And it's not even clear that I've identified a real phenomenon or one that I've specified sufficiently to admit of falsification of my causal hypothesis or any other. Still, I put this out there for discussion.

Special Note for Dorf on Law's Email Subscribers

noreply@blogger.com (Neil H. Buchanan) — Sat, 27 Apr 2013 14:42:00 +0000

-- Posted by Neil H. Buchanan

Readers who receive daily emails from Dorf on Law did not receive an email this past Thursday containing my post, "A Non-Progressive Budget from the President, and the Answer to the Chicken-Egg Question." You can find that post at this link: http://www.dorfonlaw.org/2013/04/a-non-progressive-budget-from-president.html. My apologies for mistiming my post.

Buchanan: The Next Generation, and the Conservative Cloud

noreply@blogger.com (Neil H. Buchanan) — Fri, 26 Apr 2013 15:10:00 +0000

-- Posted by Neil H. Buchanan

Almost four years ago, I wrote a post here on Dorf on Law in which I noted that my nephew, Ross Buchanan, had just graduated from the College of Wooster in Ohio. In the time since then, he has been teaching high school, first in Seattle, and then for three years as a Fulbright Scholar in South Korea. Starting this Fall, he will be entering the Ph.D. program in History at the University of Texas in Austin. Ross was in middle school and then early high school in a suburb of Toledo when I was in law school, which is the time I came to know him best (because I lived nearby, in Ann Arbor); and it was easy to see even then that he was going to be an academic. He had a keen interest in public policy, and his insights into intellectual issues were truly precocious.

Meanwhile, last Friday, my Dorf on Law post discussed the especially odd thinking that appears to lie behind the gold buggery that has moved from the most extreme right wing of the Republican party into its mainstream. Conservatives for generations have mostly been big fans of monetarism, a policy that calls for minimalist monetary policy responses to economic crises (and no fiscal policy responses at all), which they like because it minimizes Big Government and purports to makes crises less necessary by following mechanical rules during good times. A gold standard has the supposed virtues of the mechanical rules, but without the ability to respond to even the most extreme economic crises. (As a matter of reality, of course, a gold standard is no more bound by its rules than is any other monetary system. Congress -- or the Guardians of the Gold, or someone -- would retain the ability to change the ratio of gold to paper/electronic dollars. The only way around this would be to require that all transactions be carried out in actual gold. But why let reality intrude upon a good story?)

In that post, I argued that conservatives' abandonment of monetarism was similar to their attacks on the New Deal and the Civil Rights movement, because in all of these cases they rebel against even the most minimal attempts to save the United States from its worst excesses (economic and social). Professor Robert Hockett's recent Dorf on Law post seemed to offer the best explanation for this phenomenon: Movement conservatives have been increasingly grabbing onto magical ideas that promise to solve problems without human intervention. On the comments board for my post, Ross Buchanan offered the following extremely interesting observation (which he posted in two parts, and which I've lightly edited to re-post here):

Why is the right wing so passionately adopting such irrational and ultimately self-defeating causes, like abolishing the Federal Reserve? I suspect that we find such moves unfathomable because we—as outsiders—don’t understand the thinking of the right wing.

To anyone not in the camp of the modern right wing, it would seem natural to judge any given policy based on its projected impact. (For instance, a world in which an amoral plutocrat supports a regressive tax code and someone who cares about the poor supports a progressive tax code makes sense to us outsiders, regardless of where any one of us stands on that issue). From such a results-based perspective, goals like adopting the gold standard are truly inscrutable.

But perhaps the modern right's complete rejection of monetarism—as well as many other instances of extreme (and often erratic) shifts in right wing thought—has little to do with actual monetary policy, policy more generally, or its results.

I suspect that these shifts have more to do with a growing unwillingness by the right wing to trust the judgment of any person not deemed to be from its camp. Thus, the “anti-judgment” bias discussed in the post is really a bias against the judgment of all those not identified with the conservative movement.

This "anti-judgment-of-non-conservatives" bias would help to explain the discrepancies between prominent conservatives calling for specific policies in the past and then opposing those very same policies once Obama and Congressional Democrats championed (or at least accepted) them. (Examples include Newt Gingrich on health care, and Wayne LaPierre on gun control). It would also account for why so many of the self-described libertarians on the right were silent during George W Bush's presidency of big government and irresponsible spending (including rank and file members who didn’t benefit from his regressive economic policies).

In an unusual sense, identity politics now defines the right wing. The merits or goals of any given policy are secondary to the political identity of the people supporting it.

The ‘anti-judgment-of-non-conservatives’ bias may now be coinciding with a more general anti-judgment bias simply because the right wing no longer thinks it can muster a governing majority.

Basically, I don’t think most conservatives have a philosophical problem with governing institutions, so long as they control them; I suspect that even a lot of the anti-tax crusaders would be okay with the IRS if tax policies were regressive enough.

But as the conservative coalition continues to shrink and national elections become ever harder for conservatives to win, the right wing is becoming increasingly fearful of institutions it cannot control.

Destroying governing institutions would seem to be preferable to letting them fall into the hands of the enemy.

I find this to be an extremely promising explanation for much of what we are seeing. The most crude form of the phenomenon that Buchanan describes is the Right's now-long-gone romance with term limits -- a "commitment" that was so crude and transparent that I doubt anyone even at the time expected it to survive Republicans' retaking Congress. But even on policy matters, I think Buchanan is surely right that this is a matter of, to twist the old phrase, movement conservatives now favoring a "government of men, not laws."

Certainly, the Reagan and Bush II administrations were largely committed to subverting the executive branch, by putting people in charge of various agencies who were deeply committed either to eliminating the agencies altogether, or to neutering the agencies to prevent them from carrying out their statutory missions. Putting Clarence Thomas in charge of the Equal Employment Opportunity Commission was exquisitely disgusting, as was the parade of anti-environmental appointees to the EPA and the Department of the Interior.

There were also plain old hacks put in charge of Transportation and HUD, who mostly used the agencies for venal purposes, but the larger point in all of these appointments was to take control of the agencies away not only from the political appointees that previous Democratic Presidents had put in place, but from the career civil servants who actually follow the law in carrying out their duties. A Treasury official told me once that a Reagan appointee actually held "re-education seminars" in which he required senior nonpolitical staff economists to listen to him explain the wonders of Supply Side economics. That was silly and ineffective, of course, but the point was that the agencies were the enemy of the conservative movement, in exactly the way that Buchanan's argument above identifies: The question is whether you can trust the people in charge of the government entity.

Buchanan's hypothesis, however, makes it even more important to solve another mystery that has been stumping me recently. Last month, I wrote two Dorf on Law posts (here and here) in which I tried to figure out what Republicans are talking about when they say that they refuse to "compromise their principles" even after a bitter electoral defeat. The problem is that none of the principles that they so loudly proclaim seem to be immutable, except perhaps for a deep commitment to reducing/eliminating taxes for the rich. In the end, I found myself concluding that their only principle seemed to be pure partisanship. They oppose Obama and the Democrats simply because of partisan bile.

Taking Buchanan's argument seriously, however, means asking how one becomes one of the trusted people in whom other conservatives are willing to vest power. We know how they treat outsiders, but how do insiders become insiders? And perhaps an even more interesting question is how insiders become outsiders. Consider the response to Newt Gingrich during last year's Presidential primaries, when he referred (accurately) to Paul Ryan's economic policies as "social engineering."

Gingrich was demonstrating his commitment to a principle -- laissez-faire economic and social policy -- and was trying to say that a fellow conservative was betraying that principle. The response was, I am sure, shocking to Gingrich. Suddenly, he was the outsider being savaged by the venomous attack machine that he had done so much to assemble. Movement conservatives forced him to back down in humiliating fashion, making it clear that he was no longer trusted to do what must be done.

Again, however, what exactly is it that must be done, and how does that change over time? An "It's not what, it's who" explanation loses its traction, I think, when we see prominent arch-right conservatives scramble to stay in the good graces of what one might call the "Conservative Cloud." Even House Majority Leader Eric Cantor, who was one of the people whose views and actions led me to say that the modern conservative movement is led by sociopaths, is now reportedly in the crosshairs of "true" conservatives for various deviations from the invisible playbook. Orrin Hatch had to scramble to his right to save his Senate seat in Utah last year!

I do think that Buchanan's explanation carries a lot of weight. The "anti-judgment bias" on the Right really does look like an insider/outsider problem, although I would not have seen that without Buchanan's help. Even so, the content of the insider group is clearly based on fealty to ideological commitments that are anything but random, but that continue to defy explanation.

But hey, my nephew is only 25 years old! Maybe after his first year of graduate school, he will solve this and many other questions that have puzzled me for years.

A Non-Progressive Budget from the President, and the Answer to the Chicken-Egg Question

noreply@blogger.com (Neil H. Buchanan) — Thu, 25 Apr 2013 15:42:00 +0000

-- Posted by Neil H. Buchanan

In my new Verdict column today, I discuss the budget proposal that President Obama announced two weeks ago. Regular readers of Dorf on Law know that I have long since given up on the idea that the President is progressive economically, and this budget offers strong evidence to reinforce that conclusion.

Readers who think that I have been unfair to Obama-the-liberal for lo these many years will be pleased to see that I explicitly distinguish Obama's economic views from his other policy views. I begin the column with a comment about his views on gun control, which have moved from standard-for-Obama cautious noncommitment (parroting right-wing talking points regarding the Second Amendment, but passively favoring some controls) to full-throated support for as much regulation as could be hoped for. (If anything, he surprised me by being willing to support liberal outcomes that were politically difficult.) Sandy Hook obviously changed him.

I did not mention other domestic non-economic issues, but one can see similar patterns across the board: Obama appears to believe in liberal goals (or, at least, is openly skeptical of conservative dogma), but his degree of commitment to any particular issue is limited by his extremely cautious brand of politics. He was supportive, but passive, about gay rights during his first term, putting very little effort into major issues until the late push to eliminate don't-ask-don't-tell; but then he evolved quickly (although clearly as a follower, not a leader) on gay marriage. On the environment, his mixed record is reasonably progressive. He is probably the worst on labor issues, putting virtually no emphasis on organized labor's most important priorities (card check), although he did propose an increase in the minimum wage (with no follow-up thus far).

So, on noneconomic domestic issues, Obama has to be viewed as a B or B+ student, often falling short, but trying in varying degrees to follow paths that his supporters would have expected. On foreign policy, of course, it is an entirely different story. That, however, is too far afield for this post.

It is on domestic economic issues that I have been most critical of the President, and the budget proposal really does validate that criticism. Naturally, however, the President has backers among the supposedly-liberal commentariat. Those pundits' reaction to the budget proposal was rather striking, in two ways.

The first reaction goes like this: "This is not a serious budget proposal, because everyone knows the Republicans will never agree to anything. So, Obama did himself a world of good by showing that he is willing to withstand the anger of his liberal base, by proposing an austerity budget that takes a big hack at Social Security. Everyone will now understand that Obama is seriously interested in governing, and Republicans aren't." What this really boils down to is captured best by a turn of phrase coined several years ago by Rachel Maddow: Obama is adopting "the kick-a-hippie strategy." To look good in the eyes of self-styled centrist pundits, Obama deliberately goes after those out-of-touch lefties who can't be trusted, anyway. Who cares that they elected him (twice)? What matters now is showing that he is serious!

Paul Krugman probably puts it best when he asks what, exactly, is the point of appealing to those tut-tutting centrists. There is nothing ultimately to be gained for Obama, because the self-styled reasonable pundits will always figure out a way to blame Obama in equal measure, no matter what his opponents do. (And the pundits will add insult to injury, by saying that Obama bears extra blame for failing to be "a leader." Whatever that means.)

As I suggest in my column, the most frustrating aspect of this is that Obama -- if he actually were a liberal -- could have used the budget proposal to lay out exactly what a progressive government would look like. Republicans, year after year, have gladly signed onto the dystopian nightmare budgets that come out of Paul Ryan's overrated brain. We have a very good idea what they want -- and they enthusiastically tell us, even though they know they are voting for "unrealistic" budgets -- but we have very little idea what Obama-the-supposed-liberal really wants.

And that leads us to the second reaction from the liberal-ish pundits. Rather than concluding, as I have, that Obama fails to propose progressive economic policies because he is really not a progressive, some liberal pundits have decided to define liberalism down to whatever Obama proposes. That is, they reject the premise that he is failing to propose liberal policies in the first place.

As I point out in the latter part of today's Verdict column, this is just an old trick that could make almost any politician look progressive. For example, the very conservative politicians who have been proposing flat taxes almost always include in their proposals a large exemption, whereby a family can exclude the first $X of wage income from tax. (All investment income would, of course, be exempt from tax. That is one of the most important conservative goals!) These politicians then tell us that the system is progressive, because the poorest people would pay no taxes, and average tax rates would rise as wage income rises (even though the marginal tax rate is flat).

It is a neat rhetorical trick, but it only works if one uses an absolute definition of "progressive," rather than a relative one. Compared to the current tax system, every flat tax system proposal that I have seen would be a profoundly regressive move. Similarly, even though there are items in Obama's budget that can be called progressive -- and even setting aside just how hard he would fight for those items, when push comes to shove -- that does not make the budget progressive in a meaningful sense. (And he also makes gratuitiously regressive proposals as well. Several years ago, he proposed -- not just agreed to under duress, but proposed -- the elimination of low-income heating assistance, to show that he is willing to make "tough choices.") This year, his overall proposal amounts to an austerity budget. It is better than they are doing in the U.K. and most of Europe, but that is hardly a defense.

But, one may argue, what choice does Obama have? His economists have been telling him that there is no alternative to austerity. Obama could not have known that the Reinhart-Rogoff paper, for example, was flawed (although, as I pointed out last week, it was obvious long before the coding errors were discovered in that paper that its methodology was deeply problematic). He might not be proposing the budget that LBJ -- or even Richard Nixon -- would have proposed, but times have changed, and economists really do not support a progressive economic policy.

Support for that argument was apparent in a column in yesterday's New York Times, in which economic columnist Eduardo Porter reported on a recent conference of big-name economists, who all seemed to be saying that the profession has no clue what to do now. And he certainly has some quotes to that effect from highly respected economists. As the column proceeded, however, it became almost poignant to notice how hard Porter and his interviewees were trying to avoid mentioning the elephant in the room -- simple, short-term Keynesian economics. It was as if everyone was saying, "We don't have any policies to propose. Well, except for the policies that everyone knows about, but we have all decided not to talk about them. Because, you know, we have all decided not to talk about them."

Why would everyone agree not to talk about a policy agenda that they all know is out there, and that has been overwhelmingly validated by events of the past few years? Because they know that politicians do not want to hear about that. As much as we think that politicians listen to economists, the fact is that economists trim their sails and change their emphases in anticipation of the perceived desires of their political patrons.

I recall having a conversation in 1993 with a prominent economist whose closest colleagues regularly passed through the revolving door to Democratic policy circles in D.C. At the time, the big stupid policy obsession was a proposed balanced budget amendment. (Nothing ever changes.) I said to this economist, "That is a terrible idea, and everyone knows it. Why don't your colleagues say so?" His reply: "Well, Democrats need a response to the Ross Perot phenomenon. Left-leaning economists don't want to say things that make life politically difficult for Democrats." (Note for younger readers: Perot's 1992 independent presidential candidacy was a proto-Tea Party uprising that scared the political establishment to its core.)

I guarantee you that, if President Obama wanted to take a different tack on economic policy -- an actually progressive tack -- he would have prominent economists lined up behind him. I am not just talking about the few true lefties who have not been driven out of economics departments. The same economists who are now hedging and saying that Obama is wise to be cautious could -- and would -- easily adjust their message, not just lauding him for being willing to propose a real alternative to austerity, but pointing out that the extant economic research overwhelmingly supports that alternative.

Therefore, even though Obama's defenders would have us believe that the problem is that economists are not willing to back expansionary policies, the problem is really that everyone knows that Obama does not want to hear any of that. He signaled his true intentions from the word go in 2008, when he went with the Clinton-era Rubin-Summers economics team that gave us Tim Geithner as Treasury Secretary. Obama occasionally talks about economics in ways that sound progressive, but the reality is that he is willingly moving the country in the wrong direction. I give him credit for doing so more slowly than Republicans would have preferred, but that is faint praise indeed.

Foreigners Suing Foreigners for Foreign Conduct: Remaining Loopholes

noreply@blogger.com (Michael C. Dorf) — Wed, 24 Apr 2013 11:20:00 +0000

By Mike Dorf

My latest Verdict column discusses last week's SCOTUS ruling in Kiobel v. Royal Dutch Petroleum. I argue in the column that notwithstanding the Court's seemingly sweeping rejection of extraterritorial application of the Alien Tort Statute (ATS), in light of Justice Kennedy's concurrence, the actual holding may not be that far from the test proposed by Justice Breyer for the more liberal wing of the Court: namely, that foreigners may sue based on conduct occurring in the territory of another sovereign where the case sufficiently touches on U.S. interests.

Other commentators have noted further wrinkles. For example Tom Lee suggests that even after Kiobel, treaties that are not self-executing may nonetheless be deemed to provide the basis for causes of action under the ATS. And, as I note in the column, commentators (including Tom) also suggests that failed states (like Somalia) could be treated as lacking a sovereign, and thus more akin to the high seas than to the territory of a foreign sovereign. If so, allowing ATS claims could be analogized to allowing ATS claims against pirates. (This point was also made to me in private by my colleague Jens Ohlin, before Tom's post appeared, so I didn't bother to credit either of them in the column. I'm crediting them both here.) Indeed, the analogy is arguably more than an analogy--as actual pirates sometimes operate out of failed states (such as Somalia).

Thus, the thrust of my column and some other commentary I've seen (also including this SCOTUSblog piece by attorney Anton Metlitsky) tend in the direction of saying that despite first impressions, Kiobel may not prove so ruinous for human rights litigation in the U.S. courts. There's yet another way in which that appears to be true: No Justice raised the Article III objection in any of the Kiobel opinions.

What Article III issue? As I noted in my preview post on the case, the first oral argument in Kiobel indicated that at least some Justices might use it as an opportunity to cut back on the power of U.S. courts to recognize international law as federal common law. That would present an Article III issue because, in order for a foreigner-versus-foreigner case to be in federal court, it must arise under federal law for purposes of Article III. The diversity of citizenship portion of Article III allows party-based cases between U.S. citizens and foreigners but not between two foreigners. Jurisdiction in such cases must be based on a federal question. But if customary international law (CIL) isn't federal common law (or incorporated by a treaty or a federal statute), then it isn't federal law at all, and thus there would be an Article III problem.

And as I noted in my preview post, there is a body of revisionist scholarship arguing that customary international law is not federal law. In a nutshell, the revisionists argue that in the 19th century, CIL was thought to be "general common law" not attributable to any sovereign; thus, when the Supreme Court in the Erie case did away with general common law, CIL was demoted to state law (at least in those states that incorporate CIL as part of their common law).

The idea that CIL could be state law but not federal law is deeply counter-intuitive, given federal supremacy on matters of foreign relations. And thus not surprisingly, there's a substantial body of scholarship contesting the revisionist view and contending that, notwithstanding Erie, CIL is indeed federal law (at least absent a contrary statute or treaty). The SCOTUS has not definitively weighed in on this controversy but in the academy, views on the subject tend to track ideological divisions and one would expect the same in the SCOTUS: Liberals take the traditional view that CIL is federal law; conservatives take the revisionist view that CIL can be state law but no more. This issue--like so many others--could well come down to Justice Kennedy, who would be likely pulled in competing directions. On the one hand, his internationalist bent would drive him towards the traditionalist view; on the other hand, his federalist bent would drive him towards the revisionist view.

There is a potential irony here. As Roger Alford notes in a recent blog post, following Kiobel, claims that once might have been brought under the ATS for violations of human rights will (or at least should) now be brought as ordinary tort cases in state courts. For such cases to succeed, it won't be necessary for plaintiffs to show that the particular state tort law incorporates CIL; it will only be necessary to show that under the applicable choice-of-law rules, the defendant committed a tort. And even that won't be hard because nearly all countries have something like a tort system that provides for civil liability in cases involving serious harm.

What about forum non conveniens--the discretionary doctrine that permits courts to dismiss cases based on lack of connections to the case? Alford says that "forum non conveniens does not have the same force or favor in state courts as in federal courts," but that may be an overstatement. Consider Kiobel, which was brought in the federal district court for the Southern District of NY. Suppose it had been brought instead as a state tort suit in the state court across the street. Then NY's forum non conveniens statute would apply, and it's not so forgiving. In the leading case, the NY Court of Appeals affirmed a FNC dismissal as within the discretion of the trial judge, even though there was no alternative forum. So it's possible that going to state court won't be a good option, at least for some states. But Alford is broadly right about FNC nonetheless, because even though particular states (like NY) may enforce FNC as strictly as the federal courts, other states will not, and so the good plaintiff's lawyer will simply shop for the right forum.

In the end, the biggest obstacle to tort suits may be personal jurisdiction. Individual human rights abusers will avoid the relevant fora. Corporate presence might be enough to get around that problem--and in state tort litigation, unlike ATS litigation, it's clear that there can be corporate liability. But proving sufficient corporate presence to establish personal jurisdiction may be difficult because the Supreme Court may be about to close that door. On Monday the Court granted cert in a case presenting the question of when a foreign company's subsidiary's contacts with a state may be the basis for the assertion of general (personal) jurisdiction over the parent company for alleged human rights abuses by another sub outside of the country. The fact that Judge Reinhardt (aka Chief Justice of the Warren Court in Exile) wrote the opinion finding personal jurisdiction is a pretty good predictor that the Supreme Court plans to reverse.

Another Way to Read the FBI Memo Re Public Safety

noreply@blogger.com (Michael C. Dorf) — Tue, 23 Apr 2013 16:44:00 +0000

By Mike Dorf

In my first post yesterday I said that the 2010 FBI memo argued that in terrorism cases the "public safety" exception to Miranda may be broader than in regular criminal cases. I then went on to note how some of the factors at play in the regular public safety case suggest a narrower, not broader, public safety exception. In response to my post, I received a couple of suggestions from readers that I was misreading the FBI memo in its initial step and, upon reflection, I think these readers are probably right. That reassessment does not relate to most of what I wrote yesterday but in the interest of completeness, I thought it worth elaborating the point here.

Recall that the "money quote" I included in my blog post went like this:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.

Here's the alternative reading: The FBI was advising its agents that in exceptional cases they should continue to interrogate suspects without Mirandizing them, even though any statements thereby obtained would be outside of the public safety exception and therefore inadmissible in any eventual criminal trial of the suspect. Non-specialists might think that such further questioning would be unconstitutional under Miranda but that's not true. A footnote in the relevant paragraph of the FBI memo cites a line of Supreme Court cases that says that failure to Mirandize does not result in a Fifth Amendment violation unless and until the government introduces the resulting statements at trial. Accordingly, it appears that the FBI memo was saying that in exceptional cases, the government should bear the cost of "proceeding with unwarned interrogation" in the sense that it should forgo the possibility of using any statements produced as evidence at trial--instead using those statements to foil other plots or apprehend other suspects.

Of course, there are limits beyond which the FBI cannot go, nothwithstanding the foregoing analysis. Coercive interrogation that "shocks the conscience" would be a substantive due process violation at the moment it occurs, regardless of whether or not the government later attempts to use any resulting evidence at trial. I certainly don't read the FBI memo as advocating anything of that nature, however.