Dorf on Law

Spousal Activism

noreply@blogger.com (Michael C. Dorf) — Wed, 17 Mar 2010 07:54:00 +0000

A recent spate of articles (including this one) highlights the role that Virginia Thomas, wife of SCOTUS Justice Clarence Thomas, is playing as a leader of a "tea party." It's tempting to use this story as an occasion to take some shots at Justice Thomas and the right more broadly. E.g., I COULD ridicule the notion that President Obama is pursuing what Ms. Thomas calls a "hard-left agenda." If I were in such a mood, I might speculate as follows: Perhaps Ms. Thomas thinks Obama has such an agenda because he is following the lead of the old Soviet Union by escalating military operations in Afghanistan. But I'll resist the temptation.

Instead, I want to ask the core question raised here: What are the limits on political activities by the spouses of judges? As Ms. Thomas correctly notes, PA Governor Ed Rendell is obviously allowed to engage in political activity--all the time--notwithstanding his marriage to a federal appellate judge. Nor are such connections unique in the world of working couples. Ninth Circuit Judge Stephen Reinhardt (for whom I was a law clerk 20 years ago) is married to longtime Executive Director of the ACLU of Southern California, Ramona Ripston. These marriages lead to recusals in some cases, but in my view, it's almost silly to worry that they will otherwise lead to conflicts or the appearance of impropriety. As I said when I (somewhat weakly) defended Justice Scalia's non-recusal in the wake of his hunting expedition with then-VP Cheney, we have much less reason to worry that friends (or by extension, spouses) will whisper in the ears of judges and Justices than we have to worry that the judges and Justices have pre-formed ideological dispositions.

Does that mean that spouses of judges and Justices should feel free to do whatever they like in politics? Not necessarily. One concern arguably raised by the activities of Virginia Thomas but not those of Ed Rendell or Ramona Ripston is that Ms. Thomas may be exploiting her connection to a prominent jurist. Rendell and Ripston have power bases that are completely independent of their spouses. It's hard to say whether that is true of Ms. Thomas; certainly the attention that has focused on her tea party activity derives from her connection to her husband. Still, I would give her the benefit of the doubt. It's not at all clear that she invited the publicity of her tea party involvement. Nor am I aware that she has substantially benefited in her career from her husband's position: She has worked in positions of responsibility in conservative causes on the Hill over the last two decades, presumably because she is good at what she does. In any event, complete independence is not really the right benchmark. Hillary Clinton gained national prominence as a result of her husband's political accomplishments but as an elected and now an appointed official she has developed her own power base. If Dick Armey first heard of Virginia Thomas because she was married to Clarence Thomas, that doesn't taint her continued involvement in right-wing political causes.

In the end, what's troubling about Ms. Thomas's involvement in the tea party movement is what it may say about the extremity of her husband's views. To be sure, many spouses disagree about political issues. Mary Matalin and James Carville are only the most colorful. Still, there doesn't appear to be a lot of daylight between the world views of Virginia and Clarence Thomas. VT says she is a fan of Rush Limbaugh and "intrigued" by Glenn Beck. (Well, who isn't?) Meanwhile, in 1994 Justice Thomas presided at Limbaugh's third wedding ceremony, which was performed in the Thomas home. Is there anything unethical in any of that? No. Disturbing, sure, but not unethical.

Miranda and the Puzzle of Voluntariness

noreply@blogger.com (Sherry F. Colb) — Tue, 16 Mar 2010 06:59:00 +0000

By Sherry Colb

In my column for this week, I discuss the Supreme Court's recent decision in Florida v. Powell, which upheld the Tampa, Florida version of the Miranda warnings despite their lack of clarity on the suspect's right to have a lawyer with him while police are interrogating him. My column makes the claim that this lack of clarity is not unique to the Tampa warnings but in fact more broadly characterizes the warnings with which we have all become familiar and that at least federal courts of appeals have upheld. I suggest in the column that this vagueness is no accident but instead represents a compromise between two objectives: informing suspects of their rights in a way that mollifies our conscience while simultaneously permitting the police to obtain confessions from suspects who would be better off staying silent.

I want to suggest here that this tension is related to the slippery concept of "voluntariness" as we use it in the Fifth Amendment context. When we say that a statement must be "voluntary," we mean something more than that it cannot be the product of a reflex (which is how we characterize truly "involuntary" acts). No one contests, for example, that a confession fails the Fifth Amendment "voluntariness" test if police obtain it by threatening to kill the suspect if he doesn't talk. Despite the fact that he is making a choice to speak (and is therefore acting "voluntarily" in the literal sense), we consider the conditions under which he chooses to speak normatively unacceptable.

Beyond threats or violence, however, what ought to qualify as too much pressure? One possible answer that many find appealing is the notion that we may not apply the amount or type of pressure that would motivate an innocent person to give a false confession. One of the critiques of using torture in interrogations, after all, is that it generates inaccurate intelligence. To the extent that our concern is accuracy, we could judge the circumstances of confession by asking "Might an innocent person have said what the suspect said if faced with the pressure that faced the suspect?"

The Miranda warnings, of course, go further than the above test would go. They are, by design, a protection against suspects feeling like they have to tell the truth. That is, the warnings tell a suspect -- if he listens closely and follows what he is hearing -- that it is against his interest to speak (because statements he make will become evidence against him at trial) and that if he does not trust himself to stay silent, he can have an attorney with him to fortify his will. Plainly, the right against compelled self-incrimination, as envisioned in Miranda, is a right against accurate self-accusatory statements that respond to questions posed by police in the absence of any hint of violence or the threat of retaliation.

At the time that the Court decided Miranda, a majority of the Justices found offensive the sorts of tactics that work by relaxing the suspect into feeling that he is among friends. One such tactic is suggesting to the suspect that what he did is actually excusable. If a suspect were innocent of killing anyone, it is hard to imagine that such tactics would induce him to say "Actually, I did kill the victim, but I was very angry at him for insulting my mother." Justice Harlan's dissent in Miranda described it this way: "the thrust of the new rules is ... to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward 'voluntariness' in a utopian sense, or to view it from a different angle, voluntariness with a vengeance."

If we took such a voluntariness notion to its logical conclusion, we would simply prohibit police from asking questions of suspects in custody, outside the presence of counsel. If "voluntary" were interpreted to mean "spontaneous," for example, it is clear that custodial interrogation (no matter how helpful the warnings) causes the suspect to confess when he otherwise would not have done so.

Seen in this way, Miranda, however interpreted, is a necessary compromise between diametrically opposed positions along a continuum -- the view that voluntariness refers to any behavior that is chosen (even if the alternative is death), and the view that voluntariness requires a spontaneous choice by the suspect, uninfluenced by police questioning. Neither of these options is a neutral construction of either "voluntary" or of "not compelled," and we are therefore left -- perhaps ironically -- with the inescapable burden of choosing how much coercion is too much coercion to satisfy the Constitution.

Domesticating Assassination

noreply@blogger.com (Michael C. Dorf) — Mon, 15 Mar 2010 06:06:00 +0000

By Mike Dorf

A fascinating new article (to be published in the Minnesota Law Review) by my colleague (and my co-convener of the Cornell Constitutional Law & Theory Colloquium) Josh Chafetz propounds this provocative thesis: If you want to know whether a President is legitimately impeachable, ask whether, under classical theory, he would have been legitimately subject to assassination.

Much of the paper is a work of history, showing how a few paradigm cases--especially the assassinations of Julius Caesar and Charles I---would have necessarily informed the framers' thinking about what sorts of substantive behavior in a ruler constitute tyranny worthy of removal. Chafetz also explains, commonsensically enough, that the framers saw assassination as a procedurally defective mechanism. Another elegant part of the paper shows how John Wilkes Booth--son of Junius Brutus Booth, who was named for a classical assassin---was well aware of the classical standards for tyrannicide. Chafetz concludes (also sensibly) that Booth substantively misapplied those standards and, of course, acted illegitimately in assuming for himself the power to decide President Lincoln's fate.

Turning to examples of impeachments, Chafetz thinks that the Reconstruction Senate made the right call in not removing President Johnson, that Nixon was removable, and that Clinton was not. I agree with each of these assessments. As Chafetz puts it with respect to Clinton, under the classical standard, tyrants lost their lives for making too much of their office, but Clinton's tawdry behavior made it too little. In the words of his own critics, Clinton "diminished" the Presidency.

The illumination that Chafetz shines on the question of impeachability, and the inherently interesting nature of the thesis, make this paper well worth reading. Nonetheless, I think a puzzle remains about how to integrate the pre-Constitution traditions with the actual text adopted, which makes the President (and VP and other civil officers) impeachable for "treason, bribery, or other high crimes and misdemeanors." One who accepts bribes--imagine a President Blagojevich--hardly makes the office "too big." Yet he is plainly subject to impeachment and removal. And if one of the two express criteria for impeachment and removal is a crime of diminution of the office, it's not clear how much of the older tradition governing assassination was incorporated by the impeachment clause.

In the end, Chafetz would not much disagree. He is not offering a definitive guide for modern interpretation of the impeachment clause but instead some background that can aid in making sense of the provision. During the Clinton impeachment, the constitutional arguments of both sides about what comprises "other high crimes and misdemeanors" were largely self-serving. Should Congress some day have a serious debate about the subject, this historical context would be enlightening.

Ooops, I forgot my briefs.

noreply@blogger.com (Craig J. Albert) — Fri, 12 Mar 2010 18:04:00 +0000

By Craig Albert

A short note regarding a flap from yesterday. According to the NYT, Senator Kyl was shocked, shocked to learn that AG Holder had not listed in his pre-confirmation questionnaire his "signing" of a brief in the Padilla v Rumsfeld case. Putting aside the fact that Holder (along with Reno and 2 other former DOJ officials who were amici) didn't "sign" those amicus briefs (they were signed by the friendly lawyers at Arnold & Porter), it's hard to imagine that Kyl didn't know about Holder's status in the case, if he had been paying any attention at all. After all, Kyl was an amicus in Hamdan, so he was probably keeping abreast of the issues. The irony is that, as John Dean pointed out in a Findlaw column of a few years ago, Senator Kyl and Senator Graham fabricated a piece of legislative history specifically for the purpose of supporting their amicus position in Hamdan. It's hard to forget the novels that you write.

Congress Loves the IRS, and We Should, Too

noreply@blogger.com (Neil H. Buchanan) — Fri, 12 Mar 2010 11:50:00 +0000

-- Posted by Neil H. Buchanan

In my FindLaw column this week, "Is the IRS the Most Trustworthy Agency in the Country? Even Republicans Seem to Think So," I move from defense to offense in discussing the role in society of the IRS and its employees. Two weeks ago, in my FindLaw column and Dorf on Law post, I responded to the February 18 suicide attack on the IRS building in Austin by saying, in essence: "Why aren't we more shocked? The IRS is wrongly vilified, and its employees are unfairly demonized for political gain. They are good people who deserve better." This week, my counter-intuitive point is that we have strong evidence not only that the IRS is staffed with many of our best and most professional citizens, but Congress -- no matter which party or ideology is in charge -- relies on the high quality of our tax enforcers to carry out its policies.

I will return to that argument momentarily. First, however, I thought I would share a few interesting facts that I have learned in following this story. When the subject is politics in Texas, things are never boring.

News reports shortly after the terrorist attack focused on the leadership of Lloyd Doggett, a Democratic Congressman who was identified as representing Austin. I checked the map of Congressional districts in the area, and it turns out that Austin has been sliced into three parts, with the other sections represented in Congress by two Republicans, Lamar Smith and Michael McCaul. This configuration, in turn, was part of the result of the absurd mid-decade redistricting that was engineered by former House Majority Leader Tom Delay. If you want to see a gerrymandered map, you will love Texas's congressional districts.

The major target of that redistricting plan in Austin, in fact, was Rep. Doggett, who nonetheless won re-election. When Doggett spoke out publicly against the attack on the IRS building, he was joined only by McCaul, with their third colleague notably missing. It is difficult to decide which was more surprising -- that one Republican would allow himself to be seen saying something positive about anything IRS-related, or that another could not bring himself to join in condemning a murderous attack on IRS employees in his backyard.

Perhaps more interesting, when Rep. Doggett introduced a resolution in the House condemning the attack, it passed by a vote of 408-2. Again, do we focus on the 408 women and men who were willing to say "violence is bad," or the two men who could not bring themselves to do so? The resolution, "Expressing concern regarding the suicide plane attack on Internal Revenue Service employees in Austin, Texas," honors the man who was killed (Vernon Hunter, a 68-year-old career public servant and Vietnam veteran), the first responders, and "commends Internal Revenue Service employees for their dedication and public service."

That last item was too much for one Congressman (whom I will not bother to name), who decided that the wording of the resolution implies that the tax code is "moral" when it is not. Even more bizarrely, the other "no" vote came from a Congressman who decided that the phrase "suicide plane attack" was the first step on a slippery slope toward stricter regulations on private aircraft. (I am not making this up.) Not all of these guys are playing with a full deck.

More than the two strange "no" votes on a resolution that should have been completely uncontroversial, the bigger worry is that this attack has been minimized and nearly forgotten so quickly. In fairness, the muted response is probably driven in part by the good luck that the deranged attacker was not able to kill more people. Still, it is difficult not to sense that the target of the attack is just too politically unpopular for anyone to care about. Other than (some of) the local Congressmen, no one could be bothered to focus on this tragedy.

All of which brings me back to this week's FindLaw column. Economists have a term called "revealed preference." Because traditional economic theory relies so heavily on the concept of "utility functions," which are mathematical expressions of people's preferences and desires, it would be great if we could determine each person's utility function. The problem is, we know that people will often lie if we directly ask them questions like: "If I took away 10% of your income, how many movies would you attend in a year?" The desire to convince someone NOT to take away 10% of one's income will be a strong incentive to overstate one's likely response. Moreover, even if people would not lie, they might not know how they would respond.

Because of the unreliability of this type of information gathering, it is sometimes helpful to ignore people's stated preferences and look at their revealed preferences. Although the definition of revealed preference is quite technical, the intuition is obvious: No matter what people say they prefer, we can (with some important limitations) see what they prefer by what they do. As so often happens in economics, a lot of mathematical firepower has been trained on the wisdom that we can derive from an old saying, in this case: "Actions speak louder than words."

In this case, we have politicians talking endlessly about how much they do not like taxes and the IRS. Many politicians specifically target the IRS and its employees as arrogant, incompetent, and out of control. If they really meant that, then we should expect to see those politicians taking actions consistent with their stated views. Instead, we have the opposite: Whereas every tax preference in existence could be administered by non-tax agencies (Health and Human Services enforcing the rules on health savings accounts, for example), we have every member of Congress repeatedly and enthusiastically voting for "tax cuts" that create the need for the IRS to enforce and administer yet more social policy through the tax code.

There is a reason, for example, that it became necessary a few years ago for Congress to adopt a consistent definition of "child" for tax purposes. Because of the adoption of various kid-friendly tax credits over the years, there were five inconsistent and overlapping definitions of child in the tax code. If Congress wants to, for example, make it less expensive to purchase child care, it enacts a tax credit for that purpose. We still have many different ways that we subsidize child rearing through the tax code, but at least we now have a consistent definition. (Until the definition was clarified by Congress, of course, the IRS was blamed for the complexity of their rules.)

This revealed preference for using the IRS to administer social policy is not a choice made in a vacuum. Congress uses the Code because its members like to call things "tax cuts." Even so, we at least have evidence that Congress does not hate the IRS enough to give up on this political gravy train.

As I argue in my column, however, this reliance on the IRS is a good thing. It is true that we could put the different social programs in different boxes on the big organizational chart, but doing so would squander the professionalism and expertise that we have gathered in the Internal Revenue Service. This is affirmatively a good way to run social policy, not an unfortunate side effect of Congressional opportunism.

Red Baiting

noreply@blogger.com (Michael C. Dorf) — Thu, 11 Mar 2010 07:38:00 +0000

By Mike Dorf

It was refreshing to see that prominent conservative lawyers have condemned the effort by Liz Cheney's "Keep America Safe" to smear Justice Dep't lawyers who had previously represented Guantanamo Bay detainees as the "Al Qaeda Seven." As various lawyers quoted in the story noted, the legal system cannot function effectively without lawyers and there was nothing unpatriotic about the representation these lawyers formerly provided. Indeed, quite the opposite case can be made--that the lawyers who gave their time and risked their reputations did so precisely because they wanted to stop what they regarded as (and what the Supreme Court ultimately agreed was) the abandonment of cherished constitutional principles.

That said, and recognizing that Cheney's insinuations were outrageous, a prospective government lawyer's past representation of clients might raise real issues. Consider an analogy. Suppose that a President is trying to decide whom to name to run an important agency with regulatory authority over some industry and that one of the leading candidates has spent a substantial portion of her prior career working within that industry. On the one hand, this clearly has advantages; the work done within the industry gives the candidate knowledge of the business and connections that could facilitate her work for the Administration. On the other hand, even assuming that the candidate will sever ties to former firms and will work solely in the public interest, the past experience may lead the general public to worry that the candidate's world view will be too close to that of industry. Reasons of this sort are routinely advanced as objections to regulators chosen from the ranks of regulated industries.

Are lawyers very different? In part, yes. We have professional standards of zealous advocacy that make a lawyer's representation of a class of clients not especially informative of the lawyer's actual views on policy questions. We learn less about a lawyer's views on the wrongfulness of murder from the fact that he represents indigent capital defendants than we learn about a prospective regulator's views about the costs and benefits of pollution control from the fact that the prospective regulator formerly was an executive for an oil company with a history of regulatory violations. A lawyer's past jobs are a weak proxy for her present views, even with respect to the conduct of her past clients.

Federalist Society co-founder David McIntosh was thus expressing a partial truth when he asked (as quoted in the NY Times story): "Was the person acting merely as an attorney doing their best to represent a client’s case . . . or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?"

That question still doesn't drill deep enough, however, because much depends on the nature of the "political or personal agenda." Representation of Gitmo detainees based on a personal agenda to advance the cause of global jihad would be a very good basis to keep someone out of the Justice Department. However, an agenda to ensure that all persons held captive by the U.S. receive due process is perfectly compatible with later government service. Indeed, it should count as a qualification. What makes the Cheney hyperbole so preposterous is that the agenda at issue for each of the "Al Qaeda Seven" was so obviously of the latter, due process sort.

Republican Deficits and Budget Reconciliation

noreply@blogger.com (Bob Hockett) — Wed, 10 Mar 2010 06:57:00 +0000

By Robert Hockett

Now that it's virtually certain that comprehensive health insurance reform will be pursued at least in part through House-Senate budget reconciliation, the present affords an opportune moment to take stock of past resorts to that procedure. Happily, this past Sunday's NYT provides a helpful survey of the contents and fiscal magnitudes of all major reconciliation bills passed by Congress since the procedure's first use in 1980. All who take interest in the details will find the full article commesurately interesting. Here I shall simply draw out a few particularly intriguing highlights.

Of the 15 major reconciliation bills passed from 1981 to the present, 10 were passed when Republicans held at least two of the three active organs of federal government -- Senate, House, and White House. (I'll buy-in for present purposes to the traditional mythology pursuant to which the Supreme Court is characterized as 'passive.') The remaining 5 were passed when it was the Democrats who held at least two of the three active organs. So on the question of who makes most use of the procedure, it looks like the Republicans have it by a ratio of 2 to 1. Highlight number one.

Next, some DoL readers might be interested in the party-composition of the federal government, and especially of the Congress, on these past occasions of resort to reconciliation. At least this might be so insofar as resort to the procedure when different parties hold different organs of government could strike some as more endangering of 'minority rights' than resort to the procedure when one party holds all three organs, or at least both chambers of Congress. (I employ scare-quotes here simply because we're not talking about 'fundamental human rights,' after all, but putative rights of legislative minorities to obstruct even contitutionally permissible legislation by majorities -- even very large ones, like, say, 59-41.) Here, then, are a few highlights on that score:

Three of the Republicans' 10 reconciliation bills were passed when the GOP controlled all three active organs of federal government, and one of the 10 was passed when they held, so to speak, a bit more than '2.5' of them: that would be the 2001 tax cut legislation, more on which presently, which passed when the Senate was evenly divided and accordingly subject, in theory at least, to tie-breaking by the Vice President. (As it happens, the measure passed by 58 to 33 vote; but tie-breaking was required to pass its 2003 follow-up, also more on which presently.) The remaining 6 -- hence, 3/5 of total -- Republican uses of reconciliation occurred while the three active organs of federal government were divided between the parties -- in all but one of them, with the Republicans holding one chamber of Congress and the White House, while the Democrats held the other chamber of Congress. (I'll get to the counterpart Democrat stats below.)

As for Democratic resorts to reconciliation, well, since the Republicans account for 10 of the 15 uses, it is of course trivially true, under our (for the time being, anyway) de facto system of two party rule, that the Democrats account for the remaining 5. Of those five reconciliation bills passed while Democrats held at least two of the three active organs of the federal government, two were when they held all three such organs, the other three -- hence, as in the case of the Republicans, 3/5 of the total -- when they held both chambers of Congress but not the presidency. There might, then, in this connection, be some room for argument that the Democrats' (half as many) resorts to reconciliation were more majoritarian than were the (twice as many) Republican resorts, given the nay-saying power wielded by a veto-holding president; but I won't attempt to hang any hats on this interesting prospect at present.

On to highlight number three: At least as interesting as the two parties' comparative proportions of total resorts to reconciliation (again, that 2 to 1 ratio in favor of Republicans), I think, is what they have used reconciliation for. Consider first the matter of budgetary impact, a subject of considerable media hype these days:  Of all 15 uses of reconciliation, 3 have raised federal budget deficits, and all 3 were Republican uses. (Hence, again trivially but nevertheless significantly, 30% of Republcan resorts to reconciliation have been deficit-raising.) Two of these, moreover, each raised the federal deficit by much more than any other reconciliation acts save one -- one passed by Democrats -- have managed to lower it.

Largest among these Republican deficit-raising reconciliation acts was the 'Economic Growth and Tax Relief Reconciliation Act' of 2001. The effect of this legislation was to increase the federal deficit by over half a trillion dollars -- specifically, $552 billion -- over five years.

The second-largest deficit-growing impact came two years later with the Republicans' 'Jobs and Growth Tax Relief Reconciliation Act' of 2003, which increased the federal deficit by more than another third of a trillion -- specifically, $342.9 billion -- over five years. This one, moreover, required a tie-breaking vote in the Senate by Vice President Cheney -- of 'Reagan showed that deficits don't matter' fame -- to pass.

Finally, case three -- the Republicans' 'Tax Increase Prevention and Reconciliation Act' of 2005, which passed by a 54-44 vote in the Senate -- added another $70 billion to the federal deficit over 4 years.

All 5 Democratic resorts to reconciliation, by contrast to the Republican case, brought substantial decreases to the federal deficit. Of these, by far the largest was the 'Omnibus Budget Reconciliation Act' of 1993, which lowered the federal deficit by more than 2/5 of a trillion -- specifically, $433 billion -- over five years and ultimately passed, against stiff Republican opposition, by a vote of 51-50. (Yep, that means Al Gore can take credit for the largest reconciliation-wrought cut to the federal deficit rather as Dick Cheney can take credit for the second-largest reconciliation-wrought growth in the federal deficit.)

The Democrats also take the prize for the second-largest reconciliation-wrought cut to the federal deficit. That would be the 'Omnibus Budget Reconiciliation Act' of 1990, which trimmed $236 billion from the deficit over 5 years -- although in this case it bears noting that there was substantial moderate Republican support (remember moderate Republicans?) as well, including from then-President G. H. W. Bush, who was punished by his 'base' at the voting booths shortly thereafter.

All remaining uses of reconciliation, be they by Republicans or Democrats, involved smaller decreases to the federal deficit -- generally around $130 billion (Republicans in 1981 and 1982, Democrats in 1997) or less, usually much less.

A final point worth considering in respect of the contents of past reconciliation acts has to do with how 'purely fiscal' as distinguished from 'social-policy-oriented' they have been. This distinction is implicated, of course, any time somebody darkly hints or vaguely suggests that it is in some sense illicit to employ reconciliation as a means of passing social policy over the objections of recalcitrant minorities in the Senate.  Against this backdrop, what is perhaps most striking is how sweeping, in social policy terms and indeed even express aims, virtually all resorts to reconciliation since 1981 have been.  Nary a one seems to have neglected to make significant changes to AFDC, Medicare, Medicaid, CHIPs, and/or other social welfare and social insurance programs. And that is to say nothing of the overt social policy objectives typically sought through all major tax overhaul legislation.

What, then, to make of all this? Well, perhaps I am missing something, but against the backdrop just rehearsed, it is hard to see what would be so importantly different -- let alone 'illegitimate' or problematically 'minority-trampling' -- about using reconciliation to handle what ever small gaps remain between the House and Senate health insurance reform bills passed this past autumn and winter, respectively, by supermajorities. The subject programs, for one thing, look to be of the same sort as have been past such programs in all earlier reconciliation bills -- health insurance, after all, constituting one of the three classic forms of social insurance afforded in all polities with advanced economies (even our own, by and large!) since the time of Bismarck. The Democrats, for another thing, control both the White House and both chambers of Congress with huge majorities. And, finally, perhaps best of all in light of current business media chatter, the legislation now contemplated would constitute yet another case in which the Democrats maintain their track record of resorting to reconciliation not only just about twice as rarely as Republicans, but also only to lower, rather than as in the Republican case to raise, federal deficits.

(Not that there's anything wrong with that -- i.e., with well spent deficit moneys -- as Neil has forcefully shown in previous posts!)

Texts and Guns and Scalia and Posner

noreply@blogger.com (Michael C. Dorf) — Tue, 09 Mar 2010 11:32:00 +0000

By Mike Dorf

My latest FindLaw column unpacks a joke made by Justice Scalia during the oral argument last week in McDonald v. Chicago. Justice Scalia suggested that the lawyer arguing the case for incorporating the Second Amendment was making a tactical error by placing so much reliance on the 14th Amendment's Privileges or Immunities Clause, rather than its Due Process Clause. He joked that the lawyer appeared to be bucking for a position as a law professor.

In my column, I explain why Justice Scalia has the issue not just wrong but backwards: It's textualists like him that have led lawyers (and some academics) to argue that the work of incorporation of the Bill of Rights should be shifted from the Due Process Clause to the Privileges or Immunities Clause. Academics tend to be much more legal realist about such matters. Speaking for myself, it's hard to imagine that constitutional law would look very different if the Supreme Court had incorporated the Bill of Rights via P or I rather than DP. Perhaps there would have been some differences regarding the rights of non-citizens (because P or I protects "citizens" while DP protects "persons"), but even there, one can well imagine the Court having glossed the text to reach the results that seemed sensible. After all, everyone on the Court now accepts that the equal protection clause applicable to the federal government has the same content as the equal protection clause applicable to the states--despite the fact that there is no equal protection clause applicable to the federal government. Yet you don't hear any textualists calling for the overruling of Bolling v. Sharpe--partly because that case, which "reverse incorporates" the equal protection clause, is what allows Justice Scalia et al to invalidate federal affirmative action programs.

My column recounts a bit of the recent history of judicial complaints about the legal academy. Mostly those complaints amount to the charge that legal academic literature is impractical, overly theoretical, esoteric, and incompetently inter-disciplinary. I offer a partial defense which I won't rehearse here. Instead, I want to surface an issue raised by one judicial critic whose critique points in a different direction.

Most of the judges who complain about the impracticality of legal scholarship contend that it does not offer sufficient guidance to the sorts of doctrinal questions they face. Theirs is a narrative of decline: In the good old days, prominent law professors wrote treatises collecting and distilling judicial opinions into decision rules; that sort of thing was helpful in deciding new cases; but since the academy stopped rewarding treatise writers, legal academics have ventured off in other, less helpful directions.

Judge Posner says almost the exact opposite. Consider his critique of University of Chicago Law Professor David Strauss's treatment of the DeShaney case--in which the Supreme Court found no constitutional violation when a state social services agency failed to intervene to protect a small child against repeated (and repeatedly reported) beatings by his father. Strauss criticized the decision but Posner thought Strauss paid insufficient attention to the damned-if-you-do-damned-if-you-don't quality of the dilemma faced by social workers trying to decide whether to remove custody. More than that, Posner faulted Strauss for armchair philosophizing rather than empirical investigation. Posner wrote (on pages 209-10 of Overcoming Law):

the University of Chicago Law School, where Strauss teaches, is one block east of the university's School of Social Service Administration, the nation's premier school of social work. A two-minute walk would have brought Strauss into the presence of experts with whom to explore the practical consequences of a decision the other way in DeShaney. One block east of the law school is the university's School of Public Policy Studies, where Strauss could have consulted experts in public administration and finance to determine the consequences of using the federal courts to enforce, in the name of civil rights, standards of right conduct for public employees engaged in rescue services, broadly defined.

. . . In any sensible division of responsibilities among branches of the legal profession, the task of conducting detailed empirical inquires into the presuppositions of legal doctrines would be assigned to the law schools. Too many constitutional scholars conceive their role as that of shadow judges, writing, in the guise of articles, alternative judicial opinions in Supreme Court cases.

Now I happen to think this is somewhat overstated. Conducting the sorts of empirical inquiries Posner has in mind certainly has an important place in the legal academy, but so does doctrinal work--not conceived simply in the shadow-court way but by leveraging the key advantages that legal academics have: We have the luxury of time and the ability to view issues in wider focus than do judges, who must decide the case before them, no more and no less. This broader conception of doctrinal work is what Judge Edwards was describing in the passage in my column in which he says what he has in mind by practical scholarship, and it's highly defensible.

Nonetheless, if Posner overstates his case, he still has a case: Judges in deciding hard cases should look at the consequences of their decisions, and legal (and other) academics can provide immeasurable help in that respect. So, what will be the consequences of a Supreme Court ruling saying that there is a federal constitutional right to own and possess a handgun applicable against the states? Various amici in the McDonald case have submitted briefs purporting to cite evidence relevant to that question. Writing in what will almost certainly be a dissent, Justice Breyer and/or one of Justices Stevens, Ginsburg, and Sotomayor will likely cite some of this evidence as a reason why the Court is wrong to apply the Second Amendment to the states. But I doubt that the majority will find this evidence relevant. If I'm right, it will be because when Justice Scalia calls for practical help from lawyers and academics, what he means is doctrinal help. Where gun rights are concerned, his notion of what's practical does not include how things work out in practice. As he wrote dismissively and question-beggingly in concluding his opinion in DC v. Heller:

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Maybe not, but it is the role of the Court to say what the Second Amendment means--and given that there is legitimate contestation over meaning as a textual and historical matter, consequences ought to count for something.

KSM Via Video?

noreply@blogger.com (Michael C. Dorf) — Mon, 08 Mar 2010 06:12:00 +0000

When last I opined on the looming KSM trial, I ventured the guess that the Obama Administration would give up on trying Khalid Shaikh Mohammed et al in any civilian court, given that every such court would involve at least SOME security risk for the courthouse and the city in which it is located. And although the Administration says no decision has been made about where to hold the trial, a military tribunal is looking increasingly likely. Herewith, a few observations:

1) From a purely political angle, perhaps the best course for the Obama Administration would be to hold a trial in a reliably Republican state, Texas or Utah, say. There will be demagoguing about holding the trial anywhere, including opposition from state and local officials, but the Administration can minimize the political price it pays by selecting a site in which the locals are already overwhelmingly going to vote for Republicans.

2) There is some question about how one legally justifies selecting Dallas or Salt Lake City as the appropriate venue for the KSM trial, given the "district" requirement of the 6th Amendment, but if a military trial on Gitmo would legal, it's hard to see why a civilian trial in Dallas or Salt Lake is not--unless one were to say that once the Administration invokes the civilian criminal process, all of the usual safeguards kick in.

3) In response to my earlier post, one reader suggested a civilian trial on a military base. I suspect that proposal would also succumb to the NIMBY objection, even if there were only a miniscule security risk. In any event, Congress may tie the President's hands by stripping the federal district courts of jurisdiction over a category of cases that includes KSM. Would Pres. Obama sign such a bill? If not, would Congress override his veto? Politically, here, as on other civil liberties issues, unfortunately there's not much angle for congressional Dems in taking a stand.

4) A nice compromise would be a trial by a civilian court at Gitmo or somewhere else outside of any Congressional district, but this can't be done because of the impossibility of empaneling a jury. Moreover, Congress would have to create a special district court for Gitmo, which it it is highly unlikely to do.

5) All of this leads me to think that the best solution would be yet another compromise: Try KSM and his alleged accomplices in the SDNY in Manhattan, but leave them on Gitmo or some other secure location, with a live 2-way audio-video feed. There is currently no provision for such a trial in absentia (as far as I am aware), and it would probably violate the 6th Amendment Confrontation Clause, at least absent KSM's consent. But if KSM has no right to be tried before a civilian court in the first place, then perhaps consent would be unnecessary.

6) What I like most about the audio-video feed idea is that it calls the bluff of those people who simply don't believe in civilian trials for terrorism suspects, but are using the question of how to provide security for the courthouse pretextually. There are, to be sure, legitimate reasons to worry about the use of civilian courts in such cases, but these have not stood as an obstacle to past terrorism trials in civilian courts (even during the GW Bush years), and presumably AG Holder has already determined that such obstacles are not insuperable in the KSM case.

7) I suppose that someone could object that even a KSM trial w/o the physical presence of KSM would create security problems (again, apart from the security issues inherent in airing matters of national security in open court). But that is an objection to just about any civilian terrorism trial.

8) An emerging rallying cry for the civil libertarian position says that civilian trials for accused terrorists, in addition to being routine, will result in swifter and surer penalties. (See this ACLU ad for an example.) I'm skeptical of the likely efficacy of this approach. The appeal of the military commission approach may be more to the limbic system than to the neocortex.

Update: Deadbeats and Due Process

noreply@blogger.com (Neil H. Buchanan) — Sun, 07 Mar 2010 00:40:00 +0000

-- Posted by Neil H. Buchanan

A quick follow-up on my post from yesterday: The TaxProf blog reports that the proposal to fire Congressional staffers for not paying their taxes has been killed (at least for the time being). As I suspected (and wrote in yesterday's post), the supposed deadbeats have not actually been proved to be cheating on their taxes. They have only been accused. Moreover, as the linked article points out, it will be quite easy to collect the unpaid taxes from any federal employees who are found to be in arrears: We know where they work, and we have direct control over their paychecks.

One Rangel Down, One Geithner to Go

noreply@blogger.com (Neil H. Buchanan) — Fri, 05 Mar 2010 08:01:00 +0000

-- Posted by Neil H. Buchanan

Rep. Charles Rangel (D-NY) has been forced to resign as chair of the tax-writing House Ways & Means Committee. (Although he initially described it as a temporary leave, apparently this is essentially irreversible under the facts as they stand -- and the facts could get much worse.) Even though the ethics committee ruling that apparently precipitated Rangel's resignation did not cover tax matters, there is a federal tax issue that is still pending against him (failure to pay taxes on rental income); and given his position as the head of the most important committee in Congress on tax issues, it is understandable that his ethical issues have a strong tax tint to them in public discussion.

Rangel's departure is good for the country, good for Congress, and good for the Democratic Party. Unfortunately, it appears that the process followed the usual pattern (for both parties) of stonewalling by a powerful politician until it becomes too politically costly for his partisans to continue to support him. It would be much better if this were to become an object lesson for Democrats in the importance of actually being beyond reproach on taxes.

Democrats, after all, face a much more difficult task than Republicans. As the party that generally believes in the (limited but essential) ability of government to do some good for the country, they harm themselves when they feed public cynicism by engaging in corrupt practices -- especially on tax matters. When Republicans do something wrong, it is merely further evidence that we should not trust politicians to do anything right, perversely reinforcing the Republicans' overall message. While the James Carville school of thought seems to be that politics is all a big cynical battle, and Democrats should fight as dirty as Republicans do, the reality is that Democrats cannot stay in power for long unless they actually accomplish things. In turn, they cannot accomplish things unless they have the support of the public at large. Feeding public cynicism is, therefore, suicidal for Democrats.

This point is not as obvious as it might seem. Consider one of the issues on which Republicans are most vulnerable in the hypocrisy sweepstakes: marital infidelity. The parade of clowns including (but certainly not limited to) Mark Sanford and John Ensign is not generally engaging in things that most Americans consider to be serious moral infractions. Yes, we all like to believe that people will be faithful to their spouses; but we know that many people stray, and there is little appetite for making a bigger deal out of infidelity than we do. What makes the Sanfords and Ensigns vulnerable is not that they are doing something that other people never do. It is that they are rank hypocrites, claiming to be committed to leading America to a more moral future, with devotion to traditional families at the center of their ideal world. They insisted upon a different, stricter moral standard. Then they failed (spectacularly) to live by it.

By contrast, the Democrats have not claimed to set a standard beyond that which should normally apply in society at large. People should not cheat on their taxes. People should not take money under the table. People should not break the law. When Democratic politicians fail those standards, they are not the victims of their own artificially high standards but are, quite dramatically, simply doing what no one should do in any case.

Again, however, what makes tax dodging by Democrats worse politically than tax dodging by Republicans is that Democrats need to show that government can work in a non-corrupt way. When the people see politicians cheating on their taxes, it can only lead to a very sad and predictable cynicism.

This is why Treasury Secretary Timothy Geithner remains such a political liability to the Obama administration and to Democrats more generally. He received special treatment when he was found to have failed to pay taxes (when anyone in his position should have known that taxes were due), and people are rightly angry about that. It is even worse, of course, because the IRS is part of the very department that he leads.

Similarly, there has been some recent discussion of the number of tax "deadbeats" who work for the federal government. A Republican Congressman has proposed that any Congressional employee who fails to pay their taxes should be fired. (This would extend the rule already in place for IRS workers, who are the most scrutinized and squeaky clean workers in the country.) As tempting as it is to view this proposal as mere political posturing, it is difficult not to agree with the basic idea. We are not, after all, asking people to do anything more than obey the law.

The legitimate concern, of course, is that this type of thing can become a witch hunt. Zero tolerance policies -- of which this proposal would be a very powerful example -- are notorious for being coupled with the denial of due process for accused wrongdoers. Putting in place a policy to fire tax "deadbeats," therefore, requires serious thought about what really makes a person a deadbeat.

Consider a personal anecdote. A few months ago, I received a notice from New York State indicating that I was in arrears on my state taxes, in an amount including penalties and interest of more than $15,000. This was for the year 2004. The problem was that I had neither lived nor worked in New York in 2004. In April 2005, I had moved to New York City, and I had entered my new address on my 2004 federal tax return, because that was my correct address when I signed the return.

It turns out that New York (and many other states, I suspect), in a completely sensible anti-fraud strategy, looks for federal returns each year with New York addresses for which there is no matching New York state return. Mine was such a return. The state then estimated my taxes due based on my federal return information, and it then added interest and penalties as appropriate under the law.

Happily, this was not a case where New York State's government lived down to my previous criticism of it as the "worst state government ever." I contacted the appropriate office, was given information on how to correct the record, sent in my New Jersey tax form for 2004, and received a letter clearing me of all NYS tax liability for the year. A minor annoyance, with no harm done.

The worry, of course, is that the lists of "deadbeats" that motivate the public outrage regarding public employees who do not pay taxes are littered with people who are not deadbeats in any meaningful sense of the word. Prior to mid-February of this year, I would have shown up on a list of people who had failed to pay state taxes -- and it would have looked even worse, because I had failed to pay for several years and had even been assessed penalties. Looks like a deadbeat to me!

The solution to this is not difficult, nor is it even particularly unusual. Any lawyer knows that you protect people from hasty convictions by providing adequate procedures to allow innocent employees to mount a defense. The serious danger is that federal employees, who are regularly (and unfairly) pilloried by politicians as lazy bureaucrats or worse, will not receive that fair shake.

All of which makes it clear that Democrats' ability to follow my advice above -- just follow the law, and you'll be fine -- will be limited by messy reality. Some cases can be made to look bad in the press, even if the employee is not actually cheating on his taxes. We will never be able to eliminate demagoguery surrounding taxes, but we can certainly eliminate the easiest cases. Rangel is gone. Geithner should be. Others who can be shown definitively to have violated the tax laws should not continue to serve. We will never get it exactly right, but Democrats need to think very carefully about just how much they (and we as a nation) lose by not trying harder.

Individuals, Groups, and Hate Crimes

noreply@blogger.com (Sherry F. Colb) — Thu, 04 Mar 2010 12:30:00 +0000

Posted By Sherry F. Colb

In my column for this week, I discuss an anti-abortion billboard that asserts that "Black Children Are An Endangered Species." I compare this assertion to the notion that African-American men are endangered, and I explain both the strengths and weaknesses of the analogy. One small part of my critique of the billboard takes up the poverty of the "endangered species" metaphor, for humans and nonhumans alike, on the grounds that to speak of a "species" as endangered is to ignore the inherent worth of the individuals who happen to be members of that "species" (whether metaphorical or actual). In this post, I want to explore further the difference between valuing individuals as individuals, on the one hand, and valuing them only as exemplars of their groups, on the other.

One common feature of fetishizing a group, whether it is a species, a racial or religious group, or a cultural community, is that it tends to treat each individual member as less important than the group as a whole. If the group will benefit from the sacrifice of the interests of one or more individuals, then it becomes acceptable -- and even laudable -- to sacrifice those interests, however weighty. To place the group's interests above those of the individual, in other words, is to view the individual in instrumental terms rather than as an end in himself or herself.

This sort of thinking is very much on display in discussions of endangered (nonhuman animal) species. The purpose of prohibiting the killing of a particular kind of animal, on this approach, is to ensure that we humans can live on a planet that contains that kind of animal. If an individual wolf or sea mammal benefits from this, the benefit is only an incidental one that will, moreover, end as soon as there are enough exemplars of that animal's DNA to take the group off the "endangered" or "threatened" list.

Does such thinking similarly degrade discussions of racism? Some might argue that it is in the interest of African Americans to have people focus on the group rather than on the individual. Reactionary political maneuvering, for example, will sometimes hold up a particular African-American individual who has "beaten the odds" (whether educationally, economically, or otherwise) as a means of condemning other African Americans who have not been so lucky. The implicit message is "she made it; why can't you?"

Such cynical tactics, however, are destructive because they ignore the circumstances in which so many individual African Americans find themselves. Invoking the success of other individuals, fewer in number, serves to erase the struggles of most and to attach responsibility for their predicament to the particular individuals. This is less a matter of attending to the individual than it is of ignoring structural forces by emphasizing outliers and thereby disregarding the differential challenges that face people on the basis of race. The move is comparable to what a tobacco company does (or did in the past) when it showcases a heavy smoker who never developed lung cancer or emphysema in support of the claim that smoking is consistent with good health.

Invoking the experience of an individual who defies the odds to deny the validity of (and reasons for) other' experiences does no honor to the individual. When I speak of focusing on groups, I do not refer to gathering facts by looking beyond the individual -- this is how we get a more complete picture of what is going on, as a descriptive matter. I mean to refer to practices that identify groups rather than the individuals within those groups as the relevant body to consider in making judgments and policy choices.

To value the group at the expense of the individual is to negate the particular worth and entitlement of each individual. Accordingly, it is the perpetrator of a hate crime (or a genocide) who overlooks the individual and sees every member of the devalued group as merely an exemplar of the enemy, to be enslaved or assaulted or killed on that basis. The racist fails to see how much he or she shares with the object of racism and instead views an individual as "one of them" and therefore outside the circle of concern. The same is true of speciesism, the practice of dismissing the inherent value of an individual sentient being, by virtue of the fact that the being is not human.

Consider an argument that sometimes surfaces when the topic of abolishing animal use comes up. People assert that farmed animals (including cows, pigs, sheep, chickens, ducks, turkeys, geese, goats, and fishes) have been the most "successful" at survival because people choose to consume them. That is, the species with the largest numbers of members are those whose flesh and bodily fluids we eat and whose skin we remove (or "de-hide", often -- because of the sheer numbers -- while animals are still alive) to use for clothing or accessories. The fact that every individual animal undergoes terrible pain and emotional trauma (including routine and wrenching separation from loved ones so the latter may be killed) and is slaughtered when she is still a baby or adolescent is beside the point in discussions of how "successful" the species have been.

This "success" argument takes as its premise the idea that the more of a particular kind of DNA exists, the better it is for those beings who possess that DNA. On this reasoning, if one group of human beings were to enslave and breed another group of human beings until the latter became ten times more numerous than the former, the enslaved humans would have proved to be more "successful" than the slave-masters. This would be true even if -- as in animal agriculture -- the enslaved humans were kept in captivity, subject to torture, made to lose everyone who cared about them, and were finally led in a "kill line" to their deaths at a slaughterhouse as children or young adults. To call this existence success would be strange indeed, and it is no less so when the supposedly successful beings happen to be cows or chickens.

To use an individual being as a thing -- to inflict suffering and death on a living creature to obtain a tasty snack -- is wrong. (And the fact that such snacks are easily replaced with tastier and healthier vegan food only makes the wrong more incomprehensible). And when one commits that wrong simply because the individual belongs to a devalued group, then that wrong is akin to racism, misogyny and other forms of hate crimes.

I came for the waters

noreply@blogger.com (Michael C. Dorf) — Wed, 03 Mar 2010 06:22:00 +0000

By Mike Dorf

A distressing story in Monday's NY Times describes how confusion sown by two Supreme Court cases has hamstrung the ability of the EPA to enforce the Clean Water Act. In a nutshell, there is now considerable uncertainty about how far upstream federal authority runs.

The two cases the Times story references are Solid Waste Agency v. U.S. Army Corps of Engineers and Rapanos v. United States. Solid Waste Agency invalidated the "migratory bird rule," under which the federal govt treated any body of water as subject to regulation if it was used by migratory birds. The Court held that Congress did not intend to authorize federal regulation of abandoned gravel pits when it authorized regulation of "navigable waters." The plurality opinion in Rapanos attempted to do the same thing with respect to drainage ditches (and the like) which emptied into navigable waters, but the Court fractured, with the controlling opinion by Justice Kennedy establishing a "nexus" test. Although the Times story understandably does not go into doctrinal detail, one would expect that the confusion (as opposed to straightforward lack of regulatory authority) would come from Rapanos.

Confusion in the scope of regulatory authority could be cleared up by Congress, and the Times story cites efforts to do so. However, these efforts are being stymied by lobbyists for the major polluting industries, including agriculture. There is also a looming question of congressional power. The Supreme Court's holding in Solid Waste Agency was rooted partly in the Court's stated interest in avoiding what it deemed a difficult constitutional question: whether the Commerce Clause reaches regulation of small intrastate waters.

I suspect that there are five votes on the current Supreme Court to uphold the application of the Clean Water Act to circumstances like those in Rapanos. Pollutants dumped in ditches flow until they reach larger bodies of water, where they can have an enormous impact on interstate commerce (by, for example, poisoning fish and crops). So even assuming the migratory bird rule was outside the scope of congressional power, the Court need not reach the same conclusion for the rule at issue in Rapanos. But that still won't do us any good if Congress does not act.

To what extent is Congress controlled by the entities that benefit (in the short run) from the ability to dump their toxins into everyone else's water? I suppose the answer may well be "enough" to block any useful legislative change. But to the extent that there is even a bit of room for public-regarding argument to make a difference, this is an area where concerted public outrage could be mobilized. For whatever doctrinal significance may or may not attach to the difference between toxins dumped directly into a reservoir and those dumped into a ditch that flows into the reservoir (or into a pile that leeches into the groundwater), there can be no substantial policy difference between the two acts.

The tea party right is supposedly angry about the bailout of American banks. If so, that must be because the banks were given a public resource by the government without any requirement that they use it in the public interest. How about some outrage about other business interests being permitted to appropriate a public resource--our water--for private use without limitations to serve the public interest?

Come Back, Eliot Spitzer

noreply@blogger.com (Michael C. Dorf) — Tue, 02 Mar 2010 07:44:00 +0000

By Mike Dorf

What are the informal norms governing the circumstances under which an elected official should resign in the face of a sex scandal? Consider the latest oddity from New York State. Although he has announced that he will not seek a second term, NY Governor David Paterson is adamant (for now) that he will not resign his post in the wake of revelations that state troopers--perhaps acting at the governor's behest--dissuaded a woman from seeking a protective order against David Johnson, one of Paterson's top aides. It's possible, of course, that Paterson is completely blameless in the Johnson matter, but given that the Johnson story was the immediate impetus for Paterson's abandonment of his election plans, that seems unlikely. So for my purposes, I'll count Paterson in the guilty-of-something-but-not-required-to-resign category. Given how Paterson came to be Governor, that is quite odd.

Eliot Spitzer was caught going to a prostitute. That showed Spitzer to be a cad (and given how much he paid, perhaps a mark as well!). And it was illegal. But unlike the accusations against Paterson, Spitzer's scandal did not involve the abuse of official power. In this regard, Spitzer is also worth contrasting with Bill Clinton, whose affair with Monica Lewinsky was both inherently exploitative of his status relative to her and involved White House staff (remember Betty Currie) in the cover-up. Yet Clinton, like Paterson, got to serve out his term. So, was Spitzer's decision to resign a mistake? Having engaged in behavior not as bad as Clinton or Paterson (if the allegations prove true), and no worse than SC Governor Mark Sanford's hiking of the Appalachian Trail, shouldn't Spitzer still be in office?

Is Bob Livingston the better precedent for Spitzer? Recall that Livingston stepped down from his position as Speaker of the House (but retained his House seat) before his term even began because of the revelation that he had an affair. Unlike Paterson (who, bizarrely enough, came into office admitting that both he and his wife had previously had affairs) and Clinton (whose philandering was an open secret) both Livingston and Spitzer faced hypocrisy charges. Having been a vocal critic of Clinton's extra-marital affair, Livingston had little credibility when his own was revealed. Turning them around, Livingston gave up the Speakership and challenged Clinton to give up the Presidency. Similarly Spitzer--who had used the resources of law enforcement and the bully pulpit to attack prostitution--was revealed as a hypocrite.

But apparently hypocrisy alone isn't enough to warrant immediate resignation. If it were, then various social conservatives who have preached family values would have resigned their offices upon the news of their respective sex scandals. Yet Sanford, David Vitter, Larry Craig, and John Ensign all held onto their offices after their scandals broke. Only Mark Foley had the decency to resign pronto, and he was the least socially conservative of the lot. So hypocrisy alone cannot explain who resigns and who stays on.

All of which leads me to consider one or more of the following:

1) The threats of impeachment against Spitzer were more serious than the threats of impeachment or other means of removal for others. This fact, if it is a fact, only raises the question of why that would be, to which part of the answer might be that Spitzer's scandal broke early in his term and governors are more visible than legislators.

2) There's more to the Spitzer story than meets the eye. I would have gone with this one a while back, but Spitzer has clearly raised his profile lately, which is not something he likely would have done if he were worried about more details coming out (unless he's a reckless fool, a possibility one can never overlook given the behavior of say, Gary Hart, Bill Clinton, John Edwards, etc. etc.).

3) Spitzer simply blew it. He should have weathered the storm and had he done so, he might now even have a shot at re-election. After all, Marv Albert's network banishment only lasted two years, and Client 9 never bit anybody.

Game Change

noreply@blogger.com (Michael C. Dorf) — Mon, 01 Mar 2010 11:24:00 +0000

By Mike Dorf

Herewith, a few thoughts on the ever-so-engrossing Game Change, which I just finished reading:

1) Most of the mainstream discussion of the book has focused on various revelations of dysfunctional marriages and gaffes, the gaffiest of these being Harry Reid's "Negro dialect" comment--which, interestingly, is not presented in the book as a gaffe at all but simply matter-of-factly in the discussion of how the Senate Democratic establishment moved to Obama because of fears that Hillary Clinton would lose the general election. The bulk of the book is instead a re-telling of the race that is extremely familiar to anyone who was following it closely (okay, obsessively) at the time. What makes Game Change so entertaining is that the reader gets to relive these moments from the inside of the various campaigns.

2) As the title suggests, the theme of the book is how various events were game changers: The Obama team out-organizing the Clinton team in Iowa; Clinton's tearing up on the eve of the NH primary; Charlie Crist's non-endorsement of Giuliani; the selection of Palin; the Katie Couric interviews; and for the authors, most importantly, the contrast between Obama's sober engagement with, and McCain's gimmicky reaction to, the financial crisis in the week and a half between the collapse of Lehman Brothers and the first Presidential debate. I don't disagree that each of these events felt like a game changer at the time--and the events that bore on the intra-party contests almost certainly were quite important. However, the very notion of a game changer in a Presidential election runs contrary to pretty entrenched conventional wisdom in political science: That a relatively small number of factors such as the state of the economy, which party holds the White House, and the public mood together determine the outcome of nearly all such elections. Only when these factors point weakly in one or the other direction can such matters as candidates' personalities and all of the minutiae on which campaigns focus make much of a difference.

3) And yet, reliving the election through Game Change, it is hard to swallow the conventional wisdom. Suppose Obama had stayed out in 2008, as he almost did, and that Edwards, with his superior Iowa ground game, emerged as the alternative to Clinton. He might have wrapped up the nomination quickly. Then, he could have continued denying paternity of Rielle Hunter's baby for months, only to have it confirmed after he became the nominee. Is it so hard to imagine McCain winning the election under these circumstances--especially if he had chosen a more conventional running mate?

4) What I mean to be raising here--and what the book very nicely illustrates--is the fact that history is made by the combination of large impersonal forces and path-dependent quirks of fate and personality.

5) My biggest disappointment in the book was its failure to mention (and therefore its failure to delve into what lay behind) what I thought were two of Joe Biden's high and low points. High: When he skewered Rudy Giuliani as defining a sentence as "a noun, a verb, and 9/11." Low (other than the "clean" comment that smothered his candidacy in its crib): When he appeared to threaten to shoot his running mate if he "messed with" Biden's shotguns.

6) Meanwhile, the best tidbit that I learned (spoiler alert) was McCain's exasperated response when asked during debate prep if he knew the difference between a gay marriage and a civil union. McCain snapped, "I don't give a fuck." Let's give McCain the benefit of the doubt and assume that he did know the difference but really just didn't care. After all, he was the vastly better informed half of the Republican ticket. Sarah Palin couldn't explain to her debate prep team why North and South Korea are two different countries.

Loving the Enforcers

noreply@blogger.com (Neil H. Buchanan) — Fri, 26 Feb 2010 08:01:00 +0000

-- Posted by Neil H. Buchanan

My FindLaw column this week, published yesterday, discusses the recent attack on the IRS building in Austin. My major purpose in writing the column was to defend the IRS and its employees against the irresponsible and utterly false attacks from those politicians and commentators who pander to anti-IRS and anti-tax sentiment.

As I often tell my students in the basic Federal Income Taxation course, the truly surprising thing about the IRS is how well it is run. Even though it is systematically and chronically under-funded (precisely because of the political pressures that reflect -- and reinforce -- public hatred of the agency), and even though it faces the Herculean task of interacting each year with virtually every adult and business in the country; it has an enviable record of professionalism.

Consider the records of just a few other agencies (public and private). During George W. Bush’s tenure, the Department of the Interior was rocked by a scandal involving sex and drugs in exchange for favorable treatment for those whom the department was supposed to regulate. Police forces are accused of unjustified killings of civilians, and some of those accusations are found to be true upon investigation. Financial ratings agencies “work the numbers” to keep clients happy. By contrast, the IRS has many thousands more employees, with literally trillions of dollars flowing through the agency each year, yet repeated investigations into the Service’s activities turn up no systemic problems and amazingly low numbers of isolated errors.

One particular aspect of my column is worth emphasizing. I point to the 1998 hearings held in the Senate Finance Committee at the end of the second Gingrich Congress. The committee held hearings that were designed to expose the IRS as a corrupt, arrogant, abusive agency that had spun out of control. People were brought in to tell their tales of horror, with a sympathetic committee assembled to listen.

As I describe in my column, not only was the most shocking horror story later exposed as a tissue of lies -- the person who testified to having seen the events later admitting that he had not even been present, and the other participants denying the explosive testimony that he had offered to Congress -- but the more pedestrian claims turned out not only to be tiny in number, but also largely baseless.

Writing a column like that one, of course, is one of the benefits of tenure. Being known as “the guy who loves the IRS” might lead to some hostility, but I am not in danger of being fired for my unpopular views. Politicians who know that the IRS is a convenient scapegoat, however, have no guaranteed tenure, and thus they refuse to step up and defend the Service and its employees from irresponsible accusations. This is a tragedy, not only because of the recent Austin attack on an IRS building but because day-to-day threats against IRS employees are high and rising.

None of which should be a partisan matter. In fact, if anything, the group that likes to think of itself as the "party of law and order" should be expected to be especially worked up about showing proper respect for those who are on the front lines of enforcing the law. It is thus interesting to think about when and how different people respond to the suggestion that there is a reason to resist and criticize law enforcement.

In the 1950's and 1960's, liberals frequently disparaged the police and the military. This was based on the belief that the laws were not only unjust but that the enforcers of that law were making matters worse. The civil rights movement faced institutionalized racism, racism that frequently showed itself in brutal police tactics. (The most enduring image is probably Bull Connor's men attacking African Americans in the streets of Birmingham.) The movement against the Vietnam war had two especially memorable moments of violence: the Chicago police attacks on protesters at the 1968 Democratic convention, and the killing of four students at Kent State University in Ohio. Some people took to calling the police "pigs," and the public at large (even those who did not call the police names) was shocked. By the time the seventies came along, the atmosphere of anger toward police was widespread enough that defenders of the police took to putting bumper stickers on their cars with slogans like: "If you don't like cops, next time you're in trouble, call a hippie!"

It would appear, then, that there is a nice parallel: Liberals (loosely speaking) grew to dislike the police and the military because of their belief that those institutions were out of control and not on the side of "the people." Conservatives (again loosely speaking) today dislike the IRS because of their belief that the Service is out of control and not on the side of "the people."

It is a nice parallel at first glance, but it breaks down almost immediately. The evidence was plentiful in the 50's and 60's that more than a few police officers and some military personnel actually had engaged in violent activities aimed at particular groups. Moreover, liberals never claimed that the police or the military were irredeemable or that their basic functions were illegitimate. Instead, institutions like citizens' review boards came into being, in an attempt to end the abuses that we had seen with far too much frequency. Those who vilify the IRS, by contrast, simply believe as a matter of faith -- beyond all objective evidence -- that tax collectors are abusive and corrupt. They do not look for reasonable approaches to improve IRS conduct but claim instead that the Service is beyond salvation. The good news, that the enforcers really are following the rules, is simply too inconvenient.

As I said in my column, no one likes to be caught doing something wrong; and the enforcers of laws will, therefore, always be met with some hostility. What separates those who hate the tax enforcers from everyone else is that the IRS bashers are not reality-based. Why does that problem seem so familiar?

Constitutions and Restaurants

noreply@blogger.com (Michael C. Dorf) — Thu, 25 Feb 2010 07:52:00 +0000

By Mike Dorf

As promised yesterday, here is a further thought on my latest FindLaw column. In the column, I argue that issues of constitutional law are never fully settled, because they are always open to the possibility of re-examination. If I'm right, that creates a problem, because one of the basic purposes of law is what is sometimes called "the settlement function," i.e., the law's ability to resolve questions so that everyone knows the answer and energy is not wasted fighting over the law's meaning. Settled law permits people to rely on the law, and thus to make investments based on relatively certain expectations. People who think the settlement function of law very important relative to other functions of law (such as substantive justice) tend also to have a commitment to rules rather than standards and, typically, to static interpretive approaches (such as originalism) rather than dynamic ones (such as living Constitutionalism). Constitutions themselves, insofar as they establish bedrock structural features and fundamental rights, are thought to be especially important for settlement.

But the possibility that settled interpretations of the Constitution can be upended means that in many areas one can never fully rely on the Constitution itself to provide a lasting settlement--and that's true even if some long-lasting settlement is not ultimately upended. Like the sword of Damocles, the possibility of upsetting a settlement prevents (some measure of) reliance so long as it remains a live possibility, even if never realized.

This is obviously a serious problem in countries in which the Constitution itself is liable to be upset at any time, which is to say, in most countries at most times. As Tom Ginsburg et al report in a recent paper, the average lifespan of a national constitution is 17 years. Constitutions, it seems, are like restaurants: Most new ones fail.

Ah, you say, but not the U.S. Constitution, which is chugging along nicely in its third century. But there's a catch, you see: Ginsburg et al find that long-lived constitutions are typically flexible, either because they are easy to amend (which the U.S. Constitution is not) or because they are interpreted flexibly over time (which the U.S. Constitution has been). It seems that constitutions simply cannot play the settlement function that some theorists imagine they play: Either a constitution will be flexible, and thus leave many matters unsettled or subject to unsettling; or it will be inflexible, and thus die young, giving way to a whole new constitution and thereby unsettling the legal order that way.

The Mount Vernon Statement

noreply@blogger.com (Michael C. Dorf) — Wed, 24 Feb 2010 06:02:00 +0000

By Mike Dorf

My latest FindLaw column explains how nothing in constitutional law is every really, finally settled. It's always open to being disrupted. Tomorrow I'll add some further illustrations. Today, I'll elaborate on an oblique reference in the column to a "recent small-government manifesto." Those who follow the link will find that it points to something called The Mount Vernon Statement ("MVS"). The MVS was unveiled last week by a small collection of somewhat prominent (albeit old) conservatives. It was meant to pay homage to the late William F. Buckley's Sharon Statement of fifty years earlier. Herewith a few observations about the MVS:

1) Like the original Buckley manifesto, the MVS is highly libertarian. The Constitution to which its authors commit themselves is not the current version, which includes an assortment of amendments moving the country in a more egalitarian direction (not the least of which are the Reconstruction Amendments, including the Fourteenth Amendment's equal protection clause), but the original document, with its express, if veiled, protection for slavery. And even then, the MountVernonites have erased the egalitarian ideals (however conflicted) of that era. Although the MVS repeatedly cites the Declaration of Independence as a source of guidance, it omits any hint of the most famous line: "All men are created equal."

2) The MVS presages or reflects a re-opening of the divide between economic libertarians and social conservatives. In a few places, it throws a sop to social conservatives. For example, it states that "A Constitutional conservatism . . . reminds economic conservatives that morality is essential to limited government" and "informs conservatism’s firm defense of family, neighborhood, community, and faith." Yet the language is much more strongly libertarian and more fundamentally, the MVS makes no serious effort to explain how modern social conservatism can be traced to the Founding. The closest it comes is in its invocation of natural law and the Divine origin of rights that it loosely links to the Declaration. But that language is at best prefatory and its author, Thomas Jefferson, was a Deist and a separationist whose views most social conservatives think were out of step with what they regard as the predominant Theism of the Founding Era (as nicely described in a recent NY Times Magazine article). Overall, the economic libertarian perspective dominates the social conservative perspective here.

3) The MVS is curiously meek on foreign affairs. Here is what Buckley's Sharon Statement said about national security in 1960:

THAT we will be free only so long as the national sovereignty of the United States is secure; that history shows periods of freedom are rare, and can exist only when free citizens concertedly defend their rights against all enemies…

THAT the forces of international Communism are, at present, the greatest single threat to these liberties;

THAT the United States should stress victory over, rather than coexistence with this menace . . . .

By contrast, the MVS contains only two references to foreign policy. It says that the signatories' vision "supports America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end." It's hard to think of anyone in the gigantic political space that includes both Dennis Kucinich and Dick Cheney who would disagree with that statement. The MVS also professes "that energetic but responsible government is the key to America’s safety and leadership role in the world." Here too, do any liberals disagree?

The essential emptiness of the MVS's professions regarding foreign policy bespeaks either internal division or exhaustion. I'm betting on the latter. While Republican politicians will continue to score some political points by portraying Democrats as soft on terror, given that Obama's foreign policy (including his military budget) exhibits far more continuity than discontinuity with that of Bush, and given that there is no remaining capacity for further military commitments, even if there were the will for them, the MVS's foreign-policy meekness is at bottom a nod to grim reality. Looking at the glass as 5% full rather than 95% empty, I'll celebrate even this partial return to reality-based thinking by the right.

Turning back to domestic policy, it is notable just how tired-sounding and unoriginal are the ideas in the MVS--and not because they are somehow timeless truths. Whatever recent resurgence of support the last few months have seen for politicians on the right cannot plausibly be explained by any sort of policy creativity. Rather, of late the right has simply been doing a better (if cynical) job of capitalizing on populist anger than has the left. Progressives are currently losing a PR battle, not a war of ideas.

Not So Fainthearted After All

noreply@blogger.com (Michael C. Dorf) — Tue, 23 Feb 2010 07:23:00 +0000

Yesterday's SCOTUS per curiam opinion in Wilkins v. Gaddy, would not be noteworthy were it not for the remarkable separate opinion by Justice Thomas, joined by Justice Scalia. In 1992, in Hudson v. McMillian, SCOTUS held that abuse of a prisoner can constitute cruel and unusual punishment even if no serious physical injury results. In Wilkins, the Court reversed a 4th Circuit decision that essentially ignored Hudson. The 4th Circuit affirmed a district court decision dismissing a prison abuse lawsuit because, in the judge's view, the injuries suffered by the plaintiff were "de minimis."

In a moment, I'll quote the abuse allegation, but first let's focus on the Thomas/Scalia opinion. They agree with the rest of the Court that the 4th Circuit approach in Wilkins is inconsistent with Hudson, and thus should be reversed under existing precedent. However, Justice Thomas says (as he did in 1992) that Hudson itself was wrongly decided. According to Justice Thomas's reading of the historical record, the original understanding of the 8th Amendment applied only to "punishments" that were carried out as part of a prisoner's sentence. A guard inflicting unauthorized cruelty on a prisoner is not, in this view, "punishing" the prisoner, even if he is harming the prisoner.

Justice Thomas did not say in Hudson that the original understanding should prevail. Rather, he said then, and he reiterated yesterday, that in order to prevent the 8th Amendment from becoming "a National Code of Prison Regulation," 8th Amendment claims for abuse that is not part of the sentence should be limited to those that result in "serious injury." It's not entirely clear why even those claims should be allowed under the Thomas approach. Purporting to root the serious-injury requirement in an earlier ruling, Justice Thomas could be said to have relied on stare decisis--although if that's the reason, one wonders why Hudson itself is not now entitled to respect under stare decisis, and in any event, Justice Thomas frequently advocates abandoning precedent in the name of original understanding.

Perhaps the best explanation why Justice Thomas is willing to allow 8th Amendment claims for even the narrow category of unauthorized abuse that results in serious injury is that he is, at the end of the day, a "faint-hearted originalist." That's Justice Scalia's term. He says in a 1989 essay titled "Originalism: The Lesser Evil," that most originalists (presumably including himself) are "faint-hearted," i.e., they would, in extremis, discard the original understanding to avoid truly dreadful results. Interestingly, he gives "public flogging" as an example: Practiced in the 18th century, he says that even most originalists would likely find it violates the 8th Amendment today.

Accordingly, we might view the willingness of Justices Thomas and Scalia to go along with precedents establishing that the 8th Amendment bars unauthorized prisoner abuse by guards where serious injury results as a sign of their faint-heartedness, i.e., as a sign that each has some compassion for prisoners after all. But before you conclude that this makes Justices Thomas and Scalia all warm and fuzzy, take note of how UN-fainthearted they are. If they had their druthers, they would do away with Hudson and would thus deny that an 8th Amendment violation has occurred when "serious injury" has not occurred.

What, in particular, would they say does NOT violate the 8th Amendment? Here is the allegation of abuse from the plaintiff's complaint in yesterday's case, quoted by the majority: Gaddy, the defendant guard,

apparently angered by Wilkins’ request for a grievance form, “snatched [Wilkins] off the ground and slammed him onto the concrete floor.” Gaddy “then proceeded to punch, kick, knee and choke [Wilkins] until another officer had to physically remove him from [Wilkins].” Wilkins further alleged that, “[a]s a result of the excessive force used by [Gaddy], [he] sustained multiple physical injuries including a bruised heel, lower back pain, increased blood pressure, as well as migraine headaches and dizziness” and “psychological trauma and mental anguish including depression, panic attacks and nightmares of the assault.”

Because the district judge characterized all of this as "de minimis," it did not satisfy the "serious injury" requirement that Justices Thomas and Scalia would impose on 8th Amendment claims that do not challenge the formal sentence. I guess they're not so faint-hearted after all.

As with Germs, So with Republicans: Sunlight Will Be the Best Disinfectant

noreply@blogger.com (Bob Hockett) — Mon, 22 Feb 2010 00:37:00 +0000

By Robert Hockett

One of the more interesting features of Republican opposition to a variety of salutary proposals made by the Obama Administration and the Democratic Caucus in the Congress, I find, is that so many features of these proposals to which Republicans currently -- and flamboyantly -- object originate with ... well, Republicans themselves.

A particularly interesting case in point here is that of the "individual mandate" feature of the health insurance reform measures passed in the House and Senate shortly before the winter break. That is a feature about which Neil, I, and especially Mike here at DoL have written at length both here and elsewhere from a number of angles -- fiscal, financial, and constitutional alike. What is interesting about the mandate from the angle of vision I am adopting in this post is the fact that it was originally proposed as an alternative by Republicans -- Republicans then opposing early versions of the Clinton health care reform initiative in the early 1990s, some of whom remain in the Congress to this day and now oppose the mandate. Even more interesting, perhaps, is that the individual mandate has been supported as recently as this past autumn and several years ago, respectively, by such current Republican notables as Charles Grassley and Mitt Romney. See, e.g., http://www.politicsdaily.com/2009/08/24/individual-mandate-flies-under-the-radar/5, and http://www.opinionjournal.com/editorial/feature.html?id=110008213 . (Ironically, President Obama, for his part, opposed the individual mandate idea during the 2008 campaign, and appears to have embraced the idea in order to win more support for health insurance reform from Republican quarters and the insurance industry, as an offset for the additional costs that would be incurred by prohibiting preexisting condition exclusions.)

Notwithstanding the Republican origins of, and recent prominant Republican support for, the individual mandate, however, it has become the latest putative basis upon which Republicans now predicate their charges of Bolshevism on the part of proponents of "Obamacare." This curious change of tune -- as if "on a dime" -- naturally prompts an intriguing hypothesis: Could it be that Republican opposition to Democratic proposals right now are not actually about the perceived substantive merits of the proposals at all, but are in fact about inflicting failure upon the Obama administration and the current Democratic Congress? Certainly Republican Senator Jim DeMint's infamous "Waterloo" prognostication of this past summer -- http://www.youtube.com/watch?v=mHV4nDS501Y -- afforded reason enough to suspect something along these lines even before the latest Republican volte face on the individual mandate. But another, more recent case strikes me as affording the best case yet for concluding that the Republican Party has decided to throw policy merits entirely to the winds and concern themselves solely with getting the Cossacks into Paris, if I may take up Senator DeMint's Napoleonic simile.

The case to which I refer has to do with a particularly salient public policy concern -- namely, the reform of our regime of financial regulation. Many DoL readers will recall that, at the end of last month, President Obama announced his support for three new finance-regulatory measures recommended by Republican Paul Volcker, the former Federal Reserve Chairman now widely viewed, in the wake of Chairman Greenspan's diminished standing, as the last successful occupant of that hallowed office. It will be helpful first briefly to recapitulate those three proposals and preempt possible confusions about them. Then I will report on the most recent Republican reactions to them and to the other most widely reported proposal for finance regulatory reform -- the establishment of a new Consumer Financial Protection Agency.

With respect to the first proposal, which would place limitations upon commercial banks' proprietary trading activities, there is a widespread misperception that the 1999 repeal of Glass-Steagall's imposed "wall of separation" between commerical and investment banks was meant to permit commercial banks with federally insured deposits of ordinary folks' money to speculate in the financial markets with that money in the manner that investment banks do. But this is not so. What changed in 1999 was simply that federally insured commercial banks could now affiliate with -- i.e., could be owned by the same parent company as -- investment banks, on the understanding that the commercial banks themselves would continue to operate and be regulated as before. But this distinction itself has been steadily eviscerated by bank and bank holding company practices in recent years, and so President Obama and Former Fed Chairman Volker are best seen as taking the 1999 legislation at its word rather than as aiming to repeal it. That legislation -- Gramm Leach Bliley -- liberalized financial regulation, but did not end it. The Volcker-Obama plan is accordingly best viewed as, if anything, insufficiently ambitious -- too "conservative" -- in character, rather than as aimed at going back to the "over-regulatory 1990s." (I know. I share your temptation to guffaw.)

With respect to the second proposal, which was that the law take account of more forms of liability than deposits alone in determining bank market share, this too should have been viewed as a welcome response on the part of the regulatory regime to changes in the banking market. When we liberalized interstate banking and branching in the mid-1990s, we recognized the danger of excessive market concentration that this posed -- a danger that threatened consumers with oligopoly and the financial system with moral hazard rooted in bank growth to sizes thought too big to allow to fail. We responded to that danger at the time by prohibiting any bank from acquiring more than a 10% market share in deposits -- which was huge already. What has changed since then is that banks take on more forms of liability -- that is, they borrow from more sources -- than those owed to depositors alone. And the 10% market share limits applied to deposits have not been extended to these deposit-substitutes. The consequence is growth up to "too big to fail" size behind the scenes, so to speak. Finance-regulatory innovation must keep up with financial innovation, and this is precisely what the President's proposal would do. Please keep this one especially in mind when I turn to the current Republican reaction.

Finally, with respect to the third proposal of last month, that financial institutions be required to disclose all of their contingent liability exposures -- i.e., all of their financial derivative transactions -- just as they already are required to disclose all of their non-contingent liabilities, this too has been long, long overdue. Consumers and other participants in the financial economy, not to mention risk regulators, cannot rationally assess the value of prospective transactions with financial institutions -- including the reliability of investments in or through such institutions -- or the degrees or loci of systemic risk in the financial system if they know what such institutions already owe and are owed, but not what they might come to owe or be owed by virtue of contracual commitments. And the same reasons that prompt us to require disclosure of the first kind of information argue for requiring disclosure of the second kind. While there might -- might -- have been some reason to let the derivatives markets develop undisturbed in the late 1990s as they were just beginning to burgeon, there was never any reason to equate "undisturbed" to "unmonitored." And there is in any event no rationale what ever for permitting financial insitutions to keep hiding that form of information today -- now that contingent liabilities of this kind have come to dwarf certain liabilities in notional value.

All three of these proposals are aimed directly at features of the financial and regulatory environment publicly suggested by Democrats and Republicans alike to have played important roles in the financial earthquake of 2008 and the need at the time to afford massive "bailouts" in order to prevent full scale economic calamity. And all three, again, originate with the universally respected Republican Chairman of the Federal Reserve Board during most of President Reagan's time in office, the man who broke the back of the stagflation of the 1970s -- Paul Volcker.  Recall a fourth proposal still on the cards -- the instituting of a new Consumer Financial Protection Agency charged with preventing abusive financial marketing practices associated with excessive subprime mortgage lending in the years leading up to 2008, long proposed by Harvard Law Professor Elizabeth Warren -- and you have in view a nice package of sensible finance-regulatory reforms that, at worst, fail to go far enough in reforming financial practice. (As I have argued here before and elsewhere, I don't think we'll avoid future crises absent a serious Fed commitment to return to the avowedly countercyclical role that it played during the tenure of William McChesney Martin, but I won't bang that drum again in this post.)

Now consider what Republican "strategists" are doing in response to the modest proposals of Warren, Volcker, and Obama nearly as quickly as they have been offered: Earlier this month, Republican strategist Frank Luntz issued a 17-page memo titled "The Language of Financial Reform." (More on it here: http://www.huffingtonpost.com/2010/02/01/frank-luntz-pens-memo-to_n_444332.html ) The language of the memo's title itself is telling: For one thing, it replicates that of an earlier memo that Luntz supplied Repuclicans as the health insurance reform debate began in earnest: That one was titled "The Language of Health Care." (You'll find it here: http://www.pnhp.org/news/2009/may/frank_luntzs_the_l.php ) For another thing, it makes plain from the get-go that Republicans are to concern themselves, not with financial reform, or the merits of various competing proposals for fianancial reform (the Republicans thus far have not proposed any), but with the way in which proposals are couched.

More specifically, Republicans are advised to "frame the final product as filled with bank bailouts, lobbyist loopholes, and additional layers of complicated government bureaucracy." They also are encouraged to play up a policy line pursuant to which "the bad decisions and harmful policies by Washington bureaucrats that in many ways led to the economic crash must never be repeated." The "bad decisions and harmful policies" are not specified, and most of us would presumably think the allusions made by such language to be to Bush era policies, but in Luntz's and other Republicans' world right now, "Bush" has become "Washington," and "Washington" is readily pinned, Pavlov-style, on Democrats now that they "control" Congress and the White House.

If you're already finding this chilling, please wait, there's more: In a particularly candid moment, Luntz goes so far as to say, "[p]ublic outrage about the bailout of banks and Wall Street is a simmering time bomb set to go off on Election Day ... Frankly, the single best way to kill any legislation is to link it to the Big Bank Bailout." And that, thus far, is about all we are seeing from Republicans when it comes to repairing the system of financial regulation under which our recent woes developed, festered, and erupted. The plan is simply to establish Pavlovian associations between reform proposals on the one hand, and the very harms against which those proposals are directed on the other. The second of the proposals described above, after all, is targeted among other things at bank size. And the first and third of the proposals are of course aimed precisely at putting an end to wrong-headed anti-regulatory policies embraced at the turn of the millenium just as real estate and associated financial markets were overheating.

Which takes us back to our theme. Surely it ought to be clear by now that there is little if any reason to suppose the Republican Party at present to be interested in the merits of any legislation proposed by the Obama Administration or the Democratic Caucus in Congress. And there is every reason to suggest that the Republicans' sole interest in any such proposal now is how best to bring it to pass that a substantial number of Americans unthinkingly associate it with something unpleasant -- and something unpleasant that, in all likelihood, was actually brought to us by the Republicans themselves as recently as a bit over a year ago.

What is the remedy for this kind of thing? Surely we need not tell the White House or the Democratic Caucus: It is to expose it. It is to expose it relentlessly -- to repeat and repeat the facts and the larger story that those facts embody, with the same, if not more, determination that the Republicans exhibit in relentlessly propagating their intentional falsehoods (yes, we know the briefer term for "intentional falsehoods"). There seems no reason, so far as I can tell, to do otherwise.  If anything, the White House and the Democratic caucus are under a duty to all of us to bring the digusting truth here into the full light of day, before today's Republican Party succeeds in doing what the Republican Party through 2008 nearly succeeded in doing -- bringing the country to complete financial and political ruin.

One of our nation's most distinguished and, these days, lamentably underappreciated jurists -- a lawyer who was also a prophet of financial regulation whose advice, had it been taken, might have forestalled the financial frenzy of the 1920s -- bequeathed us a very nice slogan that seems to me to bear repeating here, not only in connection with finance, but also with the political process. I'm referring of course to Louis D. Brandeis, who memorably observed in his classic tract, Other People's Money and How the Bankers Use It, that "sunlight is the best disinfectant." I humbly suggest that President Obama and the Democrats in Congress begin seriously shining the light on the source of our present public policy debates' shared toxicity: that is the fact that there actually seems to be only one party to these debates, while the other party is engaged in nothing less than a concerted effort at mass-psychological manipulation in order that it might regain power and resume business as pre-2009 usual.

Lobbying and Corruption

noreply@blogger.com (Neil H. Buchanan) — Fri, 19 Feb 2010 08:01:00 +0000

-- Posted by Neil H. Buchanan

Two weeks ago, The New York Times ran a news article by Eric Lichtblau under the headline: "Lobbying Imperils Overhaul of Student Loans." In the article, Lichtblau describes an Obama administration proposal (already passed by the House) to save federal money on subsidized student loans, and he explains how the lenders who currently enjoy the subsidies that the proposal would recapture are fighting back with a lobbying blitz. The article is very well-written and informative, a textbook example of reporting without editorializing.

Still, there is something vaguely creepy about the tale that Lichtblau tells. His story boils down to this: (1) There was a proposal to save money, (2) The affected industry began lobbying Congress, so (3) The proposal now might fail. Readers might wearily shrug their shoulders and think, "What else is new! Of course the lobbyists will win." That was certainly my first reaction. As I have thought more about this, however, the underlying logic has become more and more difficult to fathom. More on that in a moment.

But first, it is important to understand just how simple the underlying issue is. Normally, if a lender faces a higher risk of default on a loan, they will want either a higher interest rate from the borrower, some kind of collateral, or a guarantee or cash from a third party. Therefore, one could imagine lenders refusing to make affordable loans to many college students, given how iffy repayments are on these unsecured loans, and given that many students lack a backer with sufficient resources.

The problem is that the federal government solved the lenders' problem twice. The program that the Administration wants to end has the federal government paying lenders to make student loans, even though the loans are guaranteed by the federal government. The lenders thus face no losses from defaults, but the federal government pays them to make them more willing to put up with those (nonexistent) default losses. Sweet deal! Eliminating the subsidy would save an estimated $80 billion or so over 10 years, money that the Administration would put toward expanding the availability of student loans.

The industry, of course, has a standard set of bogus arguments to justify continuing its free ride. They run from the usual "government takeover" meme, to the call to "think of the jobs," to the humorous idea that students get "personal service" from private lenders. It is the usual story, with talented people being paid to spin a story that cannot credibly be spun.

The part of this story that still nags at me, however, is the straight line from lobbying to the bill being in danger of not passing in the Senate. I can certainly imagine that there are plenty of Republican Senators who would oppose this plan, for any number of reasons. What I cannot understand is how the lobbying is changing anyone's mind. Who could understand the situation in the first place enough to favor the plan, but then change their mind when a lobbyist from the affected parties tells them that they should oppose it?

Maybe a few senators simply had not thought deeply enough about the issue before now, but now that they have thought and prayed about it, they have come to the conclusion that the subsidy is a good idea and must be continued. Color me skeptical.

Another answer is the old "jobs in your district" argument. Like the military-industrial complex, the lending industry openly plans to make Senators believe that jobs will be lost at home. (Interestingly, but unsurprisingly, a former Clinton administration official is now the lead lobbyist for the lenders.) Maybe enough Senators will decide that they are not willing to risk the bad press that might ensue if some lenders' employees are laid off (even though the best bet is that those people would not be laid off at all but would, instead, be kept on to administer the expanded program envisioned by the President).

In any case, as Lichtblau's article points out, the lenders are not content to rely solely on baseless arguments and contrived town-hall-style meetings. They also give money in equal measure to politicians from both parties, to the tune of $2.1 million in 2009 alone. The largest lender, Sallie Mae, also spent more than $3 million on lobbying in each of the last two years.

Politicians insist, of course, that they cannot be bought. They simply receive money from people with whom they already agree (which is why the contributor wants them in office). If pressed, they will sometimes suggest that the contributions lead to "access," which apparently means that they decide whom to see based on who has given them money. This explanation is disturbing in its own right, of course, given that selling access to someone necessarily implies that someone else is being denied access. (If there were enough access for everyone, the price would be zero.)

How does any of this fit into the battle over the student loan subsidies? Again, we are not talking about the people who were already going to vote against the bill. What matters is the apparent possibility that some Senators might change their votes in the face of the lobbying blitz. Those Senators, if they exist, must either be willing to listen only to those people who can afford a lobbying blitz -- and then change their votes after listening to the lobbyists' silly arguments -- or are at least indirectly on the take.

I readily confess that my musings on this might seem naive. Perhaps they are. What bothers me is that being non-naive (but not so jaded as to imagine that politicians can be bought) requires us to accept the idea that "lobbying" can kill any bill, even one that clearly is (as Obama put it) a "no-brainer." Again, we are not supposed to believe that money directly buys Senators' votes, but the alternative explanations are more than a bit of a stretch. The strengths and weaknesses of the arguments are so clear that the mechanisms of influence become more apparent.

The point is not that this is a smoking gun -- proof of a quid pro quo, cash for votes. Rather, the point is that we just nod and accept the idea that lobbyists regularly kill bills, but we rarely consider the process by which they succeed. If this is not corruption, what is?

Individualizing Victims of Delegated Abuse

noreply@blogger.com (Sherry F. Colb) — Thu, 18 Feb 2010 08:40:00 +0000

Posted by Sherry Colb

In my column for this week, I discuss a woman (who goes by the pseudonym of "Amy") who was, as a child, a victim of child molestation. The perpetrator, her uncle, filmed his abuse of her, and the results have been circulating among pedophiles for over a decade. With an attorney's help, Amy has been seeking restitution from the people whom police have found in possession of child pornography in which she appears. Some courts have been quite receptive to her pleas, while others have not. My column focuses on whether it is just to require people in possession of child pornography to pay compensation to the children or former-children who appear in that pornography.

In this post, I want to explore the relation between consumers of the products of abuse and the abuse itself. I suspect that many pedophiles who purchase and watch child pornography do not consider themselves remotely as culpable as the people who abuse the children in the pornography (assuming they give much thought to culpability at all). Several law professors, when asked about Amy's case, have concurred in this judgment and have suggested that it takes things a bit far to hold consumers personally responsible for victimizing the children molested to create the pornography.

As I discuss in greater depth in my column, it is somewhat odd to encounter this position (that consumers of child pornography are either innocent or unrelated to the sexual abuse of the children involved), given that possession of child pornography is a crime (and given the reasons that possession is a crime). Nonetheless, the view that people are less culpable (or not culpable) when they delegate misconduct to someone else (through purchase and consumption) is quite common.

Most people, for example, view the infliction of unnecessary injury and death on animals to be unjust and culpable. When they hear about what happens to animals on a farm or in a slaughterhouse (no matter how allegedly "humane" the farm or slaughterhouse), many people are outraged and horrified. They find it disgusting that anyone could inflict such suffering on innocent creatures. Yet they fail to see how their consumption of animal flesh and/or animal products is equally culpable. They feel that someone else -- a slaughterhouse worker or a dairy farmer -- is the one who causes the screaming and bellowing, who cuts throats and ends the lives of babies, adolescent, and adult animals. Once the consumers come into the picture, people imagine, the suffering and death of the creatures whose bodies and bodily secretions they eat and wear have already happened.

Consumers of child pornography (and their defenders) apparently believe the same thing. Whoever sexually abused the child has perhaps done something wrong, but once the material exists,watching it is "after the fact" and cannot possibly be comparable to the production of the material.

People who wear the skin of killed animals and drink or eat the dairy and egg products that come from the slaughter of baby animals are often gentle and kind when they encounter a specific animal (even a calf or a chick). If they see someone being cruel to an animal, moreover, some of these same people might well intervene and try to stop it. This happens, in part, because people do not viscerally experience the very real connection between buying a dozen eggs and killing one-day-old baby chicks. The individual animals who suffered and died have become invisible, in a way that they would not be if people could see them, alive, one-at-a-time.

The consumption of child pornography might seem distinct in that viewers actually do see the children being abused; that, in fact, is the entire point of the endeavor. Yet, in an important sense, the children are also invisible to the perpetrator who watches child pornography. They are sources of prurient pleasure, not living, breathing, and suffering innocents with likes, dislikes, joys, and fears. They are simply instruments through which the viewer of child pornography becomes aroused rather than individuals with their own inherent value.

And the converse is true of animal consumption as well. The animals whose flesh and bodily products people consume are not truly invisible either. Milk containers typically have (highly deceptive) drawings of cows and calves grazing in the field, so people know that cows are forced to provide milk (and perhaps even know the horrors of how this is accomplished in the real world). The meat section of a grocery store has corpses in it. Dissociating the corpses from the live animals who they once were is no less an act of denial than it is in the case of a viewer of child pornography. And as in the case of child pornography, the victim who is "consumed" has already been violated, but the consumption represents a clear expression of demand for more violation.

Most of us, of course, do not consume child pornography, while most of us do consume animal products. What this means, for practical purposes, is that if you believe it is wrong to inflict unnecessary pain and death on animals (i.e., when the goal is to satisfy appetites than can be easily and more nutritiously satisfied without using animals), you are morally obligated not to consume animal products, just as you are morally obligated not to consume child pornography, if you believe that violating children is wrong.

Going vegan is not supererogatory (in the way that campaigning for tougher laws on child molestation might be). It is simply refraining from harm, not participating in gratuitous violence against sentient beings, much like refraining from the purchase of child pornography.

Where to Count Prisoners

noreply@blogger.com (Michael C. Dorf) — Wed, 17 Feb 2010 16:55:00 +0000

By Mike Dorf

With the decennial census now under way, a familiar practice has again (and rightly) come under fire: The census counts prisoners as residing wherever the prison in which they are incarcerated happens to be, rather than in the communities from which they originate. However, in nearly all states, prisoners aren't allowed to vote. As a result, the count is depressed for disproportionately poor and minority communities from which prisoners disproportionately come, while the disproportionately non-minority, disproportionately rural communities in which prisons are located get a population bonus. Here I'll try to clear up a little bit of the confusion in the public discussion of this phenomenon.

In 2006, Congress asked the Census Bureau to explore the feasibility of counting prisoners at their prior homes rather than in prison. The Census Bureau produced a document raising a host of objections. The biggest problem would be the need to meet with and interview individual prisoners but also, the Census Bureau would have no uniform way of verifying the home addresses or even of defining home address.

With due respect, that was a misleading answer because the census data serve multiple functions. At the federal constitutional level, they are used to decide how many seats each state gets in the House (and thus also how many Electors in the Electoral College). Congress has interpreted the "actual Enumeration" language of Article I, Section 2 to forbid statistical sampling with respect to this core constitutional function. However, the same statute empowers the Census Bureau to use sampling for other purposes. Accordingly, the practical difficulties of conducting a non-sampling enumeration of prisoners should present no obstacle to the Census Bureau's providing estimates of local populations once prisoners are allocated to their prior residences.

That's significant because the numbers used for inter-state allocations of House seats need not be used--or can be supplemented by other data--in making allocations of benefits and, the focus of the current discussion, representatives within states. Here the relevant limits are the Voting Rights Act and equal protection limits embodied by the one-person-one-vote apportionment rule. To my knowledge (and I admit that I haven't researched this piece thoroughly), neither Congress nor the Supreme Court has spoken to the question of whether sampling-based data can be (or must be) used for these other voting-related purposes.

If I'm right about that, then a state could choose to allocate prisoners to their homes for purposes of allocating representatives among districts--so long as it had a reasonable basis for doing so, and sampled data would be such a basis. (According to a 2001 Harvard Law Review Student Note, a few states forbid the use of sampled data for internal purposes.) States that wanted to do so could probably generate the necessary data on their own, but they would do a lot better if the Census Bureau helped them.

AG Holder and the Inevitability of Politicization

noreply@blogger.com (Michael C. Dorf) — Tue, 16 Feb 2010 11:00:00 +0000

Consider the juxtaposition of two recent profiles of AG Eric Holder. Writing in the current New Yorker, Jane Mayer describes how Holder "has tried to depoliticize" decisions about such matters as how and where to try terrorism suspects. Although she notes that Holder is not politically naive, she does portray a struggle between Holder's view and the political shop in the White House (read Rahm Emanuel). Meanwhile, an article in yesterday's NY Times may suggest the exact opposite by its title--"After 9/11 Trial Plan, Holder Hones Political Ear." However, the substance of the Times article conveys much the same picture as Mayer's portrait in The New Yorker: despite his extensive political experience, Holder is temperamentally disdainful of politics. In the wake of the Obama Administration decision not to try KSM in NYC, Holder is trying to be more pro-active politically, but it hardly comes naturally.

Here I'll express skepticism about the possibility of maintaining an apolitical approach once one has been criticized on political grounds. Holder (backed by Obama
for now but perhaps not for long) appears genuinely annoyed and surprised by the fact that various Republicans are criticizing his preference for civilian trials of terrorist suspects when many of those very same Republicans supported the Bush Administration's similar actions. Notwithstanding the attention to Gitmo and military tribunals, under Bush many more people were tried and convicted in civilian court than before military tribunals, and most of the former were read their Miranda rights. This comparison (made in the Mayer article) is not entirely fair, of course, because most of the Gitmo detainees didn't get any trial at all. Still, as Mayer notes, the civilian courts have tended to give harsher penalties for terrorism convictions than the military commissions have. And so Holder concludes that his critics are simply grandstanding when they accuse him and Obama of "not realizing we're at war."

Holder is right about that, obviously. But once the political point has been made, it's virtually impossible for Holder to defend what he's doing as apolitical. Sure, Rudy Giuliani et al are saying things now that are inconsistent with what they said during the Bush years, but once the right advances the war-means-use-military-commissions-rather-than-civilian-courts-and-waterboarding-rather-than-Miranda-warnings meme, Holder's the-choice-between-security-and-our-values-is-a-false-choice response will inevitably be viewed as the other side of a political argument.

How do I know? Because this pattern was set in the earliest days of the Republic. Even before the Washington Administration came to an end, the people who came to be known as Federalists--especially John Adams and Alexander Hamilton--viewed the emerging Democratic-Republican Party of Thomas Jefferson as inappropriately partisan. The Federalists thought that Jefferson was betraying the constitutional ideal, expressed by James Madison in his Federalist days, under which "faction" was a vice, not a virtue. It must have been especially infuriating for the Federalists to see Madison among the leaders of the D-R's.

The Federalist response was to try to portray the D-R's as a faction that was fomenting division. But it didn't work, or rather, if it did, the Federalists were perceived as just as much of a faction. Was that fair? It's very hard to answer that question without some reference to the underlying merits of the issues that divided Federalists and D-R's. With what we now regard as extreme states' rights views (as per the Virginia and Kentucky Resolutions), not to mention disproportionate support among slaveowners and their allies, it's hard to see the D-R program in an especially sympathetic light. But neither do the Federalists look so wonderful in retrospect. They were shockingly (and openly) elitist by modern standards, and no friends of civil liberties (as per the Alien and Sedition Acts). Hence, seen from the distance over two centuries, it's easy to understand the political fight between Adams and Jefferson as essentially a bare-knuckles but sincere disagreement over the best direction for the country (as each eventually came to think in retirement).

So, can we expect that two hundred years from now, historians and legal scholars will view Dick Cheney and Eric Holder as protagonists in a tough-but-honest debate over how best to protect national security? We'll have to wait and see.

New Blog - And a Thought on the Failure of the Totalitarian Left

noreply@blogger.com (Michael C. Dorf) — Mon, 15 Feb 2010 07:09:00 +0000

By Mike Dorf

A new blog, Religiousleftlaw.com, has just been launched by three of my Cornell colleagues--Steve Shiffrin, Eduardo Penalver, and DoL contributor Bob Hockett--along with sometime DoL commenter Patrick O'Donnell and prominent con law scholar Michael Perry. Although I have previously expressed skepticism about the ability of religious language to win over the great middle of Americans who profess some degree of faith, I could be wrong about that, and in any event, the blog promises much of interest to progressives regardless of their religious views and to everyone interested in ideas. Kudos!

Now a short comment on a post on religiousleftlaw.com by O'Donnell entitled Marxist & Buddhist?. O'Donnell provides an extended quotation from a 1993 speech by the Dalai Lama in which he explains his goal of reconciling Buddhism and Marxism. There is much in what the Dalai Lama says here with which I agree--and that shows him to be a very sophisticated thinker--but one point which, I think, substantially misses the mark.

The Dalai Lama makes the rather familiar argument that the nominally Communist regimes of the 20th Century--singling out the USSR, China, and Vietnam--were not "really" Marxist but essentially nationalist. Their totalitarian excesses, he goes on to say, were a product of having "placed too much emphasis on the need to destroy the ruling class, on class struggle, and this cause[d] them to encourage hatred and to neglect compassion." Although the Dalai Lama does not invoke the highly egalitarian social democracies of northern Europe, the contrast is at least tacit: Scandinavian social democrats did not become totalitarian because they did not demonize the wealthy.

Stated that way, there is at least a surface plausibility to the Dalai Lama's analysis. Certainly the worst excesses of 20th Century Communist regimes--e.g., Pol Pot's murderous attacks on anyone with an education, Stalin's attacks on kulaks, the Cultural Revolution--can be fairly attributed to something like hatred of the well-to-do. But that simply raises, rather than answers, the question of why these impulses arose and were vented in the regimes in which they were. To my mind, there are two possibilities.

The answer that might appeal to an Orthodox Marxian would note that the most totalitarian nominally communist regimes were precisely those that, per Marx, were least prepared for Marxism--namely, peasant societies rather than industrialized bourgeois societies. In this view, 20th Century Marxism failed because it arose in the wrong places.

An alternative view would simply note that the relative success of social democracies--and certainly their gentleness relative to Communist regimes--was a product of the fact that they were/are democracies. This view (which I myself take) is quite difficult to swallow for a Marxian, because democracy (or what Marx would have called bourgeois democracy) is itself supposed to be a mere unstable phase en route to the dictatorship of the proletariat.

Perhaps President Obama can ask the Dalai Lama whether he still thinks well of Marxism in theory, when they meet on Thursday!