Tuesday, August 04, 2015

Can Anything Happen in U.S. Politics Without a Forcing Event?

by Neil H. Buchanan

The annual scholarly conference of the Southeastern Association of Law Schools (SEALS) was held last week in Boca Raton, Florida.  As has become her custom, Professor Jennifer Bird-Pollan of the University of Kentucky Law School organized a number of tax-related panels, including the now-annual roundtable at which a dozen or so tax professors discuss issues large and small related to our field.  Here, I will summarize and expand on the comments that I made at this year's roundtable, focusing on what I think is an interesting question about the politics of tax and budgetary policy making in the United States in the 21st Century.

[Before I turn to those remarks, however, I do want to respond to a passing remark that Professor Eric Segall reported in his Dorf on Law post yesterday.  Professor Segall, summarizing a SEALS panel on which he participated last week, made some very interesting points about Supreme Court transparency.  I was troubled, however, by one professor's "suggest[ion] that perhaps transparency was not always a positive force. He asked whether any of us would openly admit that we were sitting in this delightful conference room in this beautiful hotel in Boca Raton, Florida, discussing transparency mostly or fully because we like school-paid boondoggles?"

[I get the joke, but it is a dangerous one.  The fact is that the SEALS administrators figured out some time ago that one could hold a very good conference in a Florida location in late July and early August at dirt-cheap rates.  Airfares and rental car rates are similarly reduced during the off season.  Who, after all, wants to be in Florida during the hottest days of summer?  Apparently, not many.  So few, in fact, that it would have been more expensive for my law school (based in D.C.) to pay for me to go to a conference in Pittsburgh.  (I know, because I paid out of pocket for a family trip to Pittsburgh earlier in the summer.)  It is true that the facilities that host these conferences feature 1920's-era over-the-top decor, but the in-season chumps pay for that.  We get a deal.

[I normally would not have bothered to comment on that throwaway line, but in the current environment, we do no one of good faith any favors by making untrue comments about boondoggles or other such incendiary comments.]

Now, what about the politics of U.S. tax law?  My motivating question was based on the observation that the job description of tax law scholars is to critique U.S. tax law, sometimes to defend it from others' critiques, but in general to try to improve the law.  Because "improve" has many components, this is a full-time job.  This basic job description also applies to scholars in other fields, but here is where the tax story becomes unique.  I asked: Are U.S. tax scholars now conjuring up suggestions for improving the tax laws in a world where there are no longer any "forcing events," such that our suggestions will almost certainly go nowhere?

A forcing event is something that essentially gives political actors no choice but to do something, rather than continuing to do nothing -- which, in this context, is not the result of the various actors wanting to do nothing, but instead flows from classic political gridlock.  When a forcing event looms, everyone knows that muddling along is no longer possible.

The biggest, most recent forcing event was the expiration of the Bush tax cuts at midnight on December 31, 2012.  Because of a political game in 2001 that resulted in the Bush tax cuts being shoehorned into a ten-year budget frame (which President Obama had extended for two years), the status quo ante loomed on New Year's Eve in 2012.  That status quo ante would have meant very large tax increases for everyone, most especially those at the top of the income and wealth distributions.  The estate tax in 2001, for example, had an exemption amount of under one million dollars, and the marginal estate tax rate was 55%.  (To be clear, I do not view those numbers as unreasonable for the estate tax, even today, but that is beside the point.)

Nearly everyone in Washington hated the prospect of the tax laws reverting to their 2001 state.  For Republicans and many Democrats, the problem was that rich people were going to see their taxes increase.  For others (including, as far as one could tell, President Obama), the biggest issue was that the still-weak recovery simply could not stand the negative jolt of anti-stimulus that the expiration of the Bush/Obama tax cuts would have inflicted on the American economy.

As a result, people were forced to act.  I still think that the Obama Administration was foolish to treat January 1, 2013 as a do-or-die date, because they probably could have achieved much better outcomes by allowing the laws to revert, and then legislating against an unacceptable new reality, with everyone actually feeling the results of inaction.  Perhaps I am wrong, however.

In any event, the forcing event had its intended effect, and a big new law was passed.  That law, however, contains no forcing events, with nearly everything now "permanent legislation."  No expiration dates mean that, for example, the people who think that the estate tax is still too onerous -- even though it now has a combined exemption level just short of $11 million, with annual adjustments for inflation, and the tax rate on the amounts above that exemption amount is 40% -- have no surefire way to bring the other side to the table.

As a result, the current presidential candidates' various promises to make big changes in the tax law are even more silly than usual.  There is simply no reason to imagine that a President Paul could convince a divided Congress to adopt a 14.5% so-called Flat Tax, other than through the normal channels of deal-making and compromise that he and his colleagues scorn.

Not all forcing events have their intended effect.  The deal that ended the first debt ceiling-related showdown in August 2011 included a series of procedures (remember the Supercommittee?) that resulted in the imposition of "the sequester" -- cuts that were supposed to be so horrible, so arbitrary, and so widespread (threatening every legislator's most sacred cows) that no one could possibly tolerate them.  The problem was that many legislators of the Tea Party variety view any government spending cut as a good cut, and the sequester cuts went into effect.

Speaking of the debt ceiling, Republicans clearly viewed that odd variety of legislative cancer as a never-before-used forcing event, and they have tried to use it to that effect.  In 2011, they succeeded.  In subsequent years, not so much.  Instead, they are now back to talking about shutting down the government again, this time to try to force the Democrats to agree to cut all funding for Planned Parenthood.

Both of these strategies -- threatening a catastrophic default by refusing to raise the debt ceiling, and threatening to shut down the government -- are attempts to craft what amount to improvised explosive devices to try to force action.  Because these IED's are so destructive and so politically unpredictable, however, they are rightly viewed as unacceptable by all but the craziest people in Washington (a group that can sometimes control the Republicans' agenda in Congress).

Although President Obama's stare-down strategy has worked thus far in resisting debt ceiling-related hostage demands, I continue to think that the President would do everyone a favor by recognizing that this particular forcing event is not a forcing event at all.  Or, perhaps more accurately, he should announce that he will not allow default to happen, which will make it clear that the forcing event is purely political -- Republicans demanding that he violate the Constitution, in order to achieve spending cuts that they cannot achieve legislatively.

Are there any non-governance-related forcing events?  In my remarks at SEALS, I noted that the surprise budget surpluses at the end of the Clinton presidency acted as something of a forcing event.  The Bush tax cuts themselves received a major boost when then-chair of the Fed Alan Greenspan raised the specter of a world without any Treasury bonds, after the annual surpluses had caused the Treasury to retire all of its bonds.  As good as that might sound to the debt fear-mongers, Greenspan rightly pointed out that T-bonds are effectively a global currency, and although financial markets would surely come up with some kind of alternative in their absence, the transition would be needlessly expensive.  Better to have the government maintain a pool of debt that grows with the economy.

Once the deficit/debt situation had swung in the other direction by 2009, the deficit scolds gleefully tried to use pessimistic predictions of unsustainable debt -- including the threat of attacks by so-called bond vigilantes, who would dump U.S. debt and precipitate a crisis -- as a forcing event.  There were many reasons why that was all wrong, of course, both as a matter of forecasting and in terms of the proposed solutions.

Happily, medical cost inflation has moderated, so that the forecasts for long-term federal debt are now anything but scary.  On the other hand, those forecasts are not rosy, either.  The Congressional Budget Office's latest forecasts have the debt-to-GDP ratio staying essentially constant for a couple of decades -- in other words, far beyond the range within which economic forecasts are in any way believable -- and then trending up a bit.  This leaves both the deficit scolds and people like me without a forcing event.  The scolds cannot say, "Act now, or we'll all be destroyed by a mountain of debt," but I cannot say, "The debt situation is now spiraling out of control in the other direction, requiring immediate action."  We actually have to justify our policy preferences on the merits.  (Horrors!)

As Professor Bird-Pollan reminded us during the discussion on Sunday, the last big tax reform bill was passed in 1986.  That bill, which is now generally held up as a model of bipartisanship and sensible compromise, was passed (as BYU Law Professor Clifton Fleming pointed out) during the peak of President Reagan's popularity (immediatley before Iran-Contra and other matters turned the latter years of Reagan's second term into a mess).  And it so happened that the Democratic tax economists of that era were in close agreement with their Republican counterparts regarding what constituted good tax policy.  (Again, despite the generally rosy view of the 1986 bill, I should emphasize that I am still a dissenter from that consensus.)

In any event, the current situation is one in which the overall budget picture presents no forcing events, nor does tax legislation itself.  The only strategies remaining are: (1) the annual budgeting process, in which the threat of shutdowns is an extreme and foolish (but procedurally legitimate) strategy to force action, and (2) refusal to increase the debt ceiling, which is a more disastrous and entirely illegitimate strategy to force action.

I am not usually one of the people who wrings his hands and says that the problem with American politics is that people cannot come together and compromise.  In part, that is because such calls usually involve falsely claiming that both sides are equally to blame for being "too partisan."  Viewed in the light of my comments above, however, it is certainly true that the taxing and spending laws in the U.S. are stuck.  They are stuck because one side has pulled very far to the right, but they are nonetheless stuck.  And short of a Republican-instigated budgetary disaster of one sort or another, the only way out of this standoff is for the next election to be a sweep for one side or the other.

Monday, August 03, 2015

Supreme Court Transparency (Or Lack Thereof)

By Eric Segall

On Wednesday of last week I co-moderated (along with Eric Berger) a panel on Supreme Court transparency at the Southeastern Association of American Law Schools (SEALS) conference. It was a fascinating discussion covering mostly the lack of cameras at the Supreme Court but also the Justices’ anonymous votes on granting or denying certiorari, the Court’s recusal practices (or lack thereof), and the lack of rules concerning their taxpayer-funded papers. Diverse views were expressed and, to my surprise, there were numerous thoughtful folks in the room not altogether sure that more transparency in the Court would actually be a good thing. I want to discuss a few of the highlights here though I cannot do justice to the entire conversation.

Mark Graber of the University of Maryland got the ball rolling by suggesting that perhaps transparency was not always a positive force. He asked whether any of us would openly admit that we were sitting in this delightful conference room in this beautiful hotel in Boca Raton, Florida, discussing transparency mostly or fully because we like school-paid boondoggles?

Mark argued that the public may obtain the Court’s written opinions as soon as they are announced, that the written transcripts are provided shortly after oral arguments, and that during every public day at the Court there are numerous journalists who can report on what transpired. He didn't see what television would add and also dared anyone to suggest anything that television cameras has improved. He didn’t like my “hockey in HD” response, suggesting that the NHL was all about fights and I should go to college hockey games to see the real sport played.

Mark Kende of Drake agreed tentatively with Graber and suggested that perhaps we should study other countries such as Brazil and see what their experiences have been with cameras. Mark K. showed a bit of concern that a Justice on Brazil’s highest court has amassed quite a cult following due partly to his being on television and could that happen here and would that be a good thing? Sonja West of UGA later mentioned that virtually all fifty states and numerous foreign countries have in fact used cameras in courtrooms with universally positive experiences.

Mark K. also suggested, and numerous folks including my co-moderator Eric Berger agreed, that the real problem of Supreme Court transparency that we should be concerned about is the consistent failure of the Justices to give adequate reasons (including admitting the weaknesses of their own arguments and the strength of opposing arguments) in their final written opinions. Mark K. opined that none of the issues we were discussing would be able to solve that problem. I agreed that was true but also said that more transparency might alleviate other problems, such as the issue of aged and infirm Justices.

Mark Tushnet of Harvard observed during his opening remarks that some of the Justices seemed to have open minds on allowing cameras in the Court during their confirmation hearings only to change their positions after they ascended to the bench. He used this phenomenon, along with life tenure and the fact that the Justices are rarely disagreed with in person, to suggest that some of them (maybe most, but not all) resemble “narcissistic children.” Mark T. pointed out that the Justices are often told (and possibly come to believe) that they are the center of the universe (just like children believe), but they also may not be sure that they deserve to be. This insecurity, along with fear that their colleagues may misbehave, Mark T. suggested, might at least partially explain the Justices’ refusal to allow cameras in the Court.

Mark T. also suggested, in response to my complaint that cert. votes are secret, that if the Justices had to reveal those votes, they would simply take a private, straw vote first and for those cases where there were four or more votes to hear the case, they would then unanimously agree publicly to hear the case. After the meeting, Corinna Lain of Richmond suggested that she thought Mark T. might be right but that there were examples of Justices making a big point to dissent from the granting or denial of cert. (think Brennan and Marshall in death penalty cases), and therefore maybe the straw vote ruse would not work.  I was thinking that, if Mark T. were correct that the Justices would evade a requirement that cert. votes be made public in the manner he suggested, perhaps he is also right about the Justices acting like “narcissistic children.”

I had suggested at the beginning of the discussion that there is a presumption of transparency in a representative, constitutional democracy. Therefore, since the Court’s hearings were already public, and C-Span was ready, willing and able to televise them, there would have to be very good reasons not to show them. I also said that no one knows whether adding cameras will produce good or bad results and therefore the tie should go to transparency. Other folks chimed in that there is something positively good about seeing as opposed to listening to the arguments, especially in our culture where people are used to visual learning. Corinna told an amusing anecdote about her mother watching congressional hearings on C-Span because she wanted to learn “how government works.” Corinna then suggested that maybe putting cameras in the Court could actually have some negative unintended consequences.

Akram Frazer of the Duncan School of Law suggested that there was a strong value in actually seeing the Justices at oral arguments and decision days that reading cold transcripts or hearing audio transcripts could not duplicate. Sonja mentioned that it is unlikely many folks who are not avid Court watchers would take the time to read the transcripts or listen to the audio but that a lot of people might well watch Court proceedings on television. To support Sonja, Akram recounted that he once saw his mother turn off a Charlie Rose interview when the video failed even though the audio was clear as a bell. A few of us suggested that Akram’s and Corrina’s moms should meet.

Bill Araiza of Brooklyn argued that we should be very clear what the goals of transparency are before we add cameras to the Court or make cert. votes public. He pointed out, for example, that oral arguments are just a small snapshot of the work of the Justices and the general public might give them undue weight if they saw them on television. Bill didn’t take a strong position about cameras but was concerned that allowing them would in the end provide less rather than more (or accurate) transparency.

Lynne Rambo of Texas A & M made the point that as things now stand sophisticated Court watchers have many ways of accessing information about the Court through blogs, the Court’s website. etc., but most of the public doesn’t have those tools. Sonja buttressed that point by pointing out that most Americans still don’t know that on the last day of this year’s term, a full weekend after the same-sex marriage decision, Justice Scalia gave from the bench (out of seniority order) a concurrence in the death penalty case that was both rambling and included more invectives about the same-sex marriage decision decided the previous week. Most Americans still don’t know about that speech because the Court’s proceedings were, of course, not on television.

Lynne then presented an utterly persuasive (to me) account of the broken recusal process at the Court. Each Justice decides for himself or herself with absolutely no review by anyone whether his or her participation in a case is appropriate. Moreover, in the entire history of the Court, only three times has a Justice filed a written response to a recusal motion. Chief Justice Roberts, Lynne pointed out, defended this complete lack of process in his 2011 end of the year report of the Court (distributed annually at 6:00 on New Year’s Eve), by simply saying something to the effect of “I trust my fellow Justices and so should you.”

I came away from the discussion with two major thoughts. First, the “trust us” approach of the Justices on many of these issues should be quite troubling. I have pointed out before on this Blog that the Justices are governmental officials exercising coercive power. We normally try to put mechanisms in place to protect the public from secret government activities by their leaders. The Supreme Court should be no different, especially in light of life tenure. In fact, Mark G. made the point during the discussion that many of the complaints about the lack of transparency at the Court are really placeholders for opposition to life tenure. I think there is a lot of truth in that observation. We are, after all, the only country in the world where Supreme Court Justices serve for life.

Second, hyperbole aside, Mark Tushnet’s observation that at least some of the Justices exhibit the qualities of “narcissistic children,” should be taken seriously in that the Justices do occupy a unique office (these next views are my own, not Mark’s). The Justices cannot be fired absent the commission of a crime so they are not accountable to anyone, and when five of them agree, they have virtually unreviewable power. It would take a person of enormous character to both not be “spoiled” by such a position and a person of enormous ego to think they actually deserve such a position. Thus, it is not surprising that they are conflicted between wanting to be seen (the ego part) and not really wanting to be seen (the “I don’t really deserve it part”). But, they are public officials and there should be a strong presumption of transparency and openness in how they perform their jobs. With no cameras in their courtroom, secret votes on which cases to hear (and why), no rules on when or even if their taxpayer-funded papers become public, and no review of individual decisions whether or not serving on a case would be improper, we are worlds away from an open and transparent Supreme Court of the United States.

Saturday, August 01, 2015

Cecil, Hercules, Leo, and Billions of Unnamed Animals

by Michael Dorf

Amidst the furor over dentist Walter Palmer's killing of Cecil the Lion, on Wednesday a New York trial court judge ruled against the Nonhuman Rights Project's habeas corpus action on behalf of two chimpanzees--Hercules and Leo--being held as research subjects by Stony Brook University. In this post I shall discuss two possible readings of the events as seen from the perspective of someone (i.e., me) who thinks that just about all human exploitation of nonhuman animals is unjustified: One possibility is that in extending compassion to a (particular) lion and chimps, people move towards seeing other sentient nonhumans as deserving of similar respect; the other is that particular characteristics of lions, chimps, and certain other animals end up reinforcing the distinctions that people draw between the animals that may be used and those that should be treated better.

I assume that most readers have been following the Cecil story closely enough that I don't need to recap it, so let me begin with a short summary of the Hercules/Leo case. The Nonhuman Rights Project (NhRP) and its president, Steven Wise, have filed a number of habeas corpus actions in New York State on behalf of captive chimpanzees. Thus far, all of these cases have been rejected, although there remains the possibility of further appeals. Wednesday's decision by Judge Barbara Jaffe was a mixed bag for NhRP.

On the positive side, Judge Jaffe recognized the legal standing of NhRP to seek relief for the chimps; by contrast, federal courts have denied third-party standing claims (leading case here) on behalf of nonhuman animals under federal law. In addition, Judge Jaffe described NhRP's claims sympathetically, even quoting Justice Kennedy's language in Lawrence v. Texas that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." She nonetheless rejected NhRP's claim that chimps should be treated as persons for purposes of habeas corpus on two grounds: first, that she was bound as a matter of precedent by a ruling (which I criticized here) from an intermediate appellate court in another NhRP case on behalf of chimps; and second, that the dramatic change in the law sought by NhRP should come, if at all, from either the NY legislature or NY's highest court.

I have previously expressed misgivings about NhRP's strategy (here and here), partly on the ground that I thought the cases premature, even as I acknowledged that lawsuits that fail in the courts can succeed in the court of public opinion. I am cautiously optimistic that something like that may be happening with respect to Hercules and Leo. Apparently in response to the adverse publicity brought by the NhRP lawsuit, Stony Brook has announced that it no longer intends to experiment on them.

I have also worried that, by framing its claims for relief for chimps based on their strong similarity to humans, NhRP's legal strategy could be self-limiting. Judge Jaffe's opinion expressly compares chimps to beloved family pets, which is arguably a step in the right direction. Yet recategorizing chimps as animals we love rather than animals we exploit in experimentation does little to challenge animal exploitation itself. Human beings have long shown that they can think of some animals (e.g., dogs and cats) as family members even while they think of other animals with no relevantly different capacities as sources of food (cows, chickens, pigs, goats, fish) or clothing (cows, sheep), or as appropriate research subjects (rats, mice, monkeys). They can even turn on or off their classification schema based on whether a particular animal is in fact someone's pet or something else. Think of the woman selling rabbits as "pets or meat" in Michael Moore's Roger & Me or the fact that some dogs and rats are pets, while others are experimental subjects.

As I noted when first raising this subject, I understand that NhRP argues that the advanced intellectual abilities of chimps are offered as a sufficient condition for legal personhood, not as a necessary condition. And I was pleased to hear Wise reiterate that point in response to a question from Mariann Sullivan during an interview on The Animal Law Podcast. (The interview was conducted before Judge Jaffe's ruling. A follow-up interview was released yesterday, after the ruling.) Nevertheless, even if Wise and NhRP only choose to emphasize the human-like capacity for autonomy of chimps because it fits the NY case law well--as he told Sullivan--lawyers do not control the impact of their legal strategy. NhRP may hope to use a ruling that chimps are persons, if they obtain one, as the first step in arguing that other animals are persons, but winning the right to personhood based on human-like-ness could stand as an obstacle to recognition for less human-like animals. It remains an open question.

Although I might reach different conclusions about how best to advance the cause of animal rights than Wise and NhRP do, I acknowledge that they have given a great deal of thought to the question. By contrast, most people who are outraged over Cecil are not animal rights activists of any sort. Their outrage is prima facie puzzling, given that the vast majority of them consume the products of animals no less deserving of life than Cecil. Many are probably hunters of deer and other animals, and even those who are not hunters do not, so far as I can tell, condemn all hunting.

In response to a Facebook post along the foregoing lines by a friend of mine, one of his FB friends responded that, at least for him, Cecil's case underscored the need to protect endangered species. Deer and farmed animals are not endangered, he noted, so there is no inconsistency in wanting to protect lions and other endangered species but not these other non-endangered animals. I have no doubt that the person who wrote that (whom I don't know IRL, as the kids say) was sincerely expressing his own motivation, but I don't think it stands up as a general explanation of the Cecil phenomenon.

Last Fall, the U.S. Fish & Wildlife Service proposed listing the African lion as an endangered species. Yet the pro-lion activism did not erupt until the killing of a particular beloved lion. To me, that suggests that most of the concern for Cecil is a concern for Cecil, not for lions in general. As Professor Colb explained last year in an insightful Verdict column about a Danish zoo's killing of the 18-month-old giraffe Marius, concern to preserve a species, while certainly legitimate, treats each individual member of that species as a mere "container of DNA." The outrage over the killings of Marius and Cecil focuses on each of them qua individuals, not as exemplars of their respective species.

Furthermore, anyone concerned about the loss of species diversity ought to be concerned about animal agriculture--which is the largest driver of habitat destruction on our planet. Land converted from its natural state to pasture is land that is unavailable as habitat for the animals who formerly lived there. So is land converted to growing crops for animal feed--and given the inefficiency of converting sixteen calories of plants into one calorie of beef (with similar ratios for other animal products), that's A LOT more land than we would have under cultivation if people stopped consuming animal products. So, my friend's FB friend was wrong even on his own terms. Just as it is odd to care about Cecil but not the animals whose products one eats when one takes the perspective of each individual animal's interests, it is odd to focus on hunting as a threat to endangered species while one ignores the (greater) impact on endangered species that arises out of the demand for animal products.

Despite all of this, I am cautiously optimistic about the public sympathy for the likes of Cecil, Hercules, and Leo. I recognize that most people allow themselves to sympathize with these animals because they do not eat lions or chimps at all, much less three times per day. But to me, this shows that, at an emotional and intellectual level, people understand the case for animal rights. They reject it when it comes to their own personal lives because they cannot imagine that they could live, much less thrive, as vegans. Yet for the vast majority of humans on the planet, that is simply false.

Lawsuits like those brought by NhRP might or might not advance the cause of animal rights. I hope they do, but if I were czar of the animal rights movement, I would direct most of our efforts to showing people how they can live fulfilling, economical, healthy lives as vegans. I'll do my part by noting that there is lots of delicious vegan food out there, much (but not all) of it very healthy.

Friday, July 31, 2015

Supreme Snark

by Michael Dorf

As I noted earlier in the week, on Tuesday I was one of the panelists for the Practicing Law Institute's all-day Supreme Court Review session. Many interesting topics were discussed. Here I want to consider one set of them: The rudeness of Justice Scalia's dissent in Obergefell v. Hodges, especially these lines: "The opinion is couched in a style that is as pretentious as its content is egotistic"; "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began [as the majority opinion begins] I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie." These lines raised a number of questions.

(1) Is this really new? Supreme Court litigator Kannon Shanmugam (who is a former clerk for Justice Scalia) reminded everyone that Justice Scalia has been snarky for a long time. Prominent examples discussed by the panel included his concurrence in Webster v. Reproductive Health Services (1989), in which he called Justice O'Connor's opinion "irrational," his dissent in Planned Parenthood v. Casey (1992), in which he headed sections of his analysis with quotations from the plurality/majority opinion, which he then proceeded to mock, and his dissent in Lawrence v. Texas (2003), in which he lamented that the majority's rejection of morality simpliciter as a basis for forbidding same-sex sexual intimacy was no different from rejecting morality as a basis for forbidding, among other things, prostitution and bestiality. Point taken. Nonetheless, to my ear at least, "hide my head in a bag" is different in kind. Reasonable minds can differ.

(2) Is the phenomenon spreading? As I've noted before (here and here) Justice Kagan can be quite snarky. She has not reached Justice Scalia's level of rudeness to colleagues, but she certainly does not pull her punches. There was consensus among the panel that after Scalia, Kagan is the most likely to try to reach for a bon mot that occasionally comes with a dagger, and that occasionally Justice Sotomayor and Chief Justice Roberts will do the same.

(3) Assuming the increased snarkiness is real, what is the cause? One suggestion we discussed was that Justice Scalia has influenced his colleagues. That's possible but it strikes me as unlikely. The attacks on the rationality and style of his colleagues can only have the effect of alienating them. No Justice could look at Justice Scalia's occasional displays of ill temper in the U.S. Reports and think that this is the way to build a coalition for one's views.

(4) Another hypothesis--floated by NYU law professor Burt Neuborne--is that Justice Scalia has long had an "academic" style in which one pulls no punches. Professor Neuborne described the culture at NYU faculty workshops as conducive to the sort of style Justice Scalia sometimes adopts with respect to his colleagues. This hypothesis strikes me as plausible, if suitably narrowed. For one thing, faculty cultures differ. On each of the faculties that I have been a member (Rutgers-Camden, Columbia, and Cornell) the culture is much more polite. Colleagues ask substantively tough questions but it would be very unusual to attack someone's writing style or rationality. I have also presented papers at numerous law schools, including NYU, and even at the most aggressive of such schools, I've always found that tough comments and questions were directed at the substance of my argument, not my style or my person. That is even true at the University of Chicago--which has the reputation for having the most aggressive style of questioning and, more importantly, is where both Justice Scalia and Justice Kagan were faculty members. (Scalia started at UVA, then did a stint in government, and then went to Chicago, whereas Kagan started at Chicago and then, after her stint in government, went to Harvard). I agree with the suggestion that the influence of the U Chicago culture may explain why Justices Scalia and Kagan are more aggressive than their colleagues, but I don't think that's a full account of the phenomenon.

(5) My hypothesis is that to the extent that we are witnessing a general increase in snarkiness on the Supreme Court, internet culture may be partly responsible. In the competition for eyeballs, snark rules. Now this is admittedly simply a guess based only on my own informal observations. I have noticed that in my own writing for popular audiences (such as this blog), I tend to be more informal and thus perhaps occasionally more nasty than I ought to be. I try for a more detached tone in my academic writing for journals and books, but inevitably one's style bleeds over from one venue to the other. And of course, twenty-something law clerks are creatures of the internet. To be sure, to my knowledge, Supreme Court Justices don't blog or spend much time on Facebook, but in this as in so many other respects, they don't live in a vacuum and are thus influenced by the broader culture. If this is an age of snark, it would not be surprising to see that snark reflected in the U.S. Reports (and in lower court opinions as well).

(6) During our discussion at the PLI session, Touro emeritus professor Marty Schwartz and UC-Irvine dean Erwin Chemerinsky both noted that if a lawyer wrote in a brief some of the things that Justice Scalia writes in the U.S. Reports, he could well be disciplined by the bar or sanctioned by the court. Imagine a brief that described an argument by opposing counsel as "pretentious" or "egotistical," or asserting that anyone associated with it should hide his head in a bag. Professor Schwartz wondered whether there ought to be any mechanism for disciplining Supreme Court Justices for similar rudeness. The rest of us thought that was impractical.

(7) Dean Chemerinsky said he worries that snarkiness or even rudeness in Supreme Court opinions would influence students. He said (over lunch but this is hardly a secret) that for that reason and because he thought it was a distraction, in his 2015 casebook supplement he edited out Justice Scalia's pretentious-egotistical-hide-my-head-in-a-bag language. I told him that in the portion of the casebook supplement and Leading Cases (the abridged version of our casebook, updated annually) for which I am responsible, I left that language in. Although I agree that the language is potentially distracting from the main thrust of the substantive argument, I think it is useful for sparking a discussion about whether the passion expressed by Justice Scalia (and to some extent by the other dissenters) is wholly explained by his (and their) views about jurisprudence, rather than the normative desirability of a right to same-sex marriage. It strikes me as no accident that Justice Scalia's snarkiest snark comes in abortion and gay rights cases. Other faculty who use our casebook might choose to explore other issues with the pretentious-egotistical-hide-my-head-in-a-bag language or to ignore it entirely, but I thought it worth including to give con law instructors options. (I do not mention the language in the notes & questions that follow the case.)

(8) I also worry less than Dean Chemerinsky does about students emulating Supreme Court Justices in their writing. To my mind, the biggest problems with competent writing by law students are: (a) the mistaken impression that they ought to be writing in legalese as opposed to simple prose; and (b) the mistaken impression that good legal writing is boring. (Incompetent writing is its own problem, but I put that to one side.) Whatever else one might say about Justice Scalia's writing, it is accessible and interesting. Very few of our students will end up as judges and so the disciplinary mechanisms applicable to lawyers will prevent them from going too far over the line into nastiness. Meanwhile, if the examples of Justices Scalia and Kagan lead them to write in a more engaging style, that would count as a positive for me.

Thursday, July 30, 2015

Blaming the Victims -- German Style versus U.S. Style

by Neil H. Buchanan

Today, Verdict published Part Two of my two-column series analyzing the Greek/euro disaster.  Part One, published on Tuesday, was devoted mostly to describing the simple economics of the situation, as well as the baselessness of German claims that "playing by the rules" means never, ever renegotiating debts.  (I was gratified to see that the economist Joseph Stiglitz simultaneously wrote an op-ed for The New York Times which was fully consistent with my analysis, and which made further important arguments.)  My associated Dorf on Law post, also published on Tuesday, further developed the point that many types of debt are (and should be able to be) renegotiated all the time, both as part of formal bankruptcies and in ongoing party-to-party dealings.

Today's Part Two considers three additional issues: (1) the possible (horrifying) consequences -- for Greece, Germany, Europe as a whole, the U.S., and pretty much everyone else -- of the political crisis that Germany's leaders have self-righteously set in motion, (2) the ridiculously unfair treatment of the Greek government by tut-tutting European elites, and (3) the odd notion that somehow the Greek people deserve group blame for the purported failures (exaggerated and irrelevant as they may be) of their government over the decades, and thus that they must all suffer now.  Obviously, I hope that readers here will choose to read those arguments in full, at the links above.

At the end of today's column, I added the following parenthetical: "Note: At the end of Part One of this series of columns, I wrote that as part of today’s column, I would 'explain a disturbing parallel between the moralizing that Europe’s leaders have used to condemn Greece’s people to years of pain and ideologically similar victim-blaming in the United States.' Because of the length of today’s column, I have decided to move that discussion into a blog post today at the Dorf on Law blog."  Here goes.

Almost three years ago, I published a Verdict column in which I explained how the current leadership of the Republican Party can be accurately described as "sociopathic."  I subsequently developed that idea in a number of posts here on Dorf on Law.  (One good example can be found here.)  I did not use the word "sociopathic" loosely, in the manner of too many right-wing pundits who accuse liberals of "treason," or Republican politicians who expand the definition of "communism" to the point where an increase in the capital gains tax is described as tantamount to setting up a gulag.  Instead, I relied on well-established clinical definitions of the concept of sociopathy, using examples to show how the current slate of Republican leaders disturbingly fits into that definition.

Among those examples, one struck me as especially egregious.  Former House Majority Leader Eric Cantor, in budget negotiations during one of the contrived debt ceiling crises, decided to insist on reducing (among many other things) financing for nutrition programs for the poor.  Those nutrition programs, already quite tiny, are aimed specifically at helping children obtain enough food to be able to grow and develop normally.  Even in terms of cold cost-benefit analysis, this is one of the best things that the government could possibly be doing, because early childhood nutrition supports brain development and allows children to grow into mentally and physically healthy adults.

Yet the Republican leadership decided that their line in the sand would be based on the idea that it is essential to take food out of hungry people's mouths.  The only possible argument that I could imagine to support such a cruel approach is that these children will benefit if their parents -- faced with the loss of government-provided nutrition -- will suddenly be motivated enough to find the jobs that they supposedly have been lazily refusing to seek.  This would, presumably, also make poor children better off because they would see adults who set a good example by working rather than "taking."  (But I should note that, in the "takers versus makers" view of the world, even people who have jobs are takers.  But I digress.)

Of course, there have not been enough jobs for people to fill, no matter how motivated they might be.  In addition, many of the jobs that are available pay so little that they cannot support a family.  (The infamous example of Wal-Mart employees being so poor that they qualify for Food Stamps -- which Republicans want to cut or even eliminate -- is only the tip of that iceberg.)  But in any case, what if a child is unlucky enough to be born to parents who, for any of a number of reasons, will not do what is necessary to make up for the lost nutrition assistance that was helping to feed their children?

In this context, then, blaming the victims comes in two parts.  First, the people who cannot get jobs are told that they are losers for not being able to find jobs.  Their plight is their fault.  Second, and even more disturbingly, children whose parents fall into the first category are left to suffer, because of who their parents are.  And those same children, many of whose brain development is harmed by the lack of adequate nutrition during key growing years, are then sent to inadequately funded schools, which is again apparently the fault of their parents for not being able to afford to move to Scarsdale, Wellesley, Chevy Chase, or Winnetka.

On a related note, one of my former students once told me that she ended a friendship during the debate about the Affordable Care Act.  Her friend insisted that the government should not provide health care to anyone, because poor people need to be motivated to get jobs.  My former student pointed out that many people with jobs, even seemingly good jobs, could not get health insurance.  She mentioned in particular her parents, who were both school teachers in religious schools in the South.  Her now-former friend's response: "Well, my parents loved me enough that they took jobs that would allow them to give me good health care."  As I said, end of friendship.

In today's Verdict column, I point out that the German leaders' approach to debt negotiations is that a deal is a deal, no matter how that deal was made, and no matter who is hurt by it.  I included one especially vivid example, referring to an American academic's conversations with some German economists: "Debtors who default, they explained, would simply have to suffer, no matter how rough and even unfair the terms of the loans."

One might describe my argument at that point in the column as simply a long paraphrase of a famous catchphrase from a "Simpsons" character: "Won't somebody please think of the children!"  Essentially, the German argument is that unemployment rates in Greece (and Spain, and Portugal, and ...) in excess of 50% for young people are the necessary consequences of their parents' bad deeds.  Although I disagree with the assertion that the parents engaged in bad deeds (at least, not the vast majority of middle- and lower-class Greeks, who have been the victims of a kleptocratic class that now is fleeing the country with its ill-gotten riches), where does anyone come off saying that a 23-year-old Greek deserves to have no economic future, merely because some older Greeks are trying to renegotiate the country's debt in a way that allows everyone (including Greece's creditors) to be better off?

Apparently, the problem with Greece's young people is that their parents did not love them enough not to borrow money from Germany, or more accurately, not to anticipate that German leaders would unilaterally impose after the fact a dangerously narrow and ahistorical notion of "playing by the rules."

Interestingly, in my research into the ethics of intergenerational justice, I discovered that the German constitution is one of the few governing documents in the world that specifically requires the government to take into account how its policies will affect future generations.  (That provision is apparently a dead letter in practice, but stay with me here.)  Today's German leaders have apparently concluded that the best way to provide a better life for future generations is to make it impossible for the debts owed to German taxpayers ever to be repaid, and to obliterate decades of work by earlier German leaders to rebuild their country's reputation as a responsible and enlightened global leader.  Meanwhile, those Southern Europeans -- and their children -- are left to suffer in a virtual debtors' prison.

Wednesday, July 29, 2015

Is It Ethical To Go Undercover To Expose Evil By Participating in Evil?

by Michael Dorf

My Verdict column for this week asks whether the makers and disseminators of the videos showing Planned Parenthood officials seeming to haggle over prices the organization charges for fetal body parts could be liable for defamation for misleading editing. Whereas the raw footage shows clearly that the officials are discussing partial reimbursement for expenses associated with collection, storage, and transport of fetal remains (which is legal), the editing and captioning creates the impression of for-profit sale (which is a crime). I explain in the column that defamation liability is a possibility although I caution about the dangers of censorship that arise when journalists are held to answer in damages for editing out context, given that editing is essential to journalism. In this post I want to raise a question about the ethics of undercover cause journalism.

Putting aside deliberately misleading editing, I have considerable sympathy for the tactics of citizen journalists who aim to capture on film what they regard as immoral conduct. Thus, in prior posts (e.g., here and here) I have raised objections to "ag-gag" laws that make it illegal to enter slaughterhouses and other sites of animal exploitation for purposes of documenting what happens there and to the Fourth Circuit's Food Lion decision insofar as it permitted state law liability for trespass and breach of the duty of loyalty for defendants who obtained employment at Food Lion for the purpose of exposing its unsafe food handling practices. Although I do not share the pro-life position of the citizen journalists who targeted Planned Parenthood, I understand that they face challenges similar to those that face other citizen journalists motivated by the desire to expose what they regard as evil. (Three chapters of the book Professor Colb and I have written, Beating Hearts: Abortion and Animal Rights--forthcoming in 2016 from Columbia University Press--address strategic and tactical similarities between the animal rights movement and the pro-life movement.)

The Planned Parenthood videos were obtained by pro-life activists pretending to be potential purchasers of fetal body parts, conduct which, apart from the lying, does not appear to violate any moral principles the activists affirm. But other sorts of footage may require undercover cause journalists to participate in the very evil they hope to end in order to capture it on video. A pro-life nurse who secretly records a late-term abortion or an animal-rights activist who obtains a job in a slaughterhouse commits the very act her going undercover aims to subvert. Is that problematic?

Before answering that question dirctly, it may be useful to compare it with the question whether undercover police officers are justified in breaking the law in order to catch criminals. Although tv and film dramas often suggest that undercover police only ever feign criminality (e.g., they don't inhale), the truth is quite different. In various jurisdictions and at various times, undercover police have committed acts that would clearly be criminal--sometimes seriously so--but for their status as police officers. As UC Davis law professor Elizabeth Joh argued in a 2009 Stanford Law Review article, this practice--what she calls authorized criminality--is highly problematic and largely unregulated.

Any justification for the police to engage in authorized criminality would have to be consequentialist: Even if police participation in crime causes harm, the argument goes, it is calculated to reduce the total amount of harm caused by crime. Undercover police operations catch criminals and may deter crime, because would-be criminals who fear that their partners in crime may be undercover police will be less willing to engage in crime. At least that's the theory.

This approach could apply to private citizen journalists aiming to uncover evil if the citizen journalists' own ethics are consequentialist. For example, a Peter Singer-inspired utilitarian opponent of factory farming might have no moral objection to taking a job at a slaughterhouse if she thinks that the net result of her activity exposing what happens at the slaughterhouse will be to reduce animal suffering.

However, most activists in moral causes are not utilitarians or other sorts of consequentialists. People who favor animal rights generally think that it is wrong to participate in most activities that cause animals to suffer or die. Likewise, people who are strongly pro-life think that abortion is wrong and that it is wrong for them to participate in abortion, even quite remotely. Think about the objections of the employers in the Hobby Lobby case. They did not want to participate in providing health insurance that covered forms of contraception that they regarded as methods of abortion. If it could be shown that by providing such health insurance, the net abortion rate would decline--perhaps because other non-abortifiacient methods of contraception would lead to fewer unwanted pregnancies--presumably the employers would still object. So it would seem to follow a fortiori that someone who thinks abortion is wrong on deontological grounds should not participate directly in an abortion, even if in doing so she obtains footage of the abortion that can be used to sway public opinion and thus reduce the total number of abortions.

In a certain sense, the objection I'm considering here is a familiar problem for people who believe in rights: A consequentialism of rights--i.e., acting so as to minimize rights violations--is problematic. And yet, people who care about rights understandably want to act in a way that minimizes rights violations. (A useful, if somewhat dense, treatment of the broader problem can be found here.) My view, for what it is worth, is that the objection to a consequentialism of rights melts away where one acts to minimize violations of rights by others but that one cannot simply trade off one's own rights violations in order to reduce net rights violations by oneself plus others. If it is simply wrong to kill, then it is wrong to kill A even if (somehow) killing A leads to the sparing of B and C. This is simply what it means to reject consequentialism.

There may be ways around this sort of objection. Perhaps the pro-life nurse who takes a job assisting in abortions finds ways not to provide any real assistance while she surreptitiously records the abortions. Or the animal rights activist takes a job in the slaughterhouse that does not directly involve killing. But I tend to think that this is a dodge. If the employer is willing to hire the undercover activist to do a job, presumably that's because the job is part of the process that the activist regards as evil.

Bottom Line: My tentative answer to the question that titles this post is "no."

Tuesday, July 28, 2015

Simplistic Moralism in the Greek Crisis, With a Few Thoughts About the Purposes of Bankruptcy

by Neil H. Buchanan

This week in Verdict, I am publishing a two-part column about the Greek/European economic and political crisis, which dominated the news until very recently.  Part One was published today, and Part Two will be published on Thursday.

In today's column, I explain why the economic conditions that have been imposed on the Greek people are so ruinous, to say nothing of being self-defeating for the creditor countries.  The economics behind this story continue to be quite simple, and I am hardly the first economist to describe the insistence on ever-deeper austerity policies as both cruel and insane.  Continued austerity simply makes it ever-harder for Greece to pay its debts, which all but guarantees that the country will soon need further debt negotiations to avoid the next possible full-on default.  Yet the leaders of the key European institutions -- quite clearly at the insistence of the most politically and economically powerful country in Europe, Germany -- demanded even further austerity even to begin the process of negotiating a longer-term package.

Prior to the Great Recession, Greece was avoiding reforms of its governance structure that would have been in the overall interest of the country.  But so were most countries.  For example, it is of more than passing interest that I have given lectures abroad over the last few years with titles like, "Will the United States Ever Again Have a Functioning Budgetary System?"  As I argue in today's Verdict column, however, the idea that Greece's longstanding political problems are an excuse to impose gratuitous, mutually destructive conditions on the Greek people is simply absurd.

There is much more in today's Verdict column, of course, and I encourage readers of Dorf on Law to read it in full.  Here, however, I want to focus on a particular issue that I raise in the column, regarding the moral claims that Germany's leaders have openly relied upon in condemning Greece to unending pain.  In particular, German Chancellor Angela Merkel and others have continually sneered that the Greeks supposedly refuse to "play by the rules."  If you borrow money, you must repay the money, on time and in full, they say.  End of story.  And, they continue, they are tired of the Greeks repeatedly breaking that simple moral code.  That the Germans themselves have not always considered that code to be inviolable, of course, is conveniently forgotten, as West Germany's post-World War II debt relief is sucked into the memory hole.

The problem, however, is that this idea of inviolable loan contracts is beyond naive.  Not just in the context of debt write-downs in the aftermath of global war, but in simple day-to-day commerce, parties to contracts -- especially loan contracts -- engage in debt relief all the time, and sometimes debtors default entirely.  As I note in today's column, commercial debt is "rated" by trained financial analysts on the basis of how likely it is to be repaid.  Debt risk analysis could not even be "a thing" if the Germans' simplistic moralizing were an accurate description of how the world works.

And then, of course, there is bankruptcy.  The U.S. Congress itself engaged in its own spasm of victim-blaming moralizing not long ago, restricting the availability of bankruptcy protection on the basis of false and exaggerated claims that the system was allowing morally defective people to walk away from their debts.  Even so, Congress obviously did not repeal Title 11 of the U.S. Code, which still provides various ways in which people and businesses can obtain relief from debt obligations that have become impossible to repay.

Most importantly, when lenders issue loans, they do so knowing how those bankruptcy provisions work, which in turn allows them to determine the interest rates and other conditions that they will impose on those loans.  The loans are then issued in the full knowledge that the borrower might not pay, in full or in part.  Lending to people or businesses that already owe large amounts of money is more risky than lending to people with relatively low levels of debt.  This is Finance 101, hardly some exotic theory worked out by libertine anti-capitalists.

Yet the availability of bankruptcy -- both formal bankruptcy, and what might be called "effective bankruptcy," in which parties engage in lender-borrower negotiations to adjust loan terms on the fly -- surely cannot be allowed to provide carte blanche for anyone and everyone to walk away from their debts.  Before one even gets to the question of debtors who walk away from formal loan contracts, however, it is important to think about other categories of debt that are treated differently by the bankruptcy laws (and in other areas of the law).

As one particularly interesting example, U.S. personal bankruptcy laws prevent "deadbeat dads" from walking away from their child support and related debts.  This is essential, because the nature of a negotiation that created a divorced spouse's obligations is obviously rather different from the negotiations that lead to the issuance of legally enforceable loans.  In particular, the payor spouse is supposed to be paying for the expenses of the child, who is represented in the negotiation partly by the payee spouse, but importantly also by the court.  When child support is unpaid, it either means that the child suffers, or the other spouse essentially fronts the money to the ex-spouse, by paying for the child's expenses.

I suppose that one could still say, "Well, the would-be-payee spouse knew, when she decided to pay for the child's expenses, that the should-be-payor spouse might never be brought to justice.  So the spouse to whom back support is now owed made her decision knowing that the money might never be recovered."  In a sense, that is true.  Plenty of women (and some men) have essentially reduced their own living standards on what amounts to little more than hope that their ex-spouses will finally be made to pay.

In some broad categorical sense, then, it is true that every decision to loan money is made in the shadow of the threat of never being repaid.  Yet our bankruptcy laws sensibly recognize that some categories of debt are meaningfully different from others, and Chapters 7 and 13 of the bankruptcy code explicitly forbid discharges of child support and divorce-related obligations.  (On the other hand, the code is now gratuitously harsh regarding student loan debt.)

The difference between allowing a person to reduce some of his formal borrowing obligations while preventing him from reducing his payments to other categories of obligees is based, in part, on the idea of the relative power or vulnerability of the obligees.  The counter-party to a deadbeat dad is, in general, not a repeat player in this kind of loan process, and is thus not likely to be able to smooth out the occasional loss that banks and other lenders take as a matter of course.

Such classic equitable concerns, however, are not the whole story.  There is an important difference between saying, "Well, nothing is certain in life, and so I should not consider anything a sure thing," and something like this: "The ability to carry on normal commerce requires that parties update their expectations on a regular basis.  While it would be great if every loan and every contract were carried out to the letter, that is not the world in which we live.  Some categories of contracts, while still enforceable, deserve less of a presumption of inviolability than others."

What puts a loan in the category of being potentially more easily renegotiated?  In part, it is a matter of simply understanding what counts as "normal" in daily life, along with how explicit the risks are before the parties agree to a contract.  For example, in our writings about the U.S. debt ceiling, Professor Dorf and I have argued that the federal government should avoid a default on its obligations, if push comes to shove, by issuing debt in excess of the statutory ceiling.

As I have argued in multiple blog posts, one reason for this is that the people who are currently awaiting payments from the federal government -- not just bondholders, but hospitals that have already provided services to Medicare patients, contractors who have provided equipment to the Pentagon, and many others -- have every reason to think that they will be paid, in full and on time.  Why?  Because the U.S. government always has done so, and it has very good reasons to want to keep that winning streak alive.  Even though one could say that, especially in the post-2011 Tea Party era of debt ceiling showdowns, everyone is now on notice that the federal government could default in the midst of a political standoff, that strikes me as an odd way to assign risk.

What makes it so strange is not merely that the federal government's counter-parties are generally in such a poor position to predict and prepare for such a catastrophic event.  It is also because the alternative, while bad, is so much less bad.  That is, if the government were to issue debt in excess of the statutory ceiling, everyone acknowledges that bond buyers (aka lenders) will treat that new debt as riskier than other federal debt.  The new debt will thus surely carry higher interest rates, which is the price that taxpayers will pay for the Republicans' insistence on using this highly inappropriate strategy.

The larger point, however, is that the buyers of the new debt will loan money in the knowledge that they might not be repaid -- and such knowledge is significantly more salient than the background knowledge that there are no guarantees in life.

One of the reasons that the U.S. government should avoid defaulting on its day-to-day obligations, in fact, is that doing so will create difficulties in the future, as hospitals and others that have been harmed take measures that will increase transactions costs for everyone involved, if they are even willing to work with the federal government again.  We affirmatively want people to know that they can count on the United States government to meet its obligations.

By contrast, everyone knew -- or should have known -- when the loans were issued to Greece (especially by Germany and other governments) that the likelihood of repayment was low.  Notably, the people who now accuse the Greeks of being chronically dishonest, corrupt, and so on, can hardly also say that they are surprised when the Greek government does not pay its loans.  But even those lenders who are not engaged in chauvinistic name-calling were issuing loans even as they were aware that the Greek economy was being forced to contract further.  Repayment of such loans was knowably impossible.

Of the types of obligations that can be subject to adjustment through renegotiation, then, the loans that the Greek government (and, I should emphasize, the International Monetary Fund) says must be reduced are right at the top of the list.  There are still reasons why governments (including the Greek government) will want to avoid and minimize the need for such renegotiations in the future, so we are not opening a Pandora's Box by recognizing that Greece is in a debt trap from which orthodox policies prevent its escape.

Again, this entire discussion of the supposed immorality of renegotiating debt should be unnecessary, because the continued austerity that is being imposed on Greece is simply going to guarantee that the loans will never be repaid, anyway.  That ship has sailed.  The only question is how to make it possible for the Greek people to escape this trap, and for the Greek economy to emerge from its depression as soon as possible.  Calling the Greeks bad people might make other Europeans feel good, but it solves nothing, and -- at least in the context of debt renegotiations -- it is simply wrong.