Tuesday, September 30, 2014

Writing About the Debt Ceiling is Apparently Not Easy

-- Posted by Neil H. Buchanan

A colleague recently forwarded to me a link to a law student note, Unconstitutional Debt Ceilings, 103 Georgetown L. J. Online 29 (2013), in which a 2013 Michigan Law graduate provided a short argument to the effect that the federal debt ceiling is unconstitutional.  Because Dorf on Law brings in new readers all the time, I cannot presume that everyone reading this post is aware that Professor Dorf and I have written a series of academic articles, Verdict columns, and blog posts regarding the debt ceiling, in which we emphatically reach the same result.  (I also published a book on the subject last year: The Debt Ceiling Disasters.)  I thus read the student's note with interest.  [Note: I initially misread the star-footnote, thinking that the author of the note had been a Georgetown Law student.  Although I went to Michigan, my mostly positive assessment below was formed when I thought that the author attended GW's cross-town rival.  So there was clearly no "homerism" involved.]

The note does not cite any of the Buchanan-Dorf scholarship.  I say that not to be grumpy, but because it means that the note provides an opportunity to watch someone reinvent the wheel, and then to compare his wheel with ours.  (The oversight is surprising, however, because the one thing that I thought I knew about law review editors is that they are obsessive about preemption checks.)  It was interesting to read the note and to watch how the author struggled with the various issues, beginning with the 14th Amendment argument and then working his way toward an argument that looks very much like a preliminary version of our "trilemma" argument.  (Readers who are unfamiliar with that argument can find a brief version of it in this Verdict column from early 2013.)

Working without reference to any existing legal literature is not easy, and the author of the note inevitably makes a few errors.  He frequently makes gratuitous, and inaccurate, statements about how terrible government debt is.  That, however, is more a matter of a law student making unschooled statements about economic issues.  A much more important error, however, is this argument (on p. 35): "When debt increases faster than GDP, the country becomes more highly leveraged, endangering the government's ability to repay its debt" (emphasis in original, footnote omitted).  This is simply not correct, because U.S. federal debt is denominated in dollars, which the U.S. government can create.  No amount of debt endangers the government's ability to repay the debt.  Excessive debt creation can have other effects, such as causing inflation to increase (as the note points out), but that is a very different issue.

Still, the author of the note is merely replicating an error that Professor Tribe committed in his original 2011 NYT op-ed regarding the debt ceiling, and which Tribe subsequently repeated in his mini-debate with me here on this blog.  So, if a law student is going to make a fundamental analytical error, he could do worse than repeating an error that was committed by one of the top legal scholars in the country!  A similar excuse is available for the author's acceptance (in the same paragraph) of the idea that the Standard & Poor's downgrade of U.S. debt in 2011 was caused by "excessive debt," an argument that the author simply repeats from a Bloomberg magazine article.  True, S&P talked a lot about high debt levels, but the downgrade was caused by the debt ceiling-related political circus, not by any change in the government's debt forecast (since the debt forecast had actually just been revised downward).

Still, the note is quite valuable, especially because the author did some very good research and found wonderfully on-point quotations from two Supreme Court cases, supporting the idea that the debt ceiling cannot be used to change the spending decisions made by Congress.  As Professor Dorf and I have argued, one of the fundamental reasons that the debt ceiling must give way to the spending laws (and the tax code) is that the political balancing act that creates spending legislation is the essence of representative government.

The note quotes Justice Kennedy, from Office of Personnel Management v. Richmond, 496 U. S. 414 (1990), arguing that the Appropriations Clause's "fundamental and comprehensive purpose ... is to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents or the individual pleas of litigants."  Similarly, the note explains that Clinton v. City of New York, 524 U.S. 417, 439 (1990), prohibits "unilateral Presidential action that either repeals or amends parts of duly enacted statutes."

Thus, as we have argued, the claim that the President can merely "prioritize" spending, if the debt ceiling becomes binding, is wrong.  (As a matter of politics, it is amusing to note that the House Republicans' lawsuit against President Obama claims that he wrongly chooses to execute only parts of laws, not the laws in their entirety.  I will surely write about that issue again in the near future.)

Therefore, although the note is too short to cover the issues in depth, and the author makes a few errors along the way, it is a valuable addition to the small canon of work on the debt ceiling that has emerged in the last few years.  Indeed, Professor Dorf and I have frequently noted the lack of substantive engagement with our arguments, and we thus welcome such work, even if the engagement is only indirect.

Unfortunately, another recent article to have come across my desk is far less laudable.  In 31 Yale J. on Reg. 269 (2014), a business law professor is aware of our first article (or at least its title), but things quickly go awry: "Two legal scholars have argued that [issuing debt in excess of the debt ceiling] is one of the 'least unconstitutional' options.  The problem, however, is that this option may not be constitutional at all, and even if it is, the resulting uncertainty will be costly.  The Fourteenth Amendment does not explicitly authorize the executive branch to borrow to avoid default. Nor does it appear to provide any implicit authorization: its provision prohibiting the government from questioning the 'validity' of its public debt was historically included solely to prevent a southern Democratic majority from repudiating Civil War debts."

Where to begin?  (1) We did not argue that exceeding the debt ceiling is "one of" the least unconstitutional options.  We called it the least unconstitutional option, and we explained why that was so.  (2) Everyone knows that "uncertainty will be costly," but the question is whether it will be more costly than the alternative -- the first-ever default by the federal government.  Calling it "costly" says nothing.  (3) No one would ever say (and we certainly have not) that the Fourteenth Amendment authorizes borrowing -- much less explicitly.  (4) The Civil War debt history does not prevent a constitutional provision from being applied to other circumstances.  And in our most recent article, we show that even the narrowest version of the "repudiation" argument ends up supporting the idea that the debt ceiling cannot be used to justify defaulting on scheduled payments.

The bottom line, unfortunately, is that there is nothing new to report about debt ceiling scholarship.  One mostly good and one not-so-good addition to the very thin pile of articles have not changed the bottom line: Both Obama and the Republicans are wrong, with the Republicans being more wrong for having started this craziness.

Monday, September 29, 2014

WWJHED (What Would John Hart Ely Do) About Campaign Finance Regulation?

By Michael Dorf

In a terrific essay in The Atlantic last week, Garrett Epps took the opportunity of the lull before the start of the Supreme Court Term to note the seeming perversity of the Roberts Court's views about how to define vulnerable minorities in need of judicial protection. Juxtaposing the results and reasoning of last Term's decisions in McCutcheon v. FECTown of Greece v. Galloway, and Schuette v. BAMN, Epps notes that the conservative majority seems to think that "rich people and Christians are minorities, but [racial] minorities are not." Of course, these cases involve different doctrines and it's possible to construct an argument for each result without exactly contradicting any of the other results, but still, the pattern is arresting.

Here I want to examine a premise of the analysis Epps provides--that it is the special role of the courts to look out for vulnerable minorities. That view was given its canonical form in footnote 4 in the 1938 Carolene Products case, and later developed at length in the work of John Hart Ely, especially his book Democracy & Distrust (D&D). In a 2005 paper in the Yale Law Journal I called D&D "the single most perceptive justificatory account of the work of the Warren Court and arguably of modern constitutional law more broadly." I continue to think that, but I wonder whether the conservatives wouldn't really rather be rid of the Elysian cast of constitutional law.

Liberals for the most part embraced Ely at least half way. They argued that Ely's argument for judicial review that is "representation reinforcing" was insufficient to show that this was the only role of judicial review. But they agreed that this was an important role for judicial review.

By contrast, it is not clear to me that conservatives ever embraced Ely's views more than opportunistically. In academic work, originalists attacked Ely's views as ahistorical. In the courts, conservatives were happy enough to invoke Ely's critique of Roe v. Wade and modern substantive due process more broadly, but in rejecting Ely's views about affirmative action in favor of "color-blindness," they rejected the core of his theory: Treating majority-disadvantaging laws as indistinguishable from minority-disadvanting ones is virtually impossible to reconcile with Ely's broader theory.

Nonetheless, even if judicial conservatives would rather construct constitutional doctrine on non-Elysian grounds, the basic fabric of modern constitutional doctrine--here and in other constitutional democracies--takes for granted that protection of minorities is a central purpose of judicial review. As Judge Posner put it in the 7th Circuit SSM case, "minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law."

Is there a serious argument that rich people and Christians are the sorts of groups whom the courts should protect under the rubric of minority rights? I'll put aside Christians to focus on rich people. Conservatives certainly believe that rich people are vulnerable minorities--and if one thinks about the matter in originalist terms, they have a point.

The Federalist Papers repeatedly bemoan the evil of paper money printed by the States under the Articles of Confederation for exactly the reason one would expect the wealthy to object to such policies: fear that the increase in the money supply would favor poor debtors at the expense of wealthy creditors. One need not subscribe to the conspiracy theory of the Constitution made popular by Charles Beard--who saw the Constitution chiefly as the reactionary tool of the moneyed classes--to recognize that much of the protection for "minority rights" in the 18th century Constitution aimed to protect the minority of the wealthy against confiscation by the rabble.

But whatever the merits of a wealthy-protective approach to the Constitution on originalist grounds, since 1937 that view has been rejected as a matter of official doctrine. Indeed, the whole point of the Carolene Products footnote is that special judicial solicitude for "discrete and insular minorities" stands as one of a small number of exceptions to the general rule that laws regulating the economy--including those that can be said to disadvantage capital in favor of labor--are to be presumed constitutional. So a general disposition towards treating the wealthy as a suspect class cannot be reconciled with Elyism, without the exception swallowing the rule.

And indeed, conservative judges and justices appear to get this. That's why, despite repeated calls for reviving Lochner by some conservative academics, no Justice has expressed interest in doing so.

BUT to say that the wealthy are not a discrete and insular minority is not to say that they are entirely fair game. After all, both the Carolene Products footnote and D&D's defense of it list other exceptions to the presumption of constitutionality. The footnote refers to the Bill of Rights generally, while Ely paid special attention to the First Amendment, for which he thought robust judicial protection was essential to ensure the proper operation of the political process. And so we come to campaign finance regulation, which has been limited by the Court's First Amendment jurisprudence. How does campaign finance regulation in particular fit within Ely's views?

In her 2012 Harvard Law Review ForewordPam Karlan explains how, depending on how one approaches the matter, the Court's campaign finance cases could be understood as either an application of Ely's more general views about free speech or, as backwards. She notes that campaign finance regulation itself could be seen as fulfilling the Elysian goal of clearing the channels of political change by reducing the distorting impact of money on the domain of politics.

In a response in the online Harvard Law Review Forum, Steven Calabresi is less equivocal. He says that Karlan gets Ely wrong with respect to campaign finance:
Karlan criticizes the Roberts Court for its decision in Citizens United v. FEC . . . but even she concedes that Ely had criticized campaign finance laws out of concern that “the Burger Court was balancing away freedom of speech that the Warren Court had protected more robustly.” The whole complaint about campaign finance laws is that they protect incumbents from well-financed challengers. It would thus be hard to imagine a more clear-cut case where Ely’s theory of judicial review would be applicable than with campaign finance cases.
It's true that some Justices who view campaign finance regulation with suspicion sometimes express the worry that these restrictions serve as a kind of incumbent protection, but that is hardly "the whole complaint." In McCutcheon, for example, the word "incumbent" appears exactly once, and that's in the Appendix to Justice Breyer's dissent. The majority opinion of CJ Roberts focuses chiefly on how the aggregate campaign contribution limits constrain the right of private donors to "participate in electing our political leaders" by giving money to candidates. Is special juidical solicitude for donor-side rights justifiable in Elysian terms?

If the question is whether the rich need the courts' help in protecting their own interests because they lack political power, the answer is obviously no. But perhaps that's because the rich have political power only in virtue of their ability to buy elections. If they couldn't buy elections, then the mass of the middle and lower classes would use the franchise to secure redistribution. So, in this view, when the outcome of the legislative process disadvantages the rich, there's no great need for judicial worry because the rich can take care of themselves through the political process. But if government starts tinkering with the ability of the rich to influence the political process itself, then the rich will no longer be able to protect their interests via politics. In doctrinal terms, the continued vitality of the New Deal Settlement--most centrally the overruling of Lochner--necessitates rulings like McCutcheon and Citizens United.

In case there's any doubt, let me be clear that I do not hold the view articulated in the previous paragraph. It seems to me most dubious in assuming the purchase of politicians by the wealthy as an unproblematic baseline. To my mind, even in a regime of campaign finance regulation, the wealthy would not be entitled to any special judicial solicitude, because while they would be unable to exert outsized political influence, they still would not be especially disadvantaged in the political process.

But I nonetheless wonder whether the view I have just articulated might explain how at least some of the conservative Justices on the Roberts Court think: To the extent that they take the D&D paradigm seriously, they see the need to protect the rights of the rich to influence politics through money as a lynchpin of the existing constitutional order.

Friday, September 26, 2014

The Rhetoric vs. the Reality of the California Teacher Tenure Decision

-- Posted by Neil H. Buchanan

Last month, I wrote a series of posts (here, here, and here) in which I discussed the new tendency among "centrist" liberals to join in with conservatives to attack teachers' unions, and in particular to claim that tenure for teachers is harming schoolchildren.  In my Verdict column today, I return to those issues, describing why uniquely strong job protections are necessary for school teachers.

As I note, the at-will employment model is bad for everyone, and all workers should have due process protections that they currently lack.  However, if only some people will have access to tenure protections, teachers should be at the top of the list.  That conclusion is based not just on what the teachers deserve, but on the positive effects of tenure on the schools overall.  I describe how the empirical evidence fails to show any harm from tenure, and relatedly that there is no evidence that educational outcomes have been improved in jurisdictions that have attacked teachers and their unions.

At the end of the column, I discuss the infamous Vergara v. California decision, rendered in June of this year, in which a California trial court judge declared that three state laws related to teaching -- the law granting tenure, the law making it more difficult to fire tenured teachers, and a "last in, first out" (LIFO) rule for dealing with layoffs -- are in their entirety a violation of equal protection and are thus unconstitutional.  Here, I want to add a few more thoughts about Vergara, which is a truly odd decision, both in its reasoning, and in the way that it has been portrayed in the press.

The Vergara case was much more than simply an attack on the idea of tenure.  Because he was agreeing with an equal protection claim, it would not be enough for the judge merely to conclude that teachers' job protections might allow some less effective teachers to remain employed.  After all, even the fiercest defenders of tenure admit that the whole point of due process is to make firing more difficult, which necessarily means that even people who will ultimately be let go will be employed longer than they would have been in a fire-at-will world.  The point is that, like all forms of due process, the "red tape" is ultimately worth it for everyone, including good teachers and students.  Proving that some ineffective teachers would have been fired sooner is hardly enough to make a claim.

Even if the legal issue had merely been whether tenure is a net positive or net negative, however, the judge in Vergara fell short.  His analysis simply says that "grossly ineffective" teachers are difficult to fire in California, and that they probably were tenured too quickly, because California has a two-years-to-tenure-review model, rather than the more common three years in most states (and up to five years in the remaining states that have tenure).  He then says that LIFO keeps some of the bad teachers on staff, while younger and better teachers are often released.  He says, in other words, that California's laws have negative effects, but he says nothing about the net effect of tenure.  One could thus describe his ruling as "cost analysis," not "cost-benefit analysis."

But the legal standard in an equal protection case is not even "net positive versus net negative."  It was necessary for the judge to further claim that the statutes in question caused some children systematically to receive worse educations than everyone else receives.  Accordingly, the judge needed to show that minority children were being uniquely burdened with bad teachers -- and that that burden was caused by the three statutes.

In my Verdict column, I probably give the judge too much credit, because I allow that at least the LIFO law might be blameworthy when it comes to concentrating the least experienced and least effective teachers in schools in poorer neighborhoods.  (I also fault the judge for treating the three laws as an inseverable whole, which is just strange.)  But even that is highly contestable, because one could easily imagine a system in which (a) people are tenured (or not) after two years, (b) tenured teachers become more difficult to lay off, and (c) the youngest people bear the brunt of layoffs, yet any resulting group of "bad teachers" is spread equally throughout the state.  Again, the most that can be said (and the evidence that the judge relies upon does not even prove this conclusion) is that California's three statutes keep some people on the job who should be let go.

Appellate review of this case should thus be rather easy, at least as a matter of legal argument.  What is equally interesting is that the press reports and commentary about the case describe the outcome as a matter of finding tenure itself to be unconstitutional.  Strictly speaking, the judge did invalidate all three laws, but his reasoning (such as it is) would easily allow California to tinker with its tenure system in order to comply with the judge's ruling.  There is nothing at all that says that tenure for teachers cannot be adjusted in a way that cures the constitutional defects that supposedly currently exist.  In fact, to follow the judge's line of thought, even something as simple as moving to a three-years-to-tenure standard, with no other changes, could do the trick.  Or not.  The decision is truly opaque about what really bothers the judge.

This confusion about what was really at stake showed up in the general media descriptions of the ruling as "invalidating tenure," with most reports seizing on one phrase in the ruling, where the judge says that the system "shocks the conscience."  For example, a NYT reporter last month wrote that the judge "found that tenure protections for teachers deprived students of a constitutional right to an education, and disproportionately hurt poor and minority students," and then quotes the judge as saying that the system shocks the conscience.

The judge does, indeed, import the rhetoric of unconscionability into his ruling.  Interestingly, however, he does not say that California's tenure system shocks the conscience, at least not directly.  He says this: "Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students.  The evidence is compelling.  Indeed, it shocks the conscience."  He then describes a "massive study" that tried to measure the costs (in lost future income) when a student is taught by a grossly ineffective teacher.  The number is high, but the judge shows no understanding of that study's limitations.

The point, however, is that the judge said that it is unconscionable for a student to be taught by a grossly ineffective teacher.  That is not at all the same thing as saying that California's tenure system inevitably results in minority students being taught by such teachers.  Indeed, it does not even say that it is impossible to reform the system so that robust tenure protections are still available, but no students are taught by grossly ineffective teachers.  Whatever else one might say about the so-called rubber rooms in NYC, a system (that has since been abandoned) in which teachers who were thought to be ineffective were taken out of the classroom while they went through due process, it at least showed a way for students to be shielded from people who might be on their way out.

More positively, it is certainly possible to build systems in which grossly ineffective teachers are weeded out, and students are left to be taught by the many good teachers who continue to be underpaid and under-appreciated in the schools.  In fact, it is teachers' unions that have been at the forefront of just such reforms.

Notwithstanding all of this, the people who brought the Vergara case (and, as I note in my Verdict column, are taking this to NYS and nationwide), are not interested in reforming tenure or working with unions.  They are, as I noted in my Dorf on Law posts last month, anti-union ideologues who have duped a fair number of liberals to go along for the ride.  (Heck, reports indicate that even "The View"'s liberals are now anti-tenure.)

At this point, a person would have to be either completely uninformed, or deliberately obtuse, to think that the Vergara case was really about "the children."  Tenure for teachers is a necessary component of a good educational educational system.  Not a sufficient one, but a necessary one.  These lawsuits are just another way to use supposed "bad teachers" as a wedge to remove job protections for everyone.

Thursday, September 25, 2014

Hobby Lobby Post-Mortem Part 11: How RFRA Connects Social Conservatism to Libertarianism

by Michael Dorf

Regular readers of this blog will recall that in June and July, Professors Buchanan, Colb, and I wrote a series of ten posts on the Hobby Lobby case (found at 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10) as well as two Verdict columns (here and here). Having thus devoted a great deal of thought to all of the issues surrounding Hobby Lobby, I was happy to agree to participate in a "debate" on the merits of the case sponsored by the Cornell Law School chapter of the Federalist Society. Thus, on Monday of this week, I debated John Malcolm of the Heritage Foundation.

I put "debate" in quotation marks because the event was not, strictly speaking, a debate. I spoke for about 20 minutes, most of which was devoted to explaining to the audience (a majority of whom were 1Ls) exactly what was at stake in Hobby Lobby, and only in my last five minutes did I lay out some concerns, based mostly on my Verdict column. Mr. Malcolm then spoke for about 25 minutes, occasionally referring to my remarks to agree with my descriptive account of the issues. I used my 5-minute rebuttal to call attention to a few points of disagreement, simply so the audience would not go away feeling cheated. Q&A followed. Having said as much as I have already about Hobby Lobby, I did not expect Monday's debate to lead me to blog about the case yet again, but Mr. Malcolm's answers to a couple of audience questions has drawn me back in.

Unlike some of the past Fed Soc debates in which I have participated, this one was not recorded, so I'll have to paraphrase based on what I recall. I'll undoubtedly get some details wrong but I'm pretty confident that I have the big picture right.

Both in his affirmative presentaiton and partly in response to an audience member's question, Mr. Malcolm drew a distinction between the religious freedom of owners of businesses like Hobby Lobby and Conestoga Wood, on the one hand, and, on the other hand, the objection by employees and prospective employees who do not share the religious views of their employers. Such employees are not forbidden by their employers from obtaining the forms of contraception to which the business owners object, he said, because: a) they could pay for it out of pocket or pay out of pocket for a supplemental insurance plan that covers it; and b) most employers (I believe the figure he gave was 85%) do not have religious objections to providing health insurance that covers these forms of contraception, so the workers could go to work for one of those other firms.

In response to a), I noted that for low-wage employees, the out-of-pocket expenses could be prohibitive. In a follow-up, Professor Nelson Tebbe raised an objection to part b) of the foregoing response, explaining that ordinarily if the government provides some protection for employees, an employer cannot avoid its obligations simply because there may be other employers who satisfy them. He gave an example of an employer who invokes RFRA to defend against a charge of religious discrimination by saying that his (or in the case of a corporation, its) religion requires that only co-religionists be hired.

Before coming to Mr. Malcolm's reply, here's a little background regarding Prof. Tebbe's question. Title VII exempts religious non-profits from the prohibition on religious discrimination, and that exemption was upheld against an Establishment Clause challenge in Corp. of Presiding Bishop v. Amos. Meanwhile, in the Hosanna-Tabor case, the Supreme Court held that the Free Exercise Clause requires a "ministerial exemption" from other kinds of antidiscrimination law. But I think it is clear that--absent a valid RFRA claim--neither Title VII itself nor the Constitution would entitle the religious owners of a for-profit business to escape Title VII liability for discrimination on the basis of religion.

So, how did Mr. Malcolm answer Prof. Tebbe's question? He did not directly address it. Like Justice Alito in his Hobby Lobby majority opinion, Mr. Malcolm said that there is a compelling interest in combating race discrimination, and he seemed to admit that Title VII's prohibition on such race discrimination was narrowly tailored. Why he admitted the latter is not entirely clear. My guess is that many fewer than 15% of businesses would seek a religious exemption from Title VII's prohibition on race discrimination, so if it is a sufficient answer to the women denied contraception that they can find other employment, I don't know why it's not a sufficient answer to the people denied jobs based on race that they can find other employment. I suspect that both Justice Alito and Mr. Malcolm sought to distinguish race cases because they felt some need to do so on political grounds. In any event, by not directly addressing the religion example posed by Prof. Tebbe, and by waxing poetic about how, in a free society, we must sometimes accept some burdens when other people exercise their freedoms, Mr. Malcolm pretty clearly indicated that he thought the race case was exceptional. Whatever he would have said if pressed to answer Prof. Tebbe's question directly, he did not back down from his general view that employees and prospective employees should have to bear the burden of the exercise of freedom by their employers.

Now, as a description of positive law, I think there is probably something to be said for Mr. Malcolm's view. To return to the facts of Hobby Lobby, the female employees are not asserting that they have a religious obligation to use the particular forms of birth control, and even if they were, that would not make out a RFRA claim, because it is their private employer, rather than the government, that is denying them the coverage they seek. So the issue of the employees' need/desire for the particular forms of birth control enters into the equation by way of the compelling interest test. We ask whether there is a compelling government interest in providing them with the birth control, and if so, whether having it come via health insurance provided by their religiously scrupled employer is narrowly tailored to that interest; we do not ask whether the employees themselves have a religious or other right to the contraception, because they do not.

But Mr. Malcolm did not simply give the foregoing answer (although I think what he said included the foregoing, at least implicitly). He didn't just say that the combination of RFRA and the state action doctrine means that the employers have a claim but the employees don't. He thought that this was the normatively right answer, on libertarian grounds. Why? I think the answer is pretty clear from libertarian thought generally, which goes like this:

In an unregulated market, some employers would offer health insurance; others would not. Some of the employers that offered health insurance would include coverage of all forms of contraception; others, including those with religious scruples against what they consider abortifacients, would not. Employees would be free to accept or reject employment based on the package of salary, conditions, and benefits--including health insurance--offered. Thus, in an unregulated market, religious freedom for employers would simply be a result of economic freedom. Ideally, the government would not interfere with the market at all, but if the government does interfere--as by enacting the Affordable Care Act (ACA)--then it at least should grant exceptions to those who are most burdened by the interference, namely those for whom compliance with government regulation conflicts with religious conscience.

The main problem with this story is its initial premise that absent laws like the ACA, the employment market would be unregulated. As legal realists have been pointing out for over a century, law plays an essential role in creating the conditions for market exchange, by protecting property rights, enforcing contracts, etc. So the notion that the ACA or antidiscrimination law interferes with a domain of pre-political freedom is highly problematic. It only makes sense in the Lochnerian world in which the common law is taken for granted as a neutral baseline. If, instead, one begins with the much more realistic notion that the law will inevitably play an essential role in the marketplace, then one needs to offer a normative justification for preferring the freedom of the employers over the often-fictive freedom of the employees to choose where, when, and how to sell their labor.

My goal here is not to rehash the legal realist critique of libertarianism. Instead, I simply want to make an observation (for which Prof. Colb deserves credit, having made the suggestion to me in conversation a while ago): A case like Hobby Lobby is wonderful for the right because it brings together two strands of conservative thought that often pull in opposite directions--social conservatism and libertarianism. Social conservatives like the result and reasoning of Hobby Lobby because it is anti-abortion in the particulars and more generally it provides religious traditionalists with grounds for opting out of progressive regulation; libertarians like the result and reasoning of Hobby Lobby because it recognizes market freedom as a core liberty.

Meanwhile, religious exceptions cases are more ambiguous for liberals (like me). Even while rejecting the libertarian view of the market as neutral, many liberals still support RFRA or its state-level equivalent because we recognize that religious liberty is important, and because we worry that facially neutral laws will sometimes impose serious burdens on members of minority religious groups (like the Native American plaintiffs in the Smith case).

Given these considerations, it is not really surprising that my debate with Mr. Malcolm was not a debate in the sense of two people offering opposite positions. My view is that religious exceptions cases pose hard questions about how to trade off important goals on both sides. His view (and the view of conservatives more generally) is that the issue is just about wholly one-sided.

Wednesday, September 24, 2014

Scotland, Hawai'i, and How to Talk to Non-Lawyers

by Michael Dorf

My new Verdict column uses the occasion of the Scottish independence referendum to discuss the international law governing secession. I juxtapose the UK's scheduling of a referendum vote on independence with Crimea's unilateral secession (and subsequent annexation by Russia). I explain and provide some normative support for the general rule in international law: Unilateral secession is impermissible, with the caveat that there is modest support for an emerging norm allowing secession by a badly oppressed minority group.

After I wrote the column but before it went live, I had occasion to talk with a friend who grew up in Ireland and holds views of the English that are not uncommon among natives of the Emerald Isle. He expressed disappointment in the Scottish vote, which he attributed to fear. But he also opined that it was only a matter of time before other secession movements succeeded. He asserted confidently that Hawai'i would be next.

I was surprised. I explained that the U.S. would not let Hawai'i go. He responded that Hawaii's original entry into the union was coerced and that therefore the U.S. had no right to prevent Hawaii's departure. I countered that the history was legally irrelevant. Texas v. White firmly rejected any state right of unilateral secession. Moreover, just five years ago, in Hawaii v. Office of Hawaiian Affairs, the Supreme Court unanimously rejected the argument that President Clinton's formal apology to Native Hawai'ians for the role of the U.S. in overthrowing the Hawai'ian monarchy in 1893 in any way diminished Hawaii's status as a state of the Union.

Not being a lawyer, my friend was not impressed with my invocation of legal authority. But like most non-lawyers with strong opinions about legal questions, he did not think the law was irrelevant; he simply held an unorthodox view of the law, which he nonetheless believed very strongly was surely right. Think about how Tea Partiers talk about what the Constitution "really" means on any number of subjects or, for an example from the left, think about how critics of the SCOTUS campaign finance decisions talk about what the First Amendment "really" means.

Something like my friend's attititude towards law is even held by a fair number of politically active lawyers as well, although they are usually sufficiently sophisticated to be able to distinguish the positive law as declared by authoritative sources from their professedly "true" view about what the law should be. To be sure, even among lawyers, one finds a tendency to blur normative arguments for changing the law with efforts to delegitimatize the existing positive law. But the tendency is much greater among non-lawyers.

How should a lawyer talk to a non-lawyer who espouses an idiosyncratic view of the law? This issue arises quite frequently in practice. A client fixates on some issue that is emotionally salient to him or her but is legally irrelevant, such as someone's failure to apologize or failure to give notice when no notice was legally required. Experienced lawyers learn how to let the client vent but then to move quickly to ascertain the legally salient facts.

Even in the course of client representation, it is probably a good idea for lawyers to allow clients greater room to discuss legally irrelevant matters. As Professor Colb described in a June column on mediation, parties to a legal conflict may care more about legally irrelevant matters than they care about the issues that would come into play if their case were to go to court. A lawyer seeking to help a client resolve a conflict in a way that the client finds satisfying would thus do well to listen carefully to what the client regards as most important to him or her, regardless of what the law considers relevant.

In retrospect, I might have applied that same lesson to my friendly discussion about secession. I came away from the discussion thinking my friend was very badly informed, while he probably came away from it thinking I was a bit of a pedant. Our conversation might have gone better if I had made an effort in my own mind to "translate" his invocation of legal language into frankly normative non-legal claims, and engaged with it on those terms.

Tuesday, September 23, 2014

Isn't a Little Legal Assistance Better Than None At All? Maybe Not

-- Posted by Neil H. Buchanan

One of the little-known duties of tenured faculty is to review the scholarship of our colleagues, for the purposes of various internal reviews, consideration of submitted articles and books for scholarly journals and academic publishers, and so on.  This often seems like a burden, in that it distracts from one's own teaching and writing, and the scholarship to be reviewed is frequently in fields of law with which one is not intimately familiar.  Often, however, the opportunity to see what is happening outside of one's own corner of the academic universe can be an unexpected pleasure.

Last week, I reviewed an article by one of my GW Law colleagues, Professor Jessica K. Steinberg, who teaches in our clinics.  Prior to her arrival at GW a few years ago, she was on the legal staff of Stanford's Community Law Clinic, working on landlord-tenant disputes and other issues involving low-income clients.  Some of that work inspired her to write In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services, 18 Geo. J. of Poverty Law & Policy (2011).  That article is a pleasure to read, and it raises some interesting questions about the delivery of legal aid services and the difficult choices that well-meaning advocates must make in a time of ever-tighter budgets for low-income legal assistance.

Professor Steinberg's article is, I think, an outstanding example of the value of marrying careful legal analysis with data-driven inquiry.  The article sets out a series of questions about the efficacy of the provision of “unbundled” legal services to the poor, which Professor Steinberg describes as the ethically-dubious (but increasingly popular) efforts in many jurisdictions to give some basic legal assistance to poor clients, usually at the initial stages of a dispute, but without the follow-through (to the litigation phase and after, if necessary) that is the norm for legal representation of the non-poor.

The movement to provide unbundled services, Steinberg explains, is a well-motivated effort to extract the most benefit possible from the very limited pool of legal resources that is available for non-paying clients. In other words, this is not a conservative-liberal dispute, but rather a question about how to grapple with the consequences of conservatives' having won the budget wars.

Given the increasingly severe limitations on legal aid budgets over the last few decades, a new idea emerged: If we cannot give everyone the full "bundle" of legal assistance that a lawyer would typically be expected to provide, perhaps we should instead allow lawyers to provide only small doses of legal advice, on the plausible theory that a little bit of legal assistance is better than none at all.  For example, in a deeply resource-constrained environment, one might well believe that giving each of five clients one-fifth of the legal services that could instead be devoted to one client is likely to result in “more justice” in the aggregate, with four people who would almost surely have lost their cases now having at least a fighting chance to win.  Some will still lose, but the odds will have moved in their favor.

I confess that I find the intuition behind this theory to be quite strong – and, other than the concerns about legal ethics (which, again, normally require a lawyer to provide full soup-to-nuts representation to her clients), Professor Steinberg reports that many in the poverty law community have embraced the strategy.  The core of the idea is that an untutored person, intimidated by the legal system, would not even know where to begin to pursue her case, and would thus be likely to give up without taking even the most basic measures that might have worked to her benefit.  If a legal aid lawyer could only provide the client with, say, an hour’s worth of advice, offering even the most basic information about how to file forms and what to expect as the process unfolds, it seems intuitively obvious that at least some clients would find that they could then win on their own.

The visual image that comes to mind is teaching a child to ride a bicycle. With just a little bit of explanation, some encouragement and confidence building, and a few seconds of having an adult run alongside the bicycle, most children find that staying upright is easier than they thought it would be.   Sure, some will still fall and skin their knees, but the success rate is high.  Especially at the earliest stages of a legal problem, it seems similarly likely that a lawyer's brief intervention is all that would be necessary, for many disputes.

Professor Steinberg questions that presumption, suggesting that we at least need to be aware of the possibility that the legal process might actually require good representation throughout, such that even a person who is assisted in starting the process will lose at the next stage, or the stage after that. To use a completely different metaphor, legal representation might be like a bridge across a river. If the river is a mile wide, and we build only one-tenth of a mile of bridge, people who try to cross the river will still eventually get wet, and many will be swept away.

Having challenged the conventional wisdom, showing that what looked like a clearly optimal strategy might not be such an obvious winner, Professor Steinberg properly concludes that this is a question ripe for empirical inquiry.   Can we track whether people who receive unbundled services experience measurably better outcomes than those who receive no aid at all (and, obviously as a related hypothesis, worse outcomes than those who receive the full bundle of legal assistance)?

In the core section of her article, Professor Steinberg reports preliminary results of a modest empirical study, in which she “reviewed and analyzed all 474 evictions filed in San Mateo County from May 19, 2009 to August 7, 2009, plus 20 eviction cases handled by the Stanford Community Law Clinic between September 2007 and May 2009” (article at 480).  Her findings are surprising and sobering.  She concludes that, although some intermediate outcomes improve for the recipients of unbundled services, the outcomes that ultimately matter – evictions, and money paid to (or received from) landlords – stay the same.  The clients, it seems, really are led to the edge of the metaphorical unfinished bridge, at which point they inevitably plummet into the river.  (I confess that I have tried to figure out a way to combine my metaphors, imagining a lawyer pushing a poor client on a bike off the edge of an unfinished bridge, but sometimes metaphors must simply to be abandoned, once they have served their purpose.  I think it was when I was going to add sharks to the waters below that I knew things had gone too far.)

Professor Steinberg's statistical analysis is straightforward, comparing the experiences of the different groups of parties with respect to outcome-based questions (successfully avoiding eviction, money exchanged between landlords and tenants), showing that there is no statistically significant difference (based on chi-square tests) between the outcomes of people who receive no assistance versus those who receive unbundled assistance.  Professor Steinberg then compares the interim success of the different groups, showing that the recipients of unbundled services do avoid some procedural errors, but that ultimately it does not matter.

She also demonstrates that the small, lucky group of people who do receive the full bundle of services really does experience dramatically better outcomes than either of the other two groups.  She does not emphasize that point, I suspect because that outcome seems so obvious, but it is important to note (as I discuss below) that we are not talking about a client base that loses all the time, no matter whether they have lawyers or not.

With the dataset that Professor Steinberg assembled, there is no reason to go for overkill with a multiple regression analysis, and her approach gleans plenty of interesting information from those data.  The more fundamental question is whether her data can be treated statistically as if they were from a randomized experiment, which is what we implicitly assume when we apply various tests of statistical significance.  If the data are not actually randomized, then it might be the case that we could learn nothing at all from the analysis.

Appropriately, Professor Steinberg explains that the data could be tainted by self-selection bias. Essentially, she suggests that there could be a good reason that the recipients of unbundled services ultimately lose their cases: Their cases might be losers!  It is possible, after all, that the people who are completely unrepresented do not seek representation because they have figured out a good way to proceed, and there is an obvious merits-based argument on which they could win.  Perhaps only those people who see no good arguments on their own then apply for unbundled representation.  If that were the case, it would actually be an extraordinary affirmation of the power of unbundled legal services that the partially lawyered clients could achieve outcomes as good as (or, more accurately, no worse than) the people who actually had good and obvious arguments in their favor in the first place.

Professor Steinberg acknowledges (even highlights) this potential problem, but she argues (and I agree) that the results of her statistical comparisons are still useful.   She writes: “The purpose of the study was not to reach incontrovertible or generalizable conclusions about the provision of unbundled legal services, but instead to use the resources available, and an ethically-feasible methodological design …, to make a preliminary assessment of the efficacy of one iteration of the unbundled model” (article at 457) (emphasis added).  Having acknowledged that the non-randomization of the data offers an alternative hypothesis to explain her findings, she has set the stage for further research, providing “at least some evidence-backed information about [unbundled legal services’] impact on procedural and substantive justice for litigants” (id.).

I would analogize this to the “burden-switching” rule in Title VII litigation.  If we see an employment category in which 90% of the workers are men, then the employer is obligated to provide a non-discriminatory explanation for the disparity.  If such an explanation is provided, then further inquiry is necessary.  Similarly, in empirical research, one does not say, “Well, you have not taken everything into account in this single study, so we will simply ignore your findings.”  Instead, when we identify a statistically interesting result, we hypothesize about possible alternative explanations, precisely because the initial finding piques our curiosity.

As an alternative to Professor Steinberg’s findings, imagine that she had instead found statistical evidence that the partially represented clients won as often as fully represented clients do, which is four times higher in the case of evictions than completely unrepresented parties’ results.  (See article at 483, Table 1).  That would be such a strong confirmation of the “bicycle analogy” above that it would lead to a very different research agenda than her actual findings suggest.  More importantly, for people who must make decisions about real-life policies in the face of incomplete information, this alternative set of findings would have provided extraordinarily strong reason to redirect resources into unbundled services.

This difference in the legal outcomes for the fully lawyered clients also offers a reason to think that the self-selection possibility described above is not biasing the results.  After all, if the idea is that the people who do not bother to go to the clinic are the ones with the stronger cases, then the people who walk through the clinic doors all have presumptively weaker cases.  If the full bundle of legal services is so much more successful than unbundled services (and no services at all), however, then the problem cannot be that the cases cannot be won.  We might then reasonably infer that it really is the provision of bundled services that changes the outcomes so dramatically.

In any event, Professor Steinberg does not at all over-claim in the paper, and she fully acknowledges that this is the beginning of a potentially important inquiry, not the end.  Even so, her findings would be extremely important for any policymaker to take into account when allocating scarce legal aid resources, at least offering reasons for skepticism in the face of suggestions to expand unbundled legal services.

In short, this article is only as imperfect as every other empirical study inevitably must be.  I am often skeptical of what now counts as "empirical legal studies," because so much of that work (like the work on which it is modeled from Economics departments) is technique-obsessed, focusing on the latest statistical fads rather than thinking carefully about the underlying policy questions.  Because of Professor Steinberg's article, we know more about an important policy question than we used to know.  That is the ultimate test of good scholarship.

Monday, September 22, 2014

What Would Cert Denials in the SSM Cases Mean?

by Michael Dorf

Speaking at the University of Minnesota Law School last week, Justice Ginsburg made news when she said that there would be "some urgency" for the SCOTUS to take a SSM case if the Sixth Circuit were to reject a right to SSM, but a judgment that falls in line with other circuits would mean there would be "no need for us to rush." Although SSM opponents seized on these remarks as evidence of disqualifying bias (good luck with that), in fact the more natural reading of Justice Ginsburg's juxtaposition of the two situations reflects the application of a straightforward certiorari criterion: Until at least one federal appeals court rules against a right to SSM, there will be no "circuit split" on the issue warranting the immediate attention of the SCOTUS.

I think that is almost certainly how Justice Ginsburg meant her remarks (although I also think it just about certain that, when the Court decides a challenge to a SSM ban, she will vote to invalidate it). But I want to suggest that the application of the wait-for-a-split approach to SSM would be anything but routine, given the Court's prior disposition of the two cases seeking stays of judgment pending appeal. In January in the Utah case and again last month in the Virginia case, the Court--without any registered dissents--stayed the enforcement of judgments invalidating SSM bans. Denial of cert would terminate those stays, clearing the way for same-sex marriages in all of the states in circuits that have ruled in favor of a right to SSM. But if the Court then eventually grants cert in a different case, and rules against a right to SSM, there will be a good deal of uncertainty surrounding the status of the couples who married in the interim.

As I explained last December, I think the relevant federal courts precedents are probably best read to grant--at most--protection to the interim marriages for acts performed while they were deemed valid, but that federal courts lack power to "grandfather" couples married during the pendency of a subsequently reversed federal judgment. However, my analysis in that blog post was based on the assumption that federal court A says that the law of state X is invalid but that the judgment is later reversed. In the hypothetical scenario we're now imagining, the judgment would not be reversed; it would be affirmed; but following that the governing law would change. How would that affect things?

Once again, I think we would see substantial legal uncertainty. In states that failed to appeal rulings invalidating their state SSM bans, particular plaintiffs would be entitled to be treated as married. However, anyone who was not a party to the litigation probably would not be entitled to be treated as still married. Why not? Because the general rule says there is no non-mutual issue preclusion against the government, so these couples could not take advantage of the earlier judgment as a matter of preclusion law. And the circuit-level precedent invalidating the SSM ban would be wiped out by the (hypothesized) subsequent SCOTUS ruling upholding SSM bans.

Consequently, I conclude that if there is any substantial chance that the SCOTUS will eventually uphold SSM bans, then the same sorts of factors that led it to grant stays of judgment in the Utah and Virginia cases should lead it to grant cert in one of the pending SSM cases now.

To be sure, there is another option besides granting or denying cert. The Court could choose to neither grant nor deny the pending cert petitions but simply "hold" them pending the development of a circuit split. But doing that--while the stays of the underlying judgments remain in place--would seem unfair to the victorious plaintiffs and would create the impression that the Court is simply trying to duck the issue as long as possible, contrary to another claim by Justice Ginsburg.

In light of the foregoing, a decision actually to deny cert in any of the pending SSM cases would be a very strong signal that the Court's ultimate decision on SSM is a foregone conclusion in favor of invalidating state bans, because only by invalidating SSM bans would the Court avoid the uncertainty that would follow if multiple states had to deal with interim same-sex marriages that became retroactively illegal.

 So . . . Justice Ginsburg may have only meant to make a bland statement about the operation of the Court's cert criteria, but if she thought through the consequences of what she was saying, then she was signaling a likely merits ruling from the SCOTUS in favor of a SSM right: A Court on which not even four Justices feel any urgency to resolve the SSM issue until an appeals court rules against a SSM right is a Court that is overwhelmingly likely to recognize a right to SSM.