Saturday, October 20, 2018

Book Review: Corporations are People Too

By Eric Segall

I just finished reading a great new book by Professor Kent Greenfield of Boston College Law School called "Corporations are People Too (And They Should Act Like It)." For anyone interested in what constitutional rights corporations should possess, or in corporate rights and responsibilities generally, this book is a must read. Greenfield is one of the very few law professors in America with a serious background in both constitutional and corporate law, and his double expertise is reflected in almost every chapter of the book.

The essential thesis of the book is that the law does and should treat corporations as people, and the strong anti-Citizens United  movement arguing that corporations are not people is deeply misguided. At the beginning of the book (pp. 2-3), Greenfield points out that, first, for a very long time corporations have been deemed people under a myriad of legal regimes because corporations can sue, be sued, and "own and sell stuff" all "in their own names and legal capacity." Second, he points out that, of course, corporations "are made up of people. Corporations are collective bodies in which humans come together ...to create goods and services to sell for a profit." Third, as an historical matter, corporations have been allowed by the courts to assert constitutional rights since the beginning of the 19th century.

After reading these opening pages, I was convinced that the twin ideas that corporations are not people, and/or that corporations shouldn't have constitutional rights, were absurd. As Greenfield points out, of course Exxon has a Fourth Amendment right to be secure in its property just as obviously as the New York Times has the first amendment right to publish any editorial it wants without government interference.

Friday, October 19, 2018

"Horseface," "Tiny," and "Rhetorical Hyperbole" in the Stormy Daniels Case

by Michael C. Dorf

Earlier this week, Federal District Court Judge S. James Otero issued an order dismissing the defamation lawsuit by Stephanie Clifford, aka Stormy Daniels, against Donald Trump. After Clifford had said that in 2011 she was threatened by a man who worked for Trump or then-Trump-attorney Michael Cohen, Trump tweeted that the threatener was "nonexistent" and that Clifford's story was "a total con job." Clifford sued Trump for defamation on the ground that calling her a liar was, well, defamatory. Judge Otero dismissed the suit. He did not say that Trump was right. Instead, the judge said that Trump's statements were not to be evaluated under ordinary standards of truth, because they were mere "rhetorical hyperbole" that a reasonable person would not expect to be true as such. I think that's probably wrong.

Thursday, October 18, 2018

For the Good of the World, We Should Drop the Pulitzers and Faux-Nobels

by Neil H. Buchanan

Last week, the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel was awarded to Professors William Nordhaus and Paul Romer.  Nordhaus won for his work on the economics of climate change, Romer for studying how economic growth responds to the creation of knowledge.

I have nothing to say here about either economist or his work, although I might write something about one or both of them in the near future.  I should add that I am not ignoring them out of disrespect.  They seem like fine choices, within the confines of that prize.  But it is those confines that I want to address here, in large part to compare them to the limitations of another prestigious award, the Pulitzer Prize.

Longtime readers of this blog might recall that I am a stickler about calling the economics prize what it is (see the first line above) -- and not calling it what it is not: "The Nobel Prize in Economics."  My column on this subject from 2009 provides the facts on that score.  The bottom line is that it simply is inaccurate to call it an Economics Nobel, and the angry insistence by many economists that the difference is a mere technicality simply demonstrates how desperately they are trying to gain undeserved prestige by renaming their prize.

Although I often take economists to task for various reasons, a much more frequent target of my critical commentary has been the American press, especially what can still accurately be called the print media (although I have not read a printed physical newspaper in years).  Indeed, I have written so many negative things about the prestigious papers' news coverage that I had to take a step back this past summer and ask, "Is It Time to Ease Off On the Media Criticism?"  With Donald Trump calling a free press the enemy of the American people, it is important to remember that constructive criticism -- especially highly negative constructive criticism -- can feed into a dangerous narrative.

My goal here, therefore, is not to bash the press but to continue to point out that mainstream media types respond to perverse incentives.  And that can have very unfortunate effects in the real world -- effects that endanger the press itself and ultimately constitutional democracy.

Wednesday, October 17, 2018

Originalism in the Classroom?

By Eric Segall

Over the last two days, numerous folks on social media, triggered by a blog post by John McGinnis, have lamented, in McGinnis' words that "it would be malpractice for law professors "not to describe originalism as an important theory of constitutional interpretation." He went on to say the following:

There is reason to believe that many professors are failing to give their students a fair minded introduction to originalism. The first is anecdotal. I have given talks at law schools across the country. I hear from students that originalism is generally given short shrift and Scalia opinions are often simply ridiculed. The second is sheer ignorance. Most constitutional law professors are not constitutional theorists and do not study originalism as part of their scholarly enterprise. It is all too easy then for political bias to lead them to denigrate or downplay a theory that has been associated with conservatism, when they are themselves, as studies show, likely to be left-liberals.
As originalists on Twitter like Randy Barnett agreed with and repeated this refrain, I raised an issue that I discuss at length in my (finally available) book Originalism as Faith. What would it mean to teach originalism in  a world where that term no longer has any identifiable content other than as a political signal or an article of faith?

Pre-Existing Conditions, Severability, and the "When" Question in Statutory Construction

by Michael C. Dorf

In my latest Verdict column, I take aim at one of the many lies in the op-ed that appeared last week in USA Today under Donald Trump's name--the claim that the president has kept his promise to protect health insurance for people with pre-existing conditions. I explain that the claim does not pass the laugh test. Among the reasons I give is the administration's support for a pending lawsuit by Texas and nineteen other states that, if successful, would invalidate the Affordable Care Act's prohibition of screening out or charging extra for persons with pre-existing conditions.

The column describes the lawsuit's key argument in greater detail, but the very short version goes like this: (1) the ACA's individual mandate was upheld by the SCOTUS as a tax; (2) Congress eliminated the tax late last year as part of its tax cut law; (3) therefore the mandate no longer has a constitutional basis; (4) the mandate was designed by the Congress that enacted the ACA to work hand-in-glove with the protections for people with pre-existing conditions; (5) thus, a court cannot sever the mandate from those protections; and (6) accordingly, the protections are invalid.

To decide a severability question, a court must determine whether Congress would have wanted the portions of the statute that do not by themselves violate the Constitution (here the pre-existing conditions protection) to remain operative without the  invalid portion (here the mandate without the tax). I say in the column that the non-severability claim made by Texas is extremely weak, because we don't need to guess what Congress would prefer: Congress, just last year, told us what it prefers. It left the rest of the ACA intact when it reduced the tax to $0.

Nonetheless, at a hearing last month, Federal District Judge Reed O'Connor seemed sympathetic to the non-severability argument. My column notes that while that is alarming, it should not be surprising. Over the last eight years, Republican-appointed federal judges have been remarkably receptive to what we might politely call "creative" arguments that aim to destroy the ACA. But there is--or at least should be--a difference this time. While in prior challenges to the ACA, conservative legal scholars crafted some of the arguments that conservative judges accepted, to their credit, conservative legal scholars have joined with more liberal ones in arguing that Texas's non-severability argument is unpersuasive.

I am thus cautiously optimistic that the courts will ultimately reject the argument for non-severability. The issue deserves some attention, however, because there is no guarantee that the case will come out right, and it raises a question of wider importance.

Tuesday, October 16, 2018

Insecure Masculinity Is the Glue That BInds Conservative Elites and Their Base

by Neil H. Buchanan

The end of the Kavanaugh confirmation travesty, which now seems a million years ago, overlapped with the blockbuster story in The New York Times about the Trump family's decades of tax dodging and other scams.  Or it would have been a blockbuster story in anything resembling a normal universe.

The Times showed, through meticulous research, that young Donald Trump's father had not merely given his son the mythical "small loan of a million dollars" (which Trump insists he repaid with interest) that put Trump on the path to unimaginable success.  By evading the estate tax and other taxes in a variety of ways (and I do mean "evading," which means illegal underpayment of taxes), not to mention by making money from government contracts and exploiting low-income renters, Fred Trump ended up transferring a total of $413 million (in inflation-adjusted dollars) to his son.

The Kavanaugh and Trump stories are actually connected by a common bond of clueless, angry entitlement.  Even more importantly, the sense that each man has of his own greatness and their shrieking horror at any suggestion of not being a "self-made man" are the keys to understanding both men's connection with Trump's non-elite white male cheering section.  Male insecurity runs the world.

Monday, October 15, 2018

The Dangers of Mutual Radicalization

by Sidney Tarrow

Soon after the election of Donald Trump, a wave of protest bubbled up against the new president and his policies. Beginning with the “Women’s March,” followed by protests on behalf of gun control and against the threat of climate change, and led by new groups like Indivisible and old ones like the ACLU, the movement reached into the legal profession when Trump, soon after entering the White House, abruptly  announced a painful and chaotic ban on refugees and others from several majority-Muslim countries (as described by Michael Dorf and Michael Chu here). When the #MeToo and Never Again movements emerged, it began to seem as if American civil society was rising up in a body against the excesses and outrages of the new administration.

Academics and activists soon collected these varied movements under the rubric of “The Resistance,” but as David Meyer and I argued in our recent book, The Resistance: The Dawn of the Anti-Trump Opposition Movement, that label may say too much and too little. It may say too much because it assumes that the varied protest movements are a coherent whole, and it may say too little because it fails to examine the challenges that the Resistance poses to its supporters. 

Three of these challenges are the most important: first, the proliferation of activist sites and new groups has led to a failure to identify an overarching policy goal – apart from the proximate one of opposing Trump; second, there is a gap  between those who want to defend our institutions against the president and his enablers and those who want to tear down the institutions that facilitated his rise; and, third, there is the danger of mutual radicalization. As was revealed in the conflict that erupted over the Kavanaugh nomination, the third is the most pressing, and could easily weaken The Resistance.

Friday, October 12, 2018

I Feel Pretty: What If Brett Kavanaugh's Female Law Clerks Are All Beautiful?

by Sherry F.  Colb

Mostly lost amidst the credible testimony and ignored accusations of sexual assault against Brett Kavanaugh was a story about his law clerk hiring practices.  The story suggested that (a) all of then-Judge Kavanaugh's female law clerks have looked like models; (b) this is no accident; (c) Professor Amy Chua at Yale Law School groomed some of the female students for these clerkships by asking applicants to send her selfies in the outfits they planned to wear to the interview; and (d) Professor Jed Rubenfeld of Yale Law School, husband of Professor Chua, advised female students that Judge Kavanaugh liked his clerks to have a "certain look." Chua vociferously denied the story, which in turn led a former student to say that Chua was "lying" in her denial.

Needless to say, this story raises some questions. And if Kavanaugh has done what he is accused of doing, it puts the fact that he has a very strong record of hiring female law clerks in a less-than-feminist light.