Monday, August 31, 2015

Journal Publishes a Modest Proposal to Bomb Law Schools--Unironically

by Michael Dorf

A recent article in The Guardian called my attention to a grotesque law review article that appeared in the National Security Law Journal (NSLJ), a student-edited journal at George Mason University School of Law. The article by William Bradford, an assistant professor in the Department of Law at West Point (and formerly a law faculty member at the University of Indiana), is a 180-page McCarthyite screed against foreign and domestic enemies--including civil rights attorneys, the U.S. Supreme Court, the Obama Administration, and especially the legal academy--for their ostensible support for Islamist enemies in the long war in which the U.S. is engaged.

I use the term "McCarthyite" literally. Although much of Bradford's article offers a reading of the law of war at odds with the reading of those whom he criticizes--which is fair enough--his tone is far from academic. He labels those with whom he disagrees cowards, anti-Americans, and fifth-columnists. More directly to Bradford's McCarthyism, he urges that scholars who cast doubt on the legality of U.S. detention, targeting, and other military practices be required to take loyalty oaths, stripped of tenure and lose their jobs, called before "a renewed version of the House Un-American Activities Committee," prosecuted for giving material support for terrorism and treason, and subject to military treatment as unlawful enemy combatants.

That last proposal entails the use of military force, presumably including bombing. Bradford writes: "Shocking and extreme as this option might seem, [these] scholars, and the law schools that employ them, are--at least in theory--targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism." On second thought, to label Bradford's article "McCarthyite" is unfair to the late Senator Joseph McCarthy, who never proposed anything like bombing U.S. universities.

Bradford's article is absurd and, to their credit, the student-editors of NSLJ published a response by Jeremy Rabkin, a respected (former longtime Cornell, now George Mason) conservative scholar. Rabkin rightly pulls no punches in describing Bradford's article as deranged. Rabkin concludes his response by urging the NSLJ editors to acknowledge that they made a mistake in publishing the Bradford article and then to implement steps to prevent further lapses in the future.

The NSLJ did indeed acknowledge that publishing the Bradford article was a mistake and promised a review of its article selection processes. I could quibble with the characterization of the selection of the article as merely a mistake. It was a mistake in the way that politicians issuing non-apology apologies say that "mistakes were made" or that politicians and celebrities excuse their own deliberately bad, even criminal, conduct as a mistake. But this would be a quibble. Professor Rabkin asked for the acknowledgment of a mistake and so the NSLJ editors obliged in those terms. Moreover, it is clear that the current editorial board did not decide to publish the Bradford article. Characterizing their predecessors' grossly incompetent judgment as merely mistaken is perhaps a way of avoiding piling on.

The NSLJ acknowledgment of its mistake goes on: "We cannot 'unpublish' [the Bradford article], of course, but we can and do acknowledge that the article was not presentable for publication when we published it, and that we therefore repudiate it with sincere apologies to our readers." And yet the NSLJ did unpublish the article, after a fashion. On the webpage that lists the contents of Volume 3, Issue 2, links are provided for all of the articles and essays except for the Bradford article. At the same time, clicking on the link on that same page to download the entire issue produces a file that does contain the Bradford article. It can also be found in print and on subscription databases like Westlaw, Lexis, and HeinOnline.

But I recommend that interested readers get their copy from SSRN, where Bradford has (one has to assume inadvertently) uploaded a near-final draft that includes marginal comments back and forth with the student-editors. They are revealing in at least two respects.

First, it is stunning to see the student-editors focusing on minutiae such as whether a source supports a statistical claim that Bradford makes, while almost completely overlooking the outrageous substance of his article. I have sometimes noted some of the advantages of student-edited journals over peer reviewed journals (e.g., point 3 here), but the tendency to miss the forest for the trees is a clear disadvantage, displayed disastrously in the editing of the Bradford article.

Second, in the final printed version, Bradford only says by implication that the U.S. military should be able to kill law professors with views he believes to be in error. The final version says that these scholars "can be targeted at any time and place and captured and detained until termination of hostilities." The rest of the paragraph makes clear that such targeting includes "attacks" with "nonprohibited weapons," but a careless reader might miss the implication that Bradford is advocating killing dissident legal scholars. His original draft was unambiguous. There he apparently wrote that such scholars "can be targeted and killed at any time and place" (emphasis added). A student-editor asked in the margin whether it was "okay to delete 'killed'?" In a rare display of moderation, apparently Bradford was content to make the point only by strong implication. But the draft underscores his clear intent.

Friday, August 28, 2015

From "Privacy" to "Liberty" to "Sexuality"

by Michael Dorf

As I noted a week ago, last weekend I spoke on a plenary panel at the American Sociological Association meeting in Chicago. Here I'll give a brief report in the style of a What I Did Last Summer essay that an elementary student might write for the beginning of the term. As the title of this post suggests, I'll connect it to a broader issue in constitutional law.

The first thing I'll note is that the conference was enormous, both in terms of the number of attendees and the number of sessions. I was told there were over 6,000 attendees. I haven't checked exact figures, but that feels an order of magnitude larger than the Association of American Law Schools (AALS) annual meeting, which is my own point of reference for a large conference. I suppose that makes sense. There are just over 200 ABA-accredited law schools in the U.S. but there are nearly 3,000 four-year colleges (and about half that many two-year colleges), most of them with sociology departments. So, upon reflection, it's not surprising that the conference is very large.

I was at first surprised that the conference organizers were able to schedule such a large conference with hundreds of panels on "Sexualities in the Social World," as the conference was themed. Were there really that many sociologists whose work focuses on sex? However, as the introductory material to the conference pointed out, sexuality--broadly defined--touches on virtually every aspect of life, including law, religion, education, mass media, military conflicts, and much more. For example, a panel on sexuality in the work place featured the work of three scholars, one studying how gender norms affect African American professional men, another looking at how women fare in STEM fields, and a third who reported on the challenges facing LGBTQ K-12 public school teachers. And that was just one of over 300 scheduled sessions.

I could write many blog posts about the work being done by some of the people I met at the ASA conference, but here I simply want to highlight one small piece of the framing. The very first line of the introductory materials for the conference begins: "Sex usually occurs in private and is seen as deeply personal, yet it is also profoundly social." That's right of course, and it connects to a long-recognized oddity of the Supreme Court's jurisprudence involving sexuality. For a time, anyway, that jurisprudence was framed as a right to "privacy."

Partly this is a matter of historical accident. The leading modern case protecting sexuality is Griswold v. Connecticut, in which Justice Douglas rooted the right of married couples to use contraception in "notions of privacy surrounding the marriage relationship." Griswold's reliance on privacy is sometimes criticized on the ground that no one was prosecuted for using contraception in a marital bedroom in the particular case; it was a test case brought by Planned Parenthood officials who were charged as accessories for distributing contraceptives. This sort of criticism is overstated. As Professor Colb has explained, Griswold itself can really be defended as involving Fourth Amendment privacy. It does not follow, however, that all of the cases building on Griswold are best conceptualized as privacy cases.

Partly in response to the fact that the Fourteenth Amendment does not include the word "privacy," about 25 years ago the Court began shifting the nomenclature of the rights formerly recognized under the rubric of privacy. For example, in Obergefell v. Hodges, the majority opinion only uses the "right of privacy" phrase once, and then embedded in a quote. The dissents use the term in quotation marks to indicate disapproval.

In Obergefell, as in other opinions written by Justice Kennedy, the term “liberty” plays the role formerly played by “privacy.” “Liberty” has the advantage of appearing in the text of the Fourteenth Amendment and, in addition, it captures the greater breadth of interests at stake. Whereas married couples subject to the contraceptive use prohibition in Griswold really were at risk of suffering harm to marital privacy, the right to marry itself is mostly about public aspects of marriage—both concrete benefits such as inheritance and insurance eligibility as well as the intangible benefit of being able to hold oneself out as married. Justice Kennedy’s use of the term “dignity” can be understood as referring to these intangible benefits. Although some critics (such as Justice Thomas in his Obergefell dissent) are no happier about “dignity” than they are about “privacy,” it better captures some of the aspects of the reasons for protecting a right to marry.

One could imagine a line of doctrine specifically protecting a right to dignity and then expounding on its implications in particular cases. Indeed, case law in other constitutional democracies does just that. However, for Justice Kennedy (and thus the Court) dignity is not the substantive right itself, so much as it is an interest that counts as a reason for protecting particular aspects of liberty.

Yet “liberty” itself is too broad a term. Critics have a point when they say that just about anything that anyone wants to do could count as an exercise of “liberty.” Indeed, that’s why libertarians (like Randy Barnett) couch their account of constitutional rights as presumptively protecting liberty. But what looks to Barnett and other libertarians like a virtue of shifting to the language of liberty looks to most constitutional scholars and judges like a vice. If all  infringements on liberty are going to trigger heightened judicial scrutiny, then we really will be back in the Lochner era—as the libertarians want and the rest of us fear.

Accordingly, I understand that Justice Kennedy now uses “liberty” as a kind of term of art to mean more or less what used to be meant by “privacy.” Sometimes one sees the word “autonomy” in the case law and academic literature, but to my mind autonomy is no more specific than liberty, and thus has the same defects, while lacking the virtue of liberty’s connection to the constitutional text. I think that the doctrine would be cleaner if instead it were reformulated in more or less the following way:

What was once recognized as a right of “privacy” is more properly understood to encompass a number of fundamental interests, including: privacy from government snooping about one’s intimate affairs—sexual or otherwise--absent a very good reason (as in Griswold); the interest in forming and maintaining close personal relationships (encompassing not just marriage but the child-rearing cases); sexuality understood as sexual activity (generally undertaken in private but protected for reasons that go beyond preventing the government from acting as a peeping tom); and sexuality understood as identity, although much of this work could alternatively be delegated to notions of equality.

I’m not enough of a legal formalist to think that very much turns on what labels the courts use to group categories of cases. The Justices who oppose a right to same-sex marriage or a right to gay sex would continue to oppose these rights regardless of what the majority Justices called them. However, so long as the Court has moved away from the somewhat misleading term “privacy,” it may as well adopt more accurate terminology.

You’re welcome.

Thursday, August 27, 2015

Why Am I Attacking Economists -- Almost ALL Economists?

by Neil H. Buchanan

The first several paragraphs of my most recent Dorf on Law post made clear (once again) that my general attitude toward what passes for modern economics might best be described as poorly contained contempt.  The title of the post itself -- "Why Am I Defending Economists -- Especially THESE Economists?" -- expressed my discomfort with the idea that I was taking the side of some prominent economists who had recently been wrongly criticized for being politically naive.

That two of those economists -- Martin Feldstein and Greg Mankiw -- are among the economists whose views I generally find least credible (and often ridiculous) made it ever so much worse.  Fortunately, an op-ed that was published in The New York Times that same day reminded me of the fundamental reason why economics (as it is currently practiced nearly everywhere) is so damaging.  I am back in my comfort zone.

In "The Case for Teaching Ignorance," an author named Jamie Holmes describes how scientists overstate how much they know and understate how much they do not know.  Focusing mostly on medical science, the op-ed noted that students can come out of science courses believing, for example, "that we understand nearly everything about the brain."  The author points out that this can deaden students to the thrill of intellectual inquiry, because it makes them think that the point of learning is to absorb existing knowledge, rather than to become aware of the limits of knowledge, which is the only way they will become excited about trying to answer interesting and important questions.  In the author's words, "focusing on uncertainty can foster latent curiosity, while emphasizing clarity can convey a warped understanding of knowledge."

Interestingly, the op-ed opens with a story about a surgery professor who wanted to teach a class called "Introduction to Medical and Other Ignorance."  The professor was ultimately able to teach the class, but it was evidently a struggle to have it approved.  The background assumption against which she was operating was that students need to told what we know (and that we know a lot), rather than being let in on the dirty secret about how little we actually know in many areas of inquiry.

As a graduate student in economics, I frequently taught the Principles of Economics course (which some Dorf on Law readers will know as Ec10).  The lead professor in that course was none other than Martin Feldstein, who gave the opening lecture or two of each semester, before turning over the actual teaching of the course to graduate students like me.  In those lectures, Feldstein did everything possible to convince our students that economists know a lot of truths about the world, and especially that we now know that some foolish things we believed in the past are not true.  Students could thus confidently absorb what he was about to tell them as the established truth about economics.  He then offered a series of highly dubious claims that supported conservative policy views.

In some ways, that conservative slant (and the insistent pose that he was not being at all political) was the less disturbing aspect of Feldsteins' performance (which was repeated annually in front of about 800-900 students).  I found myself much more annoyed by the pretense of scientific certitude.  Per Feldstein, economics is a science that accumulates knowledge and never retraces its steps or moves in different directions.  How could it, when there is one truth, and we are moving directly toward it?  The NYT op-ed captures the problem with this attitude, noting that "many scientific facts simply aren’t solid and immutable, but are instead destined to be vigorously challenged and revised by successive generations. Discovery is not the neat and linear process many students imagine."

Admitting as much, however, would undermine the political agenda for someone like Feldstein.  Interestingly, but not surprisingly, it was Mankiw who eventually took over teaching Ec10 from Feldstein.  Mankiw's conservative political slant has been so extreme that he has been the subject of protests from students, who are begging for some balance in the class.  But for Mankiw, and Feldstein before him, such protests are silly, because students are simply supposed to accept that the course offers them the opportunity to absorb What We Know about economics.

Such an attitude is hardly confined to two of Harvard's leading conservative economists.  (Harvard's reputation for liberalism aside, the Economics Department also houses Robert Barro and Alberto Alesina.  And the History Department is home to Niall Ferguson.)  In my last gig in an economics department, I was approached by an older professor who was involved in a project to teach economics in high schools.  He was developing a model curriculum for use nationwide.  What was he teaching them?  "I just want them to know the things that all economists know are true.  Minimum wages are bad.  Money growth always causes inflation.  You know, the scientific facts."

The larger problem here is not just that economists think that they know a lot more than they know.  It is that they -- much more than the surgery professor who wanted to teach a course about ignorance -- find it of surpassing importance for the world to believe that economics is a science.  If even "real doctors" encounter hostility to the idea that they should acknowledge where their realms of knowledge end, it is easy to see why pseudo-scientists like economists insist on presenting their field as a "neat and linear process," lest their views be "vigorously challenged and revised by successive generations."  It is too terrifying even to contemplate admitting the truth.

There are, of course, instances in which conservatives will admit that we do not know things.  A talking point has emerged among conservative economists, for example, that there are simply no good economic theories to explain how to deal with the aftermath of the Great Recession, in both the U.S. and Europe.  This is what drives Paul Krugman crazy, and understandably so, because that move simply ignores the excellent track record of even the simplest Keynesian economic model in explaining persistent sluggishness, the failure of inflation to emerge even in the aftermath of massive monetary stimulus, and low interest rates in a world with relatively high government deficits.  "Well, no one really knows nuthin', anyway," is thus a useful dodge when the conservatives' supposedly True Scientific Knowledge fails.

In a Dorf on Law post last year, I offered a different reason that scholars might resist admitting ambiguity.  A biologist who specializes in evolution and climate science had contacted me, describing how he had tried to teach a course at his university which would allow students to explore the boundaries of what we know about evolution.  Even the scientists who fully understood the pedagogical value of such a course resisted having it taught, because the people who want to pretend that "the science is still out" on climate change and evolution would surely grab onto any news that a Real Scientist was admitting that those theories are incomplete.

The difference between real science and modern economics is not that the former possesses unchallengeable truths, while the latter is unmitigated mush.  The problem is that economists are so deeply invested in the scientific dodge.  (An MIT economist, defending her conservative conclusions on education policy, once told an interviewer that she was not concerned with politics, because "I'm a scientist.")  More than almost any other field, economists cannot admit that their worldview is unscientific -- even though they could do so (as Krugman does) and still at least have the opportunity to show that their non-science can contribute to the policy debate.  For far too many, their professional self-image is too fragile to allow them admit the truth.

Wednesday, August 26, 2015

Understanding Xenophobia Dirty Harry Style

by Michael Dorf

In the aftermath of NFIB v. Sebelius various commentators (including me) noted that during the period before the case was decided, liberals tended to dismiss as preposterous the arguments that conservatives made for the proposition that the federal government cannot use its Commerce Power to regulate the multi-billion-dollar health insurance industry via a purchase mandate. We liberals didn't take those arguments seriously because we didn't share the conservatives' underlying values and, not sharing them, we under-estimated how much the arguments would appeal to judges and Justices who do share those values.

In my latest Verdict column, I warn that something like that is at least within the realm of thinkability with respect to birthright citizenship. The leading precedent, U.S. v. Wong Kim Ark, makes it very difficult to argue that children born in the U.S. to undocumented immigrants aren't citizens but the question is technically still open under SCOTUS precedents. In a Facebook post last week (not public, as is the nature of FB), Harvard Law Professor Mark Tushnet raised the possibility that we liberals could be making the same mistake of thinking that our reading of the precedents is obvious because we do not share the anti-immigrant sentiment of the Trump-led anti-immigration right. My column adds in the possibility that an anti-immigration Republican president could appoint a few sympathetic Justices.

To be sure, even doing my best to account for my own policy disagreement with the anti-immigration position, I think that the argument for denying birthright citizenship to the children of undocumented immigrants is weak, but then, it's always hard to be sure that one is accounting for one's own biases. In any event, even if we assume that children born in the U.S. to undocumented immigrants are entitled to birthright citizenship absent a constitutional amendment, it is worth responding to the substantive policy argument made by immigration foes. And in order to respond effectively to the argument, it is useful to have a sense of what's driving it.

The anti-immigration crowd's chief stated argument against birthright citizenship is that it leads to what they call "anchor babies"--a term that is widely regarded as offensive. The claim is that undocumented immigrants come to the U.S. to give birth, so that their children will be U.S. citizens and thus "anchor" their claims to stay. As explained in a Washington Post article last week, the claim is surely wrong: Having a U.S. citizen child does not confer any right to stay in the country--although the enjoined Obama Adminsitration program would have created the possibility of temporary deferred action (but not legal status) for undocumented immigrant parents of U.S. citizens (as discussed on DoL by Professor Kalhan here).

In my view, however, the fear of "anchor babies" as incentive is a post-hoc effort to come up with a seemingly rational policy concern. The underlying sentiment is more visceral--and Trump's outrageous claims about Mexico "sending" rapists and murderers taps into its core. It may be helpful to understand the real concern by reference to a Clint Eastwood movie.

Directing and starring in the gripping but disturbing 2008 film Gran Torino, Eastwood plays Walt Kowalski, a bitter widower who remains in his Detroit neighborhood long after the other white people--including his grown sons and their families--have left. Walt is a type that only Eastwood could play: a late-70s (at the time) racist action hero with a heart of gold. He uses multiple racial slurs to describe his Hmong immigrant neighbors. (Partial spoiler alert!) The action centers around Walt's relationship with teenager Thao (played by Bee Vang). Under pressure, Thao reluctantly joins a local gang and must steal Walt's Gran Torino as his initiation. He botches the job and then ends up working for Walt as penance. They eventually become close and Walt--as a kind of aging Dirty Harry--takes on the now-estranged gang to defend Thao and his family.

The story is partly redemptive. We come to see Walt's racist language as superficial. His only friend is a barber of Irish descent, with whom Walt trades ethnic insults, so we are led to think that racism is simply a mask that Walt wears to hide his unexpressable feelings. Likewise, Walt's prejudice against the Hmong--whom he sometimes conflates with the North Koreans and Chinese he fought fifty years earlier--is only superficial. Walt's real disaffection is with the young. He comes to respect his adult Hmong neighbors, but with the exception of Thao and his sister Sue (played by Ahney Her), Walt despises the younger generation. The story's villains are second generation Hmong-Americans--the "anchor babies" their parents would have had if they had been undocumented.

But Walt has no greater respect for white American youth. Early in the film he rescues Sue and a white teenager from a confrontation with three African American teenagers but then condemns the white teenager as a fool or worse. Walt also has contempt for his own grandchildren, whom he regards as lazy and disrespectful. Walt's basic attitude--which he literally states several times in the film--is the bitter old man anthem "get off my property."

To me, that is the underlying meaning of the attempt to eliminate birthright citizenship. Yes, it focuses on immigrants--the angry Americans want to keep them off our collective property--but at bottom this is the cri de coeur of the aging white demographic, upset at least as much by their own grandchildren, with their hip-hop music and their support for same-sex marriage, as they are with the children of undocumented immigrants.

Eastwood's own political views are certainly conservative but complex. During his bizarre performance at the 2012 RNC, Eastwood's chief criticisms of Obama/empty chair were that he didn't do enough to bring down unemployment and that he was naive in thinking the war in Afghanistan was winnable given the Soviet experience. These are not the complaints of a conventional right-winger. Moreover, like all great art, Gran Torino cannot be reduced to a linear message or moral. Nonetheless, Gran Torino does seem to be a morality play, even if an unconventional one. The film plainly treats Walt Kowalski as a complicated but ultimately sympathetic hero. Walt believes in real virtues, like loyalty, personal responsibility, respect, courage, and, most of all, retributive justice. We can acknowledge that these are virtues without endorsing Walt's world view, his dangerous nostalgia, his willingness to write off an entire generation, or his blatant racism. We can understand his motivation as not entirely bad without remotely agreeing with his stated views.

So too with the people who would like to eliminate birthright citizenship for U.S.-born children of undocumented immigrants: Their rage may well be misdirected anger that begins in something not entirely ignoble; but they should be opposed nonetheless.

Tuesday, August 25, 2015

Why Am I Defending Economists -- Especially THESE Economists?

by Neil H. Buchanan

Frequent readers of Dorf on Law have seen ample evidence that I am hostile to the economics profession as it is currently constituted.  Although I often find myself in agreement with those on the left side of the current divide among economists, I have made clear my discomfort with the norms (both intellectual and professional) of the field as practiced in almost all economics departments -- in the U.S. and around the world.  I am certainly a "dissenting economist."

On the policy front, I have critiqued economists who advise both Republicans and Democrats, though not in equal measure.  Moreover, I spent quite a bit of time two years ago describing how "orthodox left" economists such as Paul Krugman end up (perhaps inadvertently, but still quite consistently) maintaining the professional status quo by siding with conservative economists against "heterodox left" economists.  (My final post on that subject can be found here, with a link in the first paragraph that leads to previous posts in that series.)

There is no doubt, therefore, that I find much to criticize in the world of credentialed economists.  Even so, just because they are guilty of so much does not mean that they are guilty of everything.  I thus found myself quite annoyed a few weeks ago, when a guest columnist in The Washington Post blithely offered some of the most baseless attacks on economists that I have seen in some time.  The column, "This is what economists don’t understand about the euro crisis – or the U.S. dollar," was written by a prominent political scientist whose record certainly suggests that she possesses an impressive knowledge of European politics.  Even so, the author's argument ultimately boils down to something like this: "There are economists with whom I disagree, and they are wrong because they only think about economists and not politics, which is what I know."

In the opening sentence of the piece, prominent U.S. economists are accused of almost enjoying the Euro/Greek crisis.  They are, rather amazingly, said to be offering critiques with "more than a hint of schadenfreude."  In an attempt to be bipartisan, the author then slams Greg Mankiw (conservative), Paul Krugman (liberal), and Martin Feldstein (conservative) for being variously "smarmy," "relentlessly excoriating," and "condescending."  What is notable, however, is that the author never actually argues that these economists are wrong that the crisis is (in Feldstein's words) "the inevitable consequence of imposing a single currency on a very heterogeneous group of countries."  Instead, "[w]hat this commentary gets wrong, however, is that single currencies are never the product of debates about optimal economic solutions."

This does not even rise to the level of a cheap shot.  If ever there were three economists who cannot be accused of political naivete or ignorance, it is those three.  Yes, Mankiw likes to write dumbed-down pieces for The New York Times in which he acts as if (an extreme conservative version of) Econ 101 is really all one needs to know to run the world.  In fact, I have a folder on my hard drive called "Mankiw Follies," in which I keep a running list of such nonsense.  My dearest hope is that I will never have enough time in my schedule to go back and read all of them, much less to write the article forming in my mind that would explain their aggregated madness.

But the arguments to which Mankiw, Krugman, and Feldstein refer are not international monetary versions of "assume a can opener."  The argument was never about "optimal economic conditions" but about the very predictable results of adopting a currency union when both economic and political conditions were far from optimal.  After a long -- Dare I say smarmy and condescending? -- summary of how the U.S. achieved a common currency, the columnist finally asserts that economists do not understand "a broader reality": "[M]oney has always and everywhere been part of broader projects of political consolidation. This means that it has always been highly contentious."  The hell you say!

Finally, we get to the real argument, such as it is: "European leaders weren’t stupid or self indulgent when they decided to move ahead with the euro, without fiscal union or strong Europe-level democracy. They just cared more about politics and international security than economics."  What the columnist should have understood is that Krugman et al. are saying something like this (with which I obviously agree): "European leaders were stupid and self indulgent when they decided to move ahead with the euro, without fiscal union or strong Europe-level democracy, because they just cared more about politics and international security than economics and because they thought that they could wish the economic realities away."

As an analogy, there really are true-believer economists who insist that any attempt to mess with "the invisible hand" will lead to ruin.  Minimum wages?  Horrors!  These economists are wrong, of course, but that does not mean that there are no economic constraints on what one can achieve via increases in the minimum wage.  And tarring every criticism of the minimum wage by saying that "it's not stupid and self-indulgent to think that there are more important things than economic efficiency" is simply incoherent.  I want to increase the minimum wage, but I know that it would be insane to try to set it at, say, $1000 per hour.

Finally, consider this admission of the level of wishful thinking: "When [European leaders] did think about economics, they hoped that a strong euro, anchored in an independent European Central Bank located in Frankfurt and built on a commitment to protecting the stability of the currency, would help resolve the problems of currency depreciation, spiraling inflation and economic instability that came with the weak currencies of the 'Club Med' countries to the south of Europe."  I have no doubt that they did so hope.  And other people at the time said that those hopes were not based in reality, that the result of moving too fast would be to increase instability and risk undoing all of the many important accomplishments of the project to integrate Europe.

"History does not unfold as a series of neat and sterile decisions made by people rationally trying to create economically optimal policies."  I am not saying that there are no economists who would disagree with this statement.  I am saying, however, that even the prominent economists whom I have harshly criticized over the years for being far too insular in their thinking are not that insular.  Many economists really are politically ignorant (and arrogantly so).  In this case, however, being truly politically savvy should have suggested that it was the European leaders who had "neat and sterile" little stories about how the Eurozone would work.

The Eurozone might stay together, or it might not.  The history of U.S. fiscal integration is interesting in its own right, and it suggests that monetary history is not a smooth series of events.  But so what?  No serious analysis claims otherwise.  People often overuse the claim that their opponents have merely built a straw-man argument.  In this case, that claim is true.  Mankiw surely is smarmy, but the economists who doubted that Europe was ready for the euro were not political naifs.  Apparently, European leaders were so convinced of their own political brilliance that they thought that they could make things happen simply because it would be nice if those things could happen.  That is "leadership" of the worst kind, and Europeans have paid a steep price for such arrogance.  It might get worse.

Monday, August 24, 2015

Judge Posner and Internet Research

By Eric Segall

Judge Richard Posner has come under heavy fire this week for reversing the grant of summary judgment against a pro se prisoner who claimed that doctors at his prison violated his rights by refusing to prescribe the drug Zantac correctly. Judge Posner’s opinion relies to some degree on independent research the Judge performed on various websites including WebMD, the home page of the company that distributes Zantac, the Physician’s Desk Reference, and the Mayo Clinic. A strong dissenting opinion argued that it was improper for Judge Posner to go outside the record to send the case back to the trial court for more factual findings.

The issue of whether it is appropriate for appellate judges to perform internet research outside the purview of the parties' submissions is hotly contested and fraught with both practical and philosophical issues concerning the role of judges and the adversarial process. I am not writing to take a position on that question generally. The point of this piece is simply that in this particular case, Judge Posner was right to go outside the record.

The plaintiff is a prisoner without the ability to hire a lawyer or his own expert witness. He asked for both in the trial court and the judge denied his motion. The state’s expert witness in the case was the very prison doctor who allegedly refused to prescribe the plaintiff’s medicine correctly. His testimony was refuted by virtually all the sources that Judge Posner consulted and the panel (one judge concurred in the result without addressing the research issue) simply remanded the case back for a factual determination and did not conclusively decide the question.

In response the to the dissent’s blistering attacks, Judge Posner said that a refusal to go outside the record in this case would “fetishize adversary procedure.” This is no doubt correct. How would a prisoner with few resources go about proving his case when he is denied access to a lawyer and expert witnesses? Moreover, as many commentators have pointed out, appellate judges, including or maybe especially Supreme Court Justices, go outside the record all the time to find facts that the formal record in the case does not support. Perhaps most importantly, in this case the court simply sent the case back for further fact-finding. As Judge Posner wrote:
We are not deeming the Internet evidence cited in this opinion conclusive or even certifying it as being probably correct, though it may well be correct since it is drawn from reputable medical websites. We use it only to underscore the existence of a genuine dispute of material fact created in the district court proceedings by entirely conventional evidence, namely [plaintiff] Rowe’s reported pain.
The availability of an enormous amount of reliable internet information is a phenomenon less than fifteen years old. How judges should use that vast repository is a difficult question that requires more study and thought. But, in this case, where the issue was one of correct medical procedure, where that question can be looked at through examination of numerous respected web sites, and where the adversary process involves a resource-deprived prisoner against a well-funded state defendant, it would be the height of formalism to prohibit appellate judges from consulting any source outside the formal and closed record of the case. At least in those circumstances, justice and a fair result properly trumped unnecessary legal rigidity.

Friday, August 21, 2015

Sociology and Law

by Michael Dorf

Tomorrow I will be speaking on a plenary panel in Chicago at the American Sociological Association's annual meeting. The organizing theme for the conference is "Sexualities in the Social World" and my particular panel is titled "The Politics of Same-Sex Marriage: Public Opinion and the Courts." The other panelists are Greg Lewis of Georgia State, Brian Powell of Indiana, Katrina Kimport of UCSF, and panel organizer/moderator Paula England of NYU. As the lone lawyer in this group (and one of only a handful at the conference), it's fair to say that I was asked to give the "Courts" angle.

That's not to say I'm uninterested in the politics of or public opinion regarding same-sex marriage (SSM) or other subjects that intersect with law. Indeed, although I will spend most of my allotted 16 minutes (plus Q&A) discussing the legal road to and from Obergefell v. Hodges, I also plan to insert some theory about the relation between law and social movement actors. Here I'll briefly preview my theoretical remarks. Okay, here goes:

Even in the traditional formalist view, law is a product of social forces. People express preferences through electoral politics, and after some filtering, those preferences then get expressed through legislation. When social forces lead to changes in the electorate's preferences, a reasonably responsive democratic system translates those changes into changes in law. However, in the application of formal legal materials such as statutes and constitutional provisions, judges don't (or at least aren't supposed to) take account of changing social norms and practices. We have many metaphors for the role of the judge in a legal formalist world but the most prominent these days is the one that then-Judge Roberts offered as a nominee for the SCOTUS--an umpire just calling balls and strikes. To be sure, baseball fans know that umpires excercise considerable discretion in calling balls and strikes, with some employing wider or narrower strike zones, but everyone understood that Roberts meant to convey a fairly mechanical view of judging. In formalism, law and politics--including politics as the translation of social change--are separate.

Although formalism continues to have its champions, at least as a goal that judges should strive to achieve, since the advent of legal realism about a century ago, most people who are interested in social movements and the law recognize that social and poltical changes can translate into court results even without new legislation or constitutional amendments. For most legal theorists, however, social movements tend to be something of a black box. For example, Jack Balkin--whose book Living Originalism places social and political movements at the center of his attempted reconciliation of originalism and changes in constitutional understandings--provides virtually no fine-grained examples of how social movement actors influence courts. Other legal scholars attentive to the influence of social change on legal understandings do not provide much more--occasionally referring to judicial appointments. In any event, the basic picture is that there's a social movement and the courts take notice.

Some scholars expressly claim that the influence of social movements on law is a one-way street. Gerald Rosenberg's Hollow Hope is the leading example here. Although Rosenberg does not say much about the influence of social movements on law, he argues that courts do not bring about social change (at least absent help from the political branches). When Rosenberg spoke at Cornell earlier this year, he was gracious in acknowledging that SSM may yet prove to be a counter-example to his thesis, which is ultimately empirical. In any event, my goal here is not to argue with his thesis but simply to note that much writing about social change and law seems to take Rosenberg's view or its opposite as a tacit starting point. The question on which this branch of scholarship focuses is how (or whether) changes in law affect society, not how (or whether) changes in society affect law.

Yet, unless one is entirely persuaded by Rosenberg's thesis, one will recognize that the interaction between, on the one hand, courts and other legal actors, and, on the other hand, social movements, is dynamic. Social movements influence law and law influences social movements. Indeed, often law, or more precisely, a strategy for changing the law, is part of the social movement itself. Some of the best work by non-lawyers on legal campaigns shows how lawsuits, referenda, and lobbying can be part of a strategy of mobilization that builds a movement even when it fails in its immediate goal of attaining legal change.

To my mind, inter-disciplinary work by lawyers in combination with social scientists can make an important contribution by providing a more fine-grained picture of how this dynamic operates. My own modest contribution with respect to SSM--my 2014 study with Sid Tarrow--makes two points regarding the dynamic: First, in some circumstances (including the case of SSM), a counter-movement to a movement to change the status quo may actually place the movement's issue on the public policy agenda, thus leading the movement to champion a cause it might otherwise have neglected, at least for a time. And second, any truly fine-grained account of the relation between social movements and legal change must treat social movements themselves as consisting of movement organizations as well as grass-roots actors. Organization leaders who may be reluctant to seek a certain kind of legal change because of their evaluation of their limited likelihood of success will sometimes be pressured to act in a way that they regard as premature or rash.

Thus, socially conservative organizations first used the prospect of SSM as a wedge issue. Nearly all mainstream politicians took the bait and there matters stood for roughly the decade between the backlash against Baehr v. Lewin (the Hawaii case) and the recognition of a state constitutional right to SSM by the Massachusetts Supreme Judicial Court in Goodridge v. Dep't of Pub. Health in 2003. Meanwhile, at first the LBGTQ rights organizations responded timidly, fearful that aggressive advocacy for a right to SSM would spark a backlash. However, pressure from the grass roots--i.e., same-sex couples who wanted to marry--and the decentralized nature of litigation in the U.S., which enabled people to file lawsuits without the backing of the major organizations, eventually led the LGBTQ rights organizations to embrace and fight for SSM. Meanwhile, we haven't studied the extent to whcih opposition to SSM from the right was driven by grass-roots opposition or whether this was an organization-driven effort to mobilize social conservatives. As I shall be in a room full of people who study such matters, I'll ask whether anyone knows the answer. If no one does, I'll suggest that this would be a fruitful line of inquiry.