Handicapping Arizona's Next Lawsuit

By Mike Dorf

My latest Verdict column discusses Monday's SCOTUS ruling in Arizona v. Inter Tribal Council of Arizona.  I make three main points: 1) The breakdown is refreshingly non-political; 2) The Court's rejection of a presumption against preemption could herald more findings of preemption; and 3) The case is not so bad for Arizona's citizenship ID law, because it leaves open the possibility that Arizona could bring a new case in which it appeals the underlying decision by the federal Election Assistance Commission (EAC), which said that Arizona is not entilted to demand documentary evidence of citizenship as part of a mail-in voter registration.  Here I want to take a brief crack at the merits of that question that the Court did not decide: Would/should Arizona succeed in a challenge to the EAC ruling that it was not entitled to have the federal registration form include the demand for citizenship documentation?

Arizona's argument goes like this: States are entitled to set the substantive criteria for voting.  Arizona has made citizenship such a criterion and furthermore, has placed great value on that criterion by requiring particular forms of documentation.  Although the federal govt gets to change the law regarding the "manner" of holding elections, a law that makes it too easy for someone to claim citizenship is not a permissible manner regulation but a backhanded way of undermining the state's substantive criterion.

Is that persuasive?  It's certainly not illogical.  Suppose Arizona had a law that stated that only people who have read The Federalist Papers may vote.  Let's put aside the question of whether such a law would be invalid on free speech or equal protection grounds.  Instead, we want to know whether any particular federal law governing the manner by which qualifications are assessed is invalid on the ground that it extends into the state realm of setting substantive criteria for voting rather than just regulating manner.  So suppose that Arizona asks the EAC to include on its application form ten particular multiple-choice questions about the Federalist Papers and further asks that only those applicants who correctly answer at least seven questions be permitted to register.  The EAC refuses.  Instead, it adds the following to the form:

Arizona law only permits persons who have read the Federalist Papers to register to vote.  By signing this form, you attest that you have read the Federalist Papers.

There is at least a plausible case to be made that this manner of enforcement is so lax that it fatally undermines the state's substantive requirement of reading the Federalist Papers.  Arizona makes the same claim with respect to citizenship back here in reality.

But note that in my hypothetical example, the signer merely "attests" to having read the Federalist Papers.  The actual federal form for Arizona requires the signer to attest under penalty of perjury.  Is that enough to convert what (by hypothesis) is an otherwise impermissible manner regulation into a permissible one?

Maybe not.  Still, I think that the best argument against Arizona's position goes like this:

States do indeed get to decide the substantive criteria for voting.  And while the line between a substantive criterion and a procedure for enforcing that criterion is admittedly fuzzy, it is one that must be drawn because it appears in the Constitution: Congress has power to enforce the "manner" by which elections are held but not to make the substantive criteria.  The choice between attestation under penalty of perjury and documentary evidence pretty clearly falls on the "manner" side of the line.  For Arizona to win, it needs to do more than simply show that attestation is less effective than documentary evidence.  Arizona needs to show that attestation is so ineffective that it does not even count as enforcement of Arizona's citizenship requirement.  But if that's true, then attestation is insufficient in all of the other states that make citizenship a criterion for voting--and so the EAC-approved federal form would be invalid as to all of those other states as well.  Arizona's argument, if successful, would mean that federal forms for EVERY STATE would have to demand documentary evidence of citizenship.  And that's plainly not true.  QED.

I think that's a very effective response to Arizona's argument.  We will now have to wait for the administrative appeal and/or litigation that the Supreme Court invited to see whether it succeeds

Law, Politics, Right Answers, and Basketball

By Mike Dorf

Yesterday's ruling in Alleyne v. United States produced an interesting division on the Court.  The majority opinion by Justice Thomas was joined by the Court's liberal wing, whereas the four other conservatives dissented.  The case holds that factual findings necessary to the imposition of a mandatory minimum sentence must be found by a jury, not a judge, thus overruling Harris v. United States.

It's easy to see the votes of eight of the Justices in conventional liberal/conservative terms, but not the vote of Justice Thomas.  He has been a consistently strong supporter of a broad jury trial right.  Why?  Investigating that question may shed light on a long-running debate in jurisprudence--or at least provide an opportunity for some cheap jokes.

Whatever the reason for Justice Thomas's strong views about the jury, they clearly aren't conventional left/right ideology.  Here, as in other cases--like Justice Scalia's writing a dissent re DNA testing of arrestees that was joined by the three female Justices in Maryland v. King--one is tempted to say that we have evidence that Supreme Court Justices are not simply politicians in robes.  And they aren't.

But just because politics is not driving the way any particular judge or Justice votes, we should not conclude that law is doing the work.  Here we might recall two branches of legal realism.  One branch--which we might consider the predecessor to what became critical legal studies--points to political and perhaps other broad social factors (like race, sex or class).  In this view, individual judges or Justices are avatars for causes.  A second branch of legal realism was more focused on the individual psychology of particular judges or Justices.  The pointillism of this view is summed up in the familiar (if silly) idea that a judge's decision is as much the product of what he or she had for breakfast as it is of the legal arguments in the case.

If one thinks that each branch of legal realism holds part of the truth, then one might think that where ideology does not drive a judge's vote, idiosyncratic factors do--but in neither case is the decision driven by law.  After all, in a case like Alleyne, five Justices think the Constitution requires juries, while four justices think it does not, so it appears that the law is indeterminate.

Yet Ronald Dworkin famously argued that even in hard cases, there are right answers.  In that way, he disagreed with legal positivists--and most centrally with H.L.A. Hart--who thought that in hard cases judges exercised discretion.  Although I find myself functionally closer to Hart, I now think that the terms of their debate tended to confuse matters.  To explain why, it may help to introduce an analogy.

Suppose you and I are having a discussion about who was the greatest NBA center of all time.  There are a number of plausible candidates, depending on how one weights various criteria: Bill Russell played great defense and won the most championships; Wilt Chamberlain had the greatest individual statistics; Kareem Abdul-Jabbar scored the most points over the course of the longest career; Shaquille O'Neal physically dominated opponents in a way that none of the others did.  One could make some kind of a case for any of them.  But there are some NBA centers who clearly do not belong in the conversation, including Hall-of-Famers like Willis Reed and Robert Parish.

When you and I agree that Wilt Chamberlain was a better center than Robert Parish, we base that judgment on basketball criteria.  We use the same criteria when we argue about whether Chamberlain or Russell was the best center ever.  You point to Russell's nine championships and success in head-to-head matchups with Chamberlain; I point to the fact that Russell had better teammates and to Chamberlain's truly incredible stats: In a 14-year career, he averaged 30 points and 23 rebounds per game.

Dworkin was interested in basketball, so I regret that I didn't think to pose this example to him during his lifetime, but we can reconstruct roughly how he might have reasoned about it.  His point about hard cases was that courts use the same legal tools to decide hard cases that they use to decide easy cases; thus, Dworkin concluded that just as there are right answers in easy cases, there are right answers in hard cases.  But thinking about the greatest-center question shows where this reasoning goes wrong.  Just because one is posing a basketball question in both the Chamberlain-or-Parish example and in the Chamberlain-or-Russell example does not mean that one is posing a determinate basketball question in both cases.

In the Chamberlain-or-Parish comparison, all but one of the plausibly relevant criteria favor Chamberlain, and the outlier is easily explained away.  The outlier is championships.  Parish won 4 to Chamberlain's 2, but Parish was at best a third-banana on his Celtics teams, whereas Chamberlain was the franchise player on his teams.

By contrast, in the Chamberlain-or-Russell comparison, reasonable minds can disagree over how much weight to give various criteria. The debate is still a debate about basketball.  If someone said that Chamberlain was better than Russell because Chamberlain (by his own account) had vastly many more sexual partners, we would rightly say that this is not a legitimate basketball criterion.  That would be like a Justice voting for Bush or Gore in Bush v. Gore because the Justice thought that he would be the better President.

Dworkin was right that in both hard cases and easy cases, judges are guided by law.  But it certainly does not follow that judges are as much guided by law in the hard cases as in the easy cases.  What makes the hard cases hard is the very fact that the legal guidance is unclear.  Basketball criteria rule out Willis Reed or Robert Parish for the title of best center of all time, but they do not clearly settle on Chamberlain or Russell (or perhaps Abdul-Jabbar or O'Neal).

Hart fares better on substance but not in presentation.  As Roger Shiner elegantly argues in a recent paper, in The Concept of Law, Hart writes as though the exercise of judicial gap-filling is an exercise of judicial discretion in the sense of a completely unguided decision--what Dworkin called strong discretion.  But what Hart should have said--what would have been more consistent with his own position as best articulated--is that discretion itself is guided by law, albeit loosely.  That is, Hart only needed to say that judges exercise what Dworkin (later) called weak discretion.

And that brings me to some exciting news (well, exciting for law geeks, anyway): Geoffrey Shaw recently discovered a previously lost paper by HLA Hart on the topic of Discretion.  The paper was written for a faculty seminar when Hart was a visiting professor at Harvard during the 1956-57 academic year.  In a 2003 paper, I noted that Bill Eskridge and Phil Frickey speculated that Hart's paper may have argued that "much discretion cannot be controlled by law."  But it turns out that the paper in fact views discretion as much more subject to guidance than that.  Hart had in mind weak discretion after all.  The lost paper, along with an analysis by Shaw, will be published in the Harvard Law Review shortly.  I have seen advance copies of both, but they are not yet in general circulation.

"All Deliberate Speed" for Same-Sex Marriage?

By Mike Dorf

Although it's always tricky to predict outcomes of SCOTUS cases, the betting among the cognoscenti is that the Court will invalidate DOMA in the Windsor case and either uphold Prop 8 in the Perry case or find some way to duck the question.  Among other tea leaves we SCOTUS-watchers have been trying to read are Justice Ginsburg's repeated recent statements criticizing the Court for going "too far too fast" in Roe v. Wade.  As I've explained before, I disagree with her analysis of Roe, but there's no denying that she continues to infer from the experience of the last 40 years that the Court ought to tread lightly and go slowly where divisive social issues are at stake.  It's a fair (if not ironclad) inference that her recent statements regarding Roe are meant to prepare supporters of SSM for disappointment.  After all, if Justice Ginsburg thinks that it's too soon to recognize a right to SSM, it's hard to see how one gets to five without her.

Okay, so suppose you are a SCOTUS Justice who thinks, as Justice Ginsburg may be thinking, that the Constitution is best read to protect a right to SSM, but you worry that if the Court so holds now, there will be a backlash, perhaps even a violent one.  What are your options?

1) Bickelian Passive Virtues 

Following the analysis of the late Alex Bickel, you could exercise the "passive virtues" by deciding not to decide.  The best way to do that would have been simply to deny certiorari.  While that option wasn't available in Windsor--because a federal appeals court struck down a federal statute--it was certainly available in Perry.  It's not too late to deny cert retroactively now, by dismissing as improvidently granted (DIGging), but the betting seems to be running against that course.  Accordingly, the most likely "passive virtues" approach would be for the Court to find that the ballot initiative sponsors lacked standing to defend Prop 8.  I don't like that solution as a matter of standing law but the argument for no standing is plausible enough for the Court to hang its hat thereon.

2) Rule Against the Plaintiffs in Whole or in Part on the Merits

A partial victory for the plaintiffs along the lines of what the 9th Circuit did in Perry would address Justice Ginsburg's concern.  Per the 9th Circuit, the Court could say that there is a right to SSM only in states that once recognized, but then took away, SSM, i.e., California.  Or somewhat more broadly, the Court could follow the suggestion of the federal government and hold that there is a right to SSM in states that recognize same-sex domestic partnerships with all (or nearly all?) of the rights of marriage.  Either approach would avoid Justice Ginsburg's worry of sparking backlash because neither approach would require SSM in the most conservative states.  But during the oral argument, the Justices did not seem at all persuaded by either of these relatively narrow paths to victory for the Prop 8 plaintiffs.  At least at that time, it looked like the only merits positions that the Court was interested in was either a complete victory or a complete defeat for the plaintiffs.  If THOSE are the only choices, then a decision on the merits that doesn't spark backlash (on the supposed Ginsburg/backlash theory), would be a complete defeat for the plaintiffs.

3) All Deliberate Speed

If those are the only options for addressing the backlash fear, I would think that it's more likely that the Court denies standing in Perry than that it out and out denies any right to SSM on the merits.  A ruling along the latter lines is, after all, exactly what the LGBT rights community has been worried about all along, and the reason why the Boies/Olson lawsuit did not originally have the support of the larger LGBT rights litigation community.  They/we worried that taking the case to the Court too soon would result in a rights-denying ruling that would then delay an eventual rights-recognizing ruling.

But maybe there's a third option.  Is there some way to avoid a merits decision that denies the right to SSM and to avoid a (mostly) bogus opinion denying standing?  Maybe the Court could write an opinion along the lines of Brown v. Board II.  Having decided in Brown I that de jure racial segregation is unconstitutional, the Brown II Court nonetheless gave localities some time to address the supposed local variations in conditions needed to provide a remedy--under the supervision of the federal district courts exercising traditional principles of equitable discretion.  In the famous, albeit somewhat oxymoronic, phrasing of the Brown II Court, school districts were to desegregate "with all deliberate speed."

Brown II is generally regarded as an act of weakness bordering on cowardice by the Supreme Court.  Fearful that states and localities would disregard their mandate, the Justices blinked, and thus tacitly signalled to recalcitrant segregationists that they could drag their feet.  They did just that and as a consequence, desegregation cases remained in the courts for dedades.

Accordingly, I realize that it is odd to invoke Brown II as a model.  I am not suggesting that the Court should model a ruling exactly on Brown II.  Rather, my idea is that Brown II indicates another way of ducking backlash:  Vote for the plaintiffs on the merits with respect to liability but give the defendants some time to provide a remedy--say, five years to get to civil unions and another five to get to marriage.

The great virtue of this approach is that it's honest.  The Court would not have to make up bogus arguments against standing or worse, to rule against the Perry plaintiffs on the merits.  The Justices would say the following: We think that the Constitution is best read to protect a right to SSM but we realize that this issue is still very controversial and so we will give people time to adjust.

That is actually what the Brown II Court was really up to--although the Court couched its ruling in terms of the complexities of coming up with new districting plans.  There are no complexities with respect to SSM.  A state or locality can just start issuing same-sex marriage licenses.  So the Court would have to be honest about what it's doing.

The disadvantage, of course, is that while the delay-the-remedy approach is honest, it's not clear that it's exactly legal.  The Court has sometimes stayed its rulings to allow political actors to adjust.  For example, after the Court invalidated the bankruptcy jurisdiction in the Northern Pipeline case, it gave Congress over a year to come up with something else, allowing the bankruptcy courts to operate unconstitutionally in the interim.  But there, and in other similar cases, complex details needed to be worked out in the interim period.  To my knowledge, the Court has never stayed its judgment in this way to allow society to adjust to its substantive ruling.

Anyway, I offer this idea simply as a kind of thought experiment.  With a decision imminent, and with no one having argued for the "Brown II option", the Court will almost certainly not come up with it on its own.  Moreover, as I said, I think the risk of backlash is very much overblown, so I would prefer to see a ruling simply finding a right to SSM, full stop.

The Burden of Proof and Tax Law: Deja Vu Silliness

-- Posted by Neil H. Buchanan

In my Dorf on Law post yesterday, I described the simply embarrassing "fact check" provided by PolitiFact regarding the following statement from a Republican Congressman: "The IRS doesn't have to prove something against you. They can walk in and you've got the burden of proof."  The statement is clearly false, and I had even provided the PolitiFact reporter with the statutory language demonstrating it to be false.  Even so, PolitiFact ended up deeming the statement "mostly true."  As a matter of journalism, this really was an embarrassing episode.

What is, in some ways, even more interesting is the underlying story behind the current rule regarding the IRS's burden of proof in legal proceedings.  It turns out that this silly Republican talking point -- that the tax system is un-American, because only there do citizens bear the burden of proof, rather than being presumed innocent -- was already the source of much Republican chest beating back in the mid-1990's.  The current version of the law is, in fact, directly the result of that contrived claim by the Gingrich-led forces (of Contract on America fame) during their relentless attacks on the IRS.  Now, as then, the underlying assertion -- that in tax cases, citizens are presumed guilty until proven innocent -- turns out to be simply meaningless.

As the current IRS non-scandal-scandal continues to demonstrate, most of the real problems with our tax collection agency date from passage of the "Internal Revenue Service Restructuring and Reform Act of 1998" (RRA98).  That law followed a series of show trials, where Republican-led congressional hearings trumpeted lurid (and false) charges of IRS abuse of innocent citizens.  After RRA98 was passed, and in the 15 years since then, the IRS has been under increasingly intense attack, with an inadequate budget and decreasing morale.  This has led to, among other things, undertrained staff being told to process thousands of applications for nonprofit status by "social welfare organizations."  Nothing could go wrong with that, right?

But back to the burden of proof question.  As part of the Republicans' 1990's attacks on the IRS, someone in the pre-Karl Rove netherworld noticed that the Internal Revenue Code placed the burden of proof on the taxpayer.  That is, the Code said that the taxpayer had the burden of production of evidence, as well as the burden of proof of the legal claim.

Horrors!!  Un-American!  Guilty until proven innocent!  And what about the Magna Carta?!?!?!  (In the PolitiFact article that I ridiculed yesterday, they lead off with a ringing defense of the presumption of innocence, tracing it to "ancient times," citing a Supreme Court case from 1895 that takes the concept back to "the Bible, Sparta, Athens and Rome.")  So the self-styled defenders of American freedom in the mid-1990's decided to flip the burden to where they thought it should be, on "the accuser," which is supposedly the government -- although, as I described yesterday, what is really happening in tax cases is that the taxpayer is the one who is making affirmative claims, not the government.

The problem is that flipping all of the burdens in tax cases would have created havoc.  That is, imposing both the burden of proof and the burden of production on the government would have been insane, because doing the latter would have led to untenable situations like this: a taxpayer says that he has $50,000 in miscellaneous unreimbursed expenses, and the IRS has to produce evidence proving that the taxpayer's assertion is not true.  Short of invasions of privacy that would make this month's revelations about NSA spying look like child's play, such a legal rule would simply mean that every taxpayer could make any assertion that came to mind, knowing that the IRS could not produce evidence to disprove the claim.  Taxable incomes would quickly go to zero -- for everyone.

Of course, for some of the crazier Republicans at the time (and for the entire base of the party now), that was the point.  In the 1990's, however, cooler heads prevailed.  Maybe, they suggested, we could keep the burden of production on the taxpayer (to prevent mass tax evasion), but switch the burden of proof so that it is formally on the government.  The result was section 7491, from which I quoted in my post yesterday.

For a Republican Congressman now to be complaining about the burden of proof, therefore, is a bit like complaining about, say, the supposed evils of the Interstate Commerce Commission.  Whatever one thinks about the ICC, it was abolished in 1995!  Maybe Rep. Forbes is also angry about Prohibition, or the Works Progress Administration.  Republicans still like to repeat Ronald Reagan's apocryphal story about the burglar who fell through a skylight and sued the homeowners, so maybe the burden of proof in tax cases is just something that Republicans feel the need to complain about.

It is not just a matter of deja vu, however.  When RRA98 shifted the burden of proof, it did not "fix" anything.  Even though the burden of proof really had been on the taxpayer prior to 1998, it did not matter, because these are civil cases, not criminal cases, which means that the standard of proof is "by the preponderance of the evidence."  That means that, once the relevant evidence has been heard, the party that bears the burden of proof only has to barely surpass the 50/50 breaking point.

In tax cases, what does that mean?  In some instance, the question is never going to be close to 50/50.  For example, if a taxpayer claims to have given $80,000 to charity, and takes a deduction for that amount, the evidence would show whether he gave $80,000 to an entity, and whether that entity is authorized as a 501(c)(3) organization.  There is no 50/50 call involved at all.  It is all or nothing.

On the other hand, suppose that a taxpayer wants to claim certain expenses as medical deductions.  Section 213 allows deductions for money spent " for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body."  As one might imagine, that is a very blurry area of the law.  A famous Tax Court case involved a guy who wanted to deduct the cost of paying a kid to mow his lawn, because his doctor told him that his hay fever was worsened by exposure to mowed grass.  Was this within the definition of "medical care," for tax purposes?  The court said no, but reaching that conclusion -- though clearly correct -- was still not a 100% call.

Suppose, then, that you are a taxpayer who is in a legal dispute with the IRS.  Does it matter to you whether, under a preponderance standard, you bear the legal burden of proof?  I suppose that one could imagine a truly close case, where the decision was actually 50/50, and you would lose if you bore the burden of proof, but you would win if the government bore that burden.  In the real world, however, it is never that close (in tax cases, or in any other civil case, as my CivPro-teaching colleagues can attest).  In fact, a study in 2008 (ten years after RRA98) showed that shifting the burden of proof under the 50%-plus-a-tiny-amount standard simply makes no difference in tax cases.  The outcome is the same, no matter who formally bears the burden of proof.

This, by the way, is why the PolitiFact article that I discussed yesterday was especially confused.  They described Rep. Forbes's assertion as only "mostly true" because the government bears the burden of proof in criminal cases.  That, however, is not the point.  What matters is that the standard of proof in criminal cases is "beyond a reasonable doubt."  If it were the preponderance standard, then the legal burden would not matter there, either.

I considered, by the way, mentioning all of this history briefly in my reply to the PolitiFact reporter last month.  I decided not to do so, however, because the answer to the question at hand is so blatantly clear under current law.  I also guessed that saying that "it really doesn't matter who bears the burden, under a preponderance standard" would merely confuse the people who ultimately wrote the story.  It is now clear that I was right about that.

In any event, the return of Republican wailing about the burden of proof in tax cases demonstrates that they cannot even take yes for an answer.  As unnecessary as it was, Congress in 1998 shifted the burden of proof onto the government, leaving the burden of production where it should be.  Now, the claim is that the burden of production and the burden of proof are the same thing, kind of, and it is all un-American.  And the press goes along.  Is it any wonder that the political system is broken?

Bad Journalism, Again: Fact Checkers Think That Facts Are a Matter of Opinion

-- Posted by Neil H. Buchanan

Two weeks ago, in a Dorf on Law post, I discussed "a small example, with larger implications" of some truly sloppy work by a highly regarded journalist (the White House correspondent for NBC News), who mindlessly took a quote out of context, regarding the ACA supposedly being a "train wreck" waiting to happen.  It was a shameful moment, but hardly the worst that we have seen from our free press recently.

I am by no means, of course. the only person who has been disappointed, and sometimes stunned, by the disastrously low standards of the current media culture in this country.  It is even worse when one sees such incompetence first hand.  Last summer, for example, I described the completely predictable media circus that surrounded the release of the Supreme Court's decision in the ACA case.  I was asked by a media outlet to be one of the idiots standing on the Court's steps, reading the decision in real time and shouting at the camera as I was reading.  I declined.

Another such example, perhaps even more disturbing, occurred a few weeks ago.  During the first day of my "Basics of U.S. Federal Income Taxation" course, which I was teaching to a group of Austrian students, I explained the legal standards for the burden of proof in tax cases under the Internal Revenue Code.

Not ten minutes after the class ended, I received an email from a reporter for PolitiFact, one of the self-appointed fact-checking groups of reporters in the U.S.  It seemed that a 7th-term Republican Congressman from Georgia, Randy Forbes, had gone on Fox News and said, "The IRS doesn't have to prove something against you. They can walk in and you've got the burden of proof."  The reporter wanted to know if this was true or false.  I replied, in part:

"Rep. Forbes is completely wrong.  Sec. 7491(a)(1) of the Internal Revenue Code clearly places the burden of proof on the government, not the taxpayer, when the taxpayer produces evidence that would allow a court to make a legal determination: 'If, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Secretary [of the Treasury] shall have the burden of proof with respect to such issue.'"

Now, PolitiFact has a spotty record, at best, in its assumed role as the nation's arbiter of truth and lies.  Almost every one of their analyses that has crossed into areas with which I have any familiarity has been wrong.  The group even declared a true statement by President Obama in 2012 not only false, but they awarded it their "lie of the year" award, which strikes me as a jump-the-shark moment for any journalistic operation, much less one that is specifically trying to separate facts from falsehoods.

Be that as it may, the burden-of-proof issue is a crystal-clear example of a legal question for which there is simply a right answer.  The congressman says the taxpayer has the burden of proof.  The law says the government has the burden of proof.  The congressman's statement is false.

To its credit, PolitiFact does recognize that some statements have nuances that make it more difficult to call them simply true or false.  Context matters, words can have multiple meanings, and so on.  PolitiFact's reports, therefore, do not merely label every statement as "true" or "false," but sometimes "mostly false," "pants on fire," and so on.

For reasons that I will explain in a moment, I would have been unsurprised if the report on Forbes's false claim had concluded that he was "Perhaps Understandably Wrong," even though it is absolutely correct to call his statement simply "False."  How did PolitiFact actually describe his statement?  "Mostly true"!  As the kids say: wtf?!  This conclusion is actually even worse, because the only reason they added "mostly" to their verdict is that they discovered that criminal tax cases have the usual "guilty beyond a reasonable doubt" burden on the prosecution, which is true but irrelevant to the inquiry.

In other words, for non-criminal tax cases, PolitiFact declared that Forbes's false statement was true.  How could they reach that completely incorrect conclusion?  This is where I would have been willing to say that the congressman's statement was "perhaps understandably wrong."  In the statutory language that I quoted, the (extremely clear) declaration that the government bears the burden of proof is preceded by the requirement that "a taxpayer introduce[] credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed."

What does that mean?  In my email to the reporter, I explained: "This means that the 'burden of production' remains on the taxpayer to produce evidence, but that's exactly as any sensible person should want it: If the IRS had the burden to produce evidence, it would have to be given access to individuals' private files, in order to find that evidence.  Is that what we really would want the IRS to be doing?  The taxpayer usually possesses evidence of donations, expenditures, and so on.  If they want to claim that, say, they donated $25,000 to a charity, they can surely produce a canceled check to support that assertion."

I was happy to see that the PolitiFact piece quoted my rhetorical question from that email ("Is that what ... ?"), but they still completely missed the point.  They seem to have been thrown off by a statement from an IRS webpage (from the small business and self-employed taxpayers section of its website), which incorrectly uses the term "burden of proof" to describe both the burden to produce evidence and the burden to prove the legal issue in court.  As I explained in my email to the reporter:

"[W]hen the IRS says (from your email), 'The responsibility to prove entries, deductions, and statements made on your tax returns is known as the burden of proof. You must be able to prove (substantiate) certain elements of expenses to deduct them,' they're apparently trying not to confuse non-lawyer citizens with the difference between 'burden of proof' and 'burden of production.'  Having the 'responsibility to prove entries, deductions, and statements' is simply to say that you, the taxpayer, have to show up in court and show your evidence that backs up what you say."

Think about the reaction if the IRS included on its public pages a legal distinction between production of evidence and proving points of law.  Congressman Forbes would surely say something like, "How is a regular person supposed to understand that?!  This is why people hate the IRS!"

Even so, it is true that one of the IRS's web pages does conflate the two concepts, which is why I think one could call Forbes's statement "understandably wrong."  (Why a statement on the "Small Business and Self-Employed" section of the website should be viewed as definitive for every taxpayer is another matter, but I will let that go for now.)

Nevertheless, PolitiFact then completely garbles the analysis by saying: "In other words, the IRS is presumed to be correct unless the taxpayer 'produces "credible evidence"' to counter the agency’s finding. ... So, for the most common interactions with the IRS, the burden of proof is indeed on the taxpayer."

No, that is not what it says "in other words."  The production of evidence is a matter of supporting an affirmative statement on the part of the taxpayer, not a matter of "counter[ing] the agency's finding."  The agency has not "found" anything that the taxpayer must disprove.  The taxpayer is making an affirmative claim about a fact of the world that (they hope) will allow them to reduce their tax bill.

For example, suppose that there are two taxpayers whose employers have correctly reported that their respective salaries are both $80,000.  One taxpayer then says, "But I don't have to pay taxes on that income, because I gave it all away to a charity.  So the other guy should pay taxes, and I shouldn't."  At that point, the taxpayer would be legally obligated to produce credible evidence demonstrating that he has, indeed, given $80,000 to a charity.  Once he has done so, there would be a legal question about whether the charity is a legitimate charity, donations to which are tax deductible, which could be adjudicated.  (There will also be legal inquiries regarding annual limits on the total charitable deductions that Congress allows under the tax laws, and other issues.)

The point is that the taxpayer's requirement to produce evidence is not a "presumption of guilt," or "forcing the taxpayer to counter the agency's finding," or anything like that.  It is a requirement that, when a taxpayer claims that his tax computation should be based on certain facts, he must be able to produce evidence to support those factual claims.  The IRS is not presumed to be correct, because it is not making any claim other than, "Unless the facts are otherwise, this is your tax liability."  And the taxpayer has the ability to bring those additional facts to light.

PolitiFact dismisses as a mere technicality the production/proof distinction, and then claims that, for "the most common interactions with the IRS," Forbes's statement is correct.  But how do they get around the clear language from Section 7491, that "the Secretary [of the Treasury] shall have the burden of proof," even in (as PolitiFact describes it) "the most common interactions with the IRS"?  The article quotes a tax litigator as saying: "Nothing the congressman said on the burden of proof would strike me as outside of the norm or the general rule if I or any other tax litigator heard it in everyday conversation."

So, even though the law is absolutely clear that the burden of proof is on the government, PolitiFact is satisfied that this is not true, because a lawyer told them that tax litigators often make the same mistake?

This, it seems to me, perfectly captures -- and then takes to a surreal level -- the modern media's obsession with a perverse notion of "balance": If you can find two people who disagree about something, simply report it as he-said-he-said.  Anything else is "biased reporting."  Critics of the media have joked that this will surely lead one day to absurdities like this: "Scientists say that the sun rises in the East.  Others say no.  The debate has not been resolved."  We now have something even worse: "The law clearly says X.  One lawyer tells us that some people say not-X.  So he's right."

Here, as I said, one could acknowledge that it is easy to become confused about the meaning of the burden of proof, and conclude that this is not a "pants on fire" lie from a Congressman.  It is surely interesting that even some tax lawyers are sloppy in their language.  But, we actually have a fact staring us in the face -- and PolitiFact is a fact-checking organization!  (Note, among other things, the organization's name.)

And just as clearly, we know for sure that taxpayers do not have to disprove any assertions by the government, but must only support their own assertions of fact.  That is not just a technical statement of the law, but a description of a system that respects taxpayer/citizens' presumption of innocence.

This, like the "train wreck" comment about the ACA, is not an error by the media that will alone change history.  Still, it is especially depressing to see that a fact-checking organization -- even when directly supplied with the most relevant fact -- does not even bother to report the facts as they stand, and instead invents its own notion of what happens "most commonly" on the ground.  A statement cannot be "true" -- mostly or otherwise -- if it is false.  And Forbes's statement is false.  Perhaps understandably false, but false.  And our media watchdogs (seemingly deliberately) missed another one.

Justice Scalia and Nonviolent Communication

by Sherry F. Colb

In my Verdict column for this week, I discuss the recent case of Maryland v. King, in which the Supreme Court upheld a Maryland law authorizing the collection of DNA samples from people arrested and booked for violent (and other serious) crimes.  In a two-part earlier column, here and here, I discussed the merits of the case in more detail, but my column more closely examines Justice Scalia's dissenting opinion and the central role that governmental intentions play in that dissent.

In this post, I want to focus more generally on Justice Scalia's approach to disagreements with his colleagues.  First, I should note that in person, Justice Scalia is a very friendly, charismatic, and charming individual.  I had the privilege of sharing a lunch with the Justice (and my co-clerks) about twenty years ago, and the three hours flew by (Justice Blackmun told us afterward that he feared we had defected).  I certainly do not know the Justice well, but he does appear to be a respectful and collegial fellow in individual and small-group interactions.

In public, however -- and, in particular, in his published opinions in which he disagress with others -- civiility is not a signature strength for Justice Scalia.  Though one could cite many examples from the opinions that he has crafted in nearly 30 years on the High Court, I will limit this discussion to the Justice's dissenting opinion in Maryland v. King.

Here follow some of Justice Scalia's assertions in his dissent:

1.) "The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous.  And the Court's comparison of Maryland's DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today's opinion has chosen to tell them about how those DNA searches actually work."

Translation:  The majority is lying about what it is doing, and its reasoning would only persuade those who make the mistake of getting their information about the case from the majority."

2.)  "The truth, known to Maryland and increasingly to the reader:  this search had nothing to do with establishing King's identity.  It gets worse."

Translation:  The reader is undoubtedly outraged to learn the truth that the majority tried to obscure, but I haven't even gotten started.

3.) "That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores)."

No translation needed.

It is unquestionably entertaining to read Justice Scalia's opinions, largely because of his willlingness to attack his colleagues with sarcasm, accusations of lying, and bad faith, as he does here.  Legal opinions can sometimes be dry and difficult to navigate, but Justice Scalia makes the law come alive with fists swinging.  Conflict is fun to watch; harmony is not.

Nonetheless, it is likely that Justice Scalia's colleagues on the other side of a case find his sarcasm and accusations considerably less fun than readers do.  It can be difficult to think of Justices on the Supreme Court as real people like the rest of us, with feelings.  But Justice Scalia -- as one of those Justices with feelings (feelings he readily -- and sometimes quite disturbingly -- vents in the U.S. Reports), must realize that his colleagues too have limbic systems in their brains, just as he has.

Working with someone who regularly resorts to sarcasm and accusations takes its toll.  I took a course last year in non-violent communication, and one of the things we learned is that it is far more effective (not to mention kind) to voice our negative reactions in terms that respect the feelings and needs of those around us.  The goal is not to suppress our feelings but to express them in ways that are not threatening and degrading to others.

Consider a trivial hypothetical example.  You are  riding in the "quiet car" on a train and find your neighbor's cell phone conversation infuriating.  You might be tempted to shout "SHUT THE F--- UP?!  ARE YOU TOO STUPID TO UNDERSTAND WHAT THE WORD "QUIET" IN "QUIET CAR" MEANS?!"  You might choose instead, however, to say, "Excuse me, sir/m'am.  I wanted to let you know that I chose the quiet car in order to read and work during the ride without distraction.  Hearing your cell phone conversation makes that very difficult for me.  Would you please end your conversation or continue it in another train car?  I'd be very grateful if you did that."

In some ways, the first approach might be more satisfying if you are feeling enraged and enjoy venting.  At the same time, however, you do not really know very much about the life of the person on the cell phone (apart from what you have gathered from the converastion you have heard thus far).  Perhaps he or she just learned of the death of a parent or is on his or her way to undergo chemotherapy.  If you knew these facts, your anger would probably subside, and your outburst would cause you shame.  Screaming and swearing at the other person essentially treats him or her as simply a receptacle for your negative emotions, one that must be pressured into "behaving" properly; speaking respectfully about what it is you want and need while simultaneously remaining cognizant of what he or she might want or need, leaves the door open for reciprocal consideration.

I do not propose, of course, that Justice Scalia write a dissent in which he identifies his feelings and needs alongisde those of the majority.  Non-violent communication, however, would caution against hurling nasty accusations against his colleagues -- colleagues whose majority opinions he is often more than happy to join.  The fact that he is dissenting is, alone, enough evidence that he is unhappy with the outcome of the case without the copious zingers.  On occasion, a result might represent such a miscarriage of justice that it calls for a dissent that essentially calls out one's opposition for their outrageous conduct.  But even then, such rhetoric is likely to be unproductive and hurtful.  And in the run of cases, it seems both inappropriate and immature.

Years ago, I told my students to read Justice Scalia's opinions carefully -- particularly the ubiquitous jabs and
sarcasm, as examples of how not to act if one wants to build coalitions and cultivate mutual respect among one's colleagues.  At the time, I credited Justice Scalia's routine use of violent (in the sense of nasty and disrespectful) rhetoric with giving Justices Kennedy and O'Connor pause about the areas in which they shared Justice Scalia's views.  Whether this bit of psychoanalysis is accurate or not, it seems clear that creating an atmosphere of collegiality and safety and the room to disagree without fearing an attack is an endeavor that is both good for its own sake and likely to foster fewer unnecessary disagreements.  Growing up -- for those in high and low places alike -- requires noticing that one shares the world with others whose feelings are entitled to respect.

What's Behind the Tentative Cross-Ideological Consensus on Privacy?

By Mike Dorf

A few years back, I gave a lecture (described here) in which I remarked upon and tried to explain the surprising fact that both liberal and conservative Justices on the Supreme Court had come to embrace freedom of speech.  It wasn't always that way.  For much of American history, almost no one among legal elites embraced freedom of speech.  In the early 20th century, liberals began to embrace free speech, although most notably in the dissents of Justices Brandeis and Holmes.  Liberals remained mostly silent through the Cold War/McCarthy era, not really embracing free speech until the Civil Rights Era.  And conservatives only came along in the late 80s/early 90s.  There are two interesting phenomena there: the fact that it took liberals so long to come around and the fact that conservatives came around at all.

To explain the latter phenomenon, I pointed to four factors that, I hypothesized, galvanized the right. They are:
1) Commercial speech;
2) Opposition to campaign finance regulation;
3) Perceptions of Political Correctness stifling the expression of conservative views on college campuses and elsewhere; and
4) The recognition that religious conservatives could advance their cause more effectively under the rubric of free speech than free exercise of religion.

I don't want to revisit my 2010 comments on free speech here.  Instead, I'd like to note a similar phenomenon with respect to privacy, though less on the Court than in the more general realm of politics.

Although it is now conventional wisdom to say that Americans have accepted that the national security state will snoop on them if that's the price of keeping us safe from terrorism, I think that's an exaggeration.  I have been struck in the news coverage of the latest revelations of government tracking and data mining by the fact that not just liberals, but also quite a few conservatives, have articulated a privacy line.  I would identify three factors that appear to be contributing to the conservative embrace of privacy.  I encourage readers to add others in the comments and/or to elaborate on or disagree with my own.

1)  Partisanship

Some of the willingness of conservatives to criticize the Obama Administration for secret government programs that spy on foreigners and Americans is undoubtedly rooted in simple partisanship.  There is a substantial constituency among Republican elected officials and the grassroots for whom anything associated with President Obama is suspect simply for that reason. Conversely, some of the criticism from liberals is muted because these programs are being executed by a Democrat rather than a Republican.  Taken together, these two phenomena may make liberals and conservatives look somewhat closer to one another on privacy issues than they would be, absent partisan considerations.

2) Conservative Libertarianism

For a long time, the Republican coalition included social conservatives and economic libertarians. Indeed, many of the economic libertarians were and are also social conservatives.  However, it appears to me that more recently a substantial fraction of the libertarian wing of the conservative coalition has become more generally libertarian.  To be sure, one shouldn't exaggerate the phenomenon.  Ron Paul, who was the libertarian standard-bearer among elected politicians during the last two Presidential elections, was never more than a fringe candidate.  Nevertheless, one shouldn't overly downplay this phenomenon either.  Paul was disproportionately popular among young conservative (and not just conservative) voters, which certainly jibes with my own observations.  The Federalist Society--the legal elite version of the Republican Party--was also a coalition of libertarians and conservatives (including social conservatives) for much of its history. At least judging by my students who are active in Fed Soc, the libertarian wing is now dominant to the point of having nearly eliminated the traditional conservative wing.

The general rise of libertarianism has both positive and negative aspects.  On the positive side, libertarian conservatives who have come to expand their libertarianism beyond economic matters should be praised for their intellectual consistency.  Moreover, the growing libertarianism on the right (assuming I'm correct in identifying it) provides opportunities for left/right coalitions on a host of subjects.

On the negative side, however, liberals and progressives have reason to be wary of hard-core libertarianism--or what Andy Koppelman calls "tough luck" libertarianism in his terrific book The Tough Luck Constitution and the Assault on Health Care Reform.  While strong libertarians want the government to stay out of their phone records and emails, they also regard collective health insurance as a form of tyranny.  If (as 19th-century German social democrats used to say), anti-Semitism is the socialism of fools, then Ayn-Randian libertarianism is the conservatism of 14-year-old boys.  And increasingly, those boys have taken their libertarianism into adulthood.

3) Privacy and Shame

Finally, I would suggest that even more traditional conservatives have some reason to bridle at government snooping.  To paint with a very broad brush, liberals and libertarians think that (absent targeted suspicion) the government ought to stay out of their private affairs because it's none of the government's business, and because they fear that the government might commit abuses based on the information it discovers.  Traditional conservatives may not be nearly as distrustful of the government, but (again, painting with a very broad brush) they have a stronger sense of shame--one that is often connected to religious views.  Thus, a liberal or libertarian will think that the government ought not to observe him or her in a sexual act because, again, it's private, but not because it's shameful.  By contrast, a traditional conservative with a strongly religious sense of morality may reach the same conclusion because he or she thinks that the underlying conduct is inherently embarrassing or shameful.

To be clear, these are obviously and admittedly over-generalizations.  But that's what blogging is for, isn't it?