A recent spate of articles (including this one) highlights the role that Virginia Thomas, wife of SCOTUS Justice Clarence Thomas, is playing as a leader of a "tea party." It's tempting to use this story as an occasion to take some shots at Justice Thomas and the right more broadly. E.g., I COULD ridicule the notion that President Obama is pursuing what Ms. Thomas calls a "hard-left agenda." If I were in such a mood, I might speculate as follows: Perhaps Ms. Thomas thinks Obama has such an agenda because he is following the lead of the old Soviet Union by escalating military operations in Afghanistan. But I'll resist the temptation.
Instead, I want to ask the core question raised here: What are the limits on political activities by the spouses of judges? As Ms. Thomas correctly notes, PA Governor Ed Rendell is obviously allowed to engage in political activity--all the time--notwithstanding his marriage to a federal appellate judge. Nor are such connections unique in the world of working couples. Ninth Circuit Judge Stephen Reinhardt (for whom I was a law clerk 20 years ago) is married to longtime Executive Director of the ACLU of Southern California, Ramona Ripston. These marriages lead to recusals in some cases, but in my view, it's almost silly to worry that they will otherwise lead to conflicts or the appearance of impropriety. As I said when I (somewhat weakly) defended Justice Scalia's non-recusal in the wake of his hunting expedition with then-VP Cheney, we have much less reason to worry that friends (or by extension, spouses) will whisper in the ears of judges and Justices than we have to worry that the judges and Justices have pre-formed ideological dispositions.
Does that mean that spouses of judges and Justices should feel free to do whatever they like in politics? Not necessarily. One concern arguably raised by the activities of Virginia Thomas but not those of Ed Rendell or Ramona Ripston is that Ms. Thomas may be exploiting her connection to a prominent jurist. Rendell and Ripston have power bases that are completely independent of their spouses. It's hard to say whether that is true of Ms. Thomas; certainly the attention that has focused on her tea party activity derives from her connection to her husband. Still, I would give her the benefit of the doubt. It's not at all clear that she invited the publicity of her tea party involvement. Nor am I aware that she has substantially benefited in her career from her husband's position: She has worked in positions of responsibility in conservative causes on the Hill over the last two decades, presumably because she is good at what she does. In any event, complete independence is not really the right benchmark. Hillary Clinton gained national prominence as a result of her husband's political accomplishments but as an elected and now an appointed official she has developed her own power base. If Dick Armey first heard of Virginia Thomas because she was married to Clarence Thomas, that doesn't taint her continued involvement in right-wing political causes.
In the end, what's troubling about Ms. Thomas's involvement in the tea party movement is what it may say about the extremity of her husband's views. To be sure, many spouses disagree about political issues. Mary Matalin and James Carville are only the most colorful. Still, there doesn't appear to be a lot of daylight between the world views of Virginia and Clarence Thomas. VT says she is a fan of Rush Limbaugh and "intrigued" by Glenn Beck. (Well, who isn't?) Meanwhile, in 1994 Justice Thomas presided at Limbaugh's third wedding ceremony, which was performed in the Thomas home. Is there anything unethical in any of that? No. Disturbing, sure, but not unethical.
Wednesday, March 17, 2010
Tuesday, March 16, 2010
Miranda and the Puzzle of Voluntariness
By Sherry Colb
In my column for this week, I discuss the Supreme Court's recent decision in Florida v. Powell, which upheld the Tampa, Florida version of the Miranda warnings despite their lack of clarity on the suspect's right to have a lawyer with him while police are interrogating him. My column makes the claim that this lack of clarity is not unique to the Tampa warnings but in fact more broadly characterizes the warnings with which we have all become familiar and that at least federal courts of appeals have upheld. I suggest in the column that this vagueness is no accident but instead represents a compromise between two objectives: informing suspects of their rights in a way that mollifies our conscience while simultaneously permitting the police to obtain confessions from suspects who would be better off staying silent.
I want to suggest here that this tension is related to the slippery concept of "voluntariness" as we use it in the Fifth Amendment context. When we say that a statement must be "voluntary," we mean something more than that it cannot be the product of a reflex (which is how we characterize truly "involuntary" acts). No one contests, for example, that a confession fails the Fifth Amendment "voluntariness" test if police obtain it by threatening to kill the suspect if he doesn't talk. Despite the fact that he is making a choice to speak (and is therefore acting "voluntarily" in the literal sense), we consider the conditions under which he chooses to speak normatively unacceptable.
Beyond threats or violence, however, what ought to qualify as too much pressure? One possible answer that many find appealing is the notion that we may not apply the amount or type of pressure that would motivate an innocent person to give a false confession. One of the critiques of using torture in interrogations, after all, is that it generates inaccurate intelligence. To the extent that our concern is accuracy, we could judge the circumstances of confession by asking "Might an innocent person have said what the suspect said if faced with the pressure that faced the suspect?"
The Miranda warnings, of course, go further than the above test would go. They are, by design, a protection against suspects feeling like they have to tell the truth. That is, the warnings tell a suspect -- if he listens closely and follows what he is hearing -- that it is against his interest to speak (because statements he make will become evidence against him at trial) and that if he does not trust himself to stay silent, he can have an attorney with him to fortify his will. Plainly, the right against compelled self-incrimination, as envisioned in Miranda, is a right against accurate self-accusatory statements that respond to questions posed by police in the absence of any hint of violence or the threat of retaliation.
At the time that the Court decided Miranda, a majority of the Justices found offensive the sorts of tactics that work by relaxing the suspect into feeling that he is among friends. One such tactic is suggesting to the suspect that what he did is actually excusable. If a suspect were innocent of killing anyone, it is hard to imagine that such tactics would induce him to say "Actually, I did kill the victim, but I was very angry at him for insulting my mother." Justice Harlan's dissent in Miranda described it this way: "the thrust of the new rules is ... to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward 'voluntariness' in a utopian sense, or to view it from a different angle, voluntariness with a vengeance."
If we took such a voluntariness notion to its logical conclusion, we would simply prohibit police from asking questions of suspects in custody, outside the presence of counsel. If "voluntary" were interpreted to mean "spontaneous," for example, it is clear that custodial interrogation (no matter how helpful the warnings) causes the suspect to confess when he otherwise would not have done so.
Seen in this way, Miranda, however interpreted, is a necessary compromise between diametrically opposed positions along a continuum -- the view that voluntariness refers to any behavior that is chosen (even if the alternative is death), and the view that voluntariness requires a spontaneous choice by the suspect, uninfluenced by police questioning. Neither of these options is a neutral construction of either "voluntary" or of "not compelled," and we are therefore left -- perhaps ironically -- with the inescapable burden of choosing how much coercion is too much coercion to satisfy the Constitution.
In my column for this week, I discuss the Supreme Court's recent decision in Florida v. Powell, which upheld the Tampa, Florida version of the Miranda warnings despite their lack of clarity on the suspect's right to have a lawyer with him while police are interrogating him. My column makes the claim that this lack of clarity is not unique to the Tampa warnings but in fact more broadly characterizes the warnings with which we have all become familiar and that at least federal courts of appeals have upheld. I suggest in the column that this vagueness is no accident but instead represents a compromise between two objectives: informing suspects of their rights in a way that mollifies our conscience while simultaneously permitting the police to obtain confessions from suspects who would be better off staying silent.
I want to suggest here that this tension is related to the slippery concept of "voluntariness" as we use it in the Fifth Amendment context. When we say that a statement must be "voluntary," we mean something more than that it cannot be the product of a reflex (which is how we characterize truly "involuntary" acts). No one contests, for example, that a confession fails the Fifth Amendment "voluntariness" test if police obtain it by threatening to kill the suspect if he doesn't talk. Despite the fact that he is making a choice to speak (and is therefore acting "voluntarily" in the literal sense), we consider the conditions under which he chooses to speak normatively unacceptable.
Beyond threats or violence, however, what ought to qualify as too much pressure? One possible answer that many find appealing is the notion that we may not apply the amount or type of pressure that would motivate an innocent person to give a false confession. One of the critiques of using torture in interrogations, after all, is that it generates inaccurate intelligence. To the extent that our concern is accuracy, we could judge the circumstances of confession by asking "Might an innocent person have said what the suspect said if faced with the pressure that faced the suspect?"
The Miranda warnings, of course, go further than the above test would go. They are, by design, a protection against suspects feeling like they have to tell the truth. That is, the warnings tell a suspect -- if he listens closely and follows what he is hearing -- that it is against his interest to speak (because statements he make will become evidence against him at trial) and that if he does not trust himself to stay silent, he can have an attorney with him to fortify his will. Plainly, the right against compelled self-incrimination, as envisioned in Miranda, is a right against accurate self-accusatory statements that respond to questions posed by police in the absence of any hint of violence or the threat of retaliation.
At the time that the Court decided Miranda, a majority of the Justices found offensive the sorts of tactics that work by relaxing the suspect into feeling that he is among friends. One such tactic is suggesting to the suspect that what he did is actually excusable. If a suspect were innocent of killing anyone, it is hard to imagine that such tactics would induce him to say "Actually, I did kill the victim, but I was very angry at him for insulting my mother." Justice Harlan's dissent in Miranda described it this way: "the thrust of the new rules is ... to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward 'voluntariness' in a utopian sense, or to view it from a different angle, voluntariness with a vengeance."
If we took such a voluntariness notion to its logical conclusion, we would simply prohibit police from asking questions of suspects in custody, outside the presence of counsel. If "voluntary" were interpreted to mean "spontaneous," for example, it is clear that custodial interrogation (no matter how helpful the warnings) causes the suspect to confess when he otherwise would not have done so.
Seen in this way, Miranda, however interpreted, is a necessary compromise between diametrically opposed positions along a continuum -- the view that voluntariness refers to any behavior that is chosen (even if the alternative is death), and the view that voluntariness requires a spontaneous choice by the suspect, uninfluenced by police questioning. Neither of these options is a neutral construction of either "voluntary" or of "not compelled," and we are therefore left -- perhaps ironically -- with the inescapable burden of choosing how much coercion is too much coercion to satisfy the Constitution.
Monday, March 15, 2010
Domesticating Assassination
By Mike Dorf
A fascinating new article (to be published in the Minnesota Law Review) by my colleague (and my co-convener of the Cornell Constitutional Law & Theory Colloquium) Josh Chafetz propounds this provocative thesis: If you want to know whether a President is legitimately impeachable, ask whether, under classical theory, he would have been legitimately subject to assassination.
Much of the paper is a work of history, showing how a few paradigm cases--especially the assassinations of Julius Caesar and Charles I---would have necessarily informed the framers' thinking about what sorts of substantive behavior in a ruler constitute tyranny worthy of removal. Chafetz also explains, commonsensically enough, that the framers saw assassination as a procedurally defective mechanism. Another elegant part of the paper shows how John Wilkes Booth--son of Junius Brutus Booth, who was named for a classical assassin---was well aware of the classical standards for tyrannicide. Chafetz concludes (also sensibly) that Booth substantively misapplied those standards and, of course, acted illegitimately in assuming for himself the power to decide President Lincoln's fate.
Turning to examples of impeachments, Chafetz thinks that the Reconstruction Senate made the right call in not removing President Johnson, that Nixon was removable, and that Clinton was not. I agree with each of these assessments. As Chafetz puts it with respect to Clinton, under the classical standard, tyrants lost their lives for making too much of their office, but Clinton's tawdry behavior made it too little. In the words of his own critics, Clinton "diminished" the Presidency.
The illumination that Chafetz shines on the question of impeachability, and the inherently interesting nature of the thesis, make this paper well worth reading. Nonetheless, I think a puzzle remains about how to integrate the pre-Constitution traditions with the actual text adopted, which makes the President (and VP and other civil officers) impeachable for "treason, bribery, or other high crimes and misdemeanors." One who accepts bribes--imagine a President Blagojevich--hardly makes the office "too big." Yet he is plainly subject to impeachment and removal. And if one of the two express criteria for impeachment and removal is a crime of diminution of the office, it's not clear how much of the older tradition governing assassination was incorporated by the impeachment clause.
In the end, Chafetz would not much disagree. He is not offering a definitive guide for modern interpretation of the impeachment clause but instead some background that can aid in making sense of the provision. During the Clinton impeachment, the constitutional arguments of both sides about what comprises "other high crimes and misdemeanors" were largely self-serving. Should Congress some day have a serious debate about the subject, this historical context would be enlightening.
A fascinating new article (to be published in the Minnesota Law Review) by my colleague (and my co-convener of the Cornell Constitutional Law & Theory Colloquium) Josh Chafetz propounds this provocative thesis: If you want to know whether a President is legitimately impeachable, ask whether, under classical theory, he would have been legitimately subject to assassination.
Much of the paper is a work of history, showing how a few paradigm cases--especially the assassinations of Julius Caesar and Charles I---would have necessarily informed the framers' thinking about what sorts of substantive behavior in a ruler constitute tyranny worthy of removal. Chafetz also explains, commonsensically enough, that the framers saw assassination as a procedurally defective mechanism. Another elegant part of the paper shows how John Wilkes Booth--son of Junius Brutus Booth, who was named for a classical assassin---was well aware of the classical standards for tyrannicide. Chafetz concludes (also sensibly) that Booth substantively misapplied those standards and, of course, acted illegitimately in assuming for himself the power to decide President Lincoln's fate.
Turning to examples of impeachments, Chafetz thinks that the Reconstruction Senate made the right call in not removing President Johnson, that Nixon was removable, and that Clinton was not. I agree with each of these assessments. As Chafetz puts it with respect to Clinton, under the classical standard, tyrants lost their lives for making too much of their office, but Clinton's tawdry behavior made it too little. In the words of his own critics, Clinton "diminished" the Presidency.
The illumination that Chafetz shines on the question of impeachability, and the inherently interesting nature of the thesis, make this paper well worth reading. Nonetheless, I think a puzzle remains about how to integrate the pre-Constitution traditions with the actual text adopted, which makes the President (and VP and other civil officers) impeachable for "treason, bribery, or other high crimes and misdemeanors." One who accepts bribes--imagine a President Blagojevich--hardly makes the office "too big." Yet he is plainly subject to impeachment and removal. And if one of the two express criteria for impeachment and removal is a crime of diminution of the office, it's not clear how much of the older tradition governing assassination was incorporated by the impeachment clause.
In the end, Chafetz would not much disagree. He is not offering a definitive guide for modern interpretation of the impeachment clause but instead some background that can aid in making sense of the provision. During the Clinton impeachment, the constitutional arguments of both sides about what comprises "other high crimes and misdemeanors" were largely self-serving. Should Congress some day have a serious debate about the subject, this historical context would be enlightening.
Friday, March 12, 2010
Ooops, I forgot my briefs.
By Craig Albert
A short note regarding a flap from yesterday. According to the NYT, Senator Kyl was shocked, shocked to learn that AG Holder had not listed in his pre-confirmation questionnaire his "signing" of a brief in the Padilla v Rumsfeld case. Putting aside the fact that Holder (along with Reno and 2 other former DOJ officials who were amici) didn't "sign" those amicus briefs (they were signed by the friendly lawyers at Arnold & Porter), it's hard to imagine that Kyl didn't know about Holder's status in the case, if he had been paying any attention at all. After all, Kyl was an amicus in Hamdan, so he was probably keeping abreast of the issues. The irony is that, as John Dean pointed out in a Findlaw column of a few years ago, Senator Kyl and Senator Graham fabricated a piece of legislative history specifically for the purpose of supporting their amicus position in Hamdan. It's hard to forget the novels that you write.
A short note regarding a flap from yesterday. According to the NYT, Senator Kyl was shocked, shocked to learn that AG Holder had not listed in his pre-confirmation questionnaire his "signing" of a brief in the Padilla v Rumsfeld case. Putting aside the fact that Holder (along with Reno and 2 other former DOJ officials who were amici) didn't "sign" those amicus briefs (they were signed by the friendly lawyers at Arnold & Porter), it's hard to imagine that Kyl didn't know about Holder's status in the case, if he had been paying any attention at all. After all, Kyl was an amicus in Hamdan, so he was probably keeping abreast of the issues. The irony is that, as John Dean pointed out in a Findlaw column of a few years ago, Senator Kyl and Senator Graham fabricated a piece of legislative history specifically for the purpose of supporting their amicus position in Hamdan. It's hard to forget the novels that you write.
Congress Loves the IRS, and We Should, Too
-- Posted by Neil H. Buchanan
In my FindLaw column this week, "Is the IRS the Most Trustworthy Agency in the Country? Even Republicans Seem to Think So," I move from defense to offense in discussing the role in society of the IRS and its employees. Two weeks ago, in my FindLaw column and Dorf on Law post, I responded to the February 18 suicide attack on the IRS building in Austin by saying, in essence: "Why aren't we more shocked? The IRS is wrongly vilified, and its employees are unfairly demonized for political gain. They are good people who deserve better." This week, my counter-intuitive point is that we have strong evidence not only that the IRS is staffed with many of our best and most professional citizens, but Congress -- no matter which party or ideology is in charge -- relies on the high quality of our tax enforcers to carry out its policies.
I will return to that argument momentarily. First, however, I thought I would share a few interesting facts that I have learned in following this story. When the subject is politics in Texas, things are never boring.
News reports shortly after the terrorist attack focused on the leadership of Lloyd Doggett, a Democratic Congressman who was identified as representing Austin. I checked the map of Congressional districts in the area, and it turns out that Austin has been sliced into three parts, with the other sections represented in Congress by two Republicans, Lamar Smith and Michael McCaul. This configuration, in turn, was part of the result of the absurd mid-decade redistricting that was engineered by former House Majority Leader Tom Delay. If you want to see a gerrymandered map, you will love Texas's congressional districts.
The major target of that redistricting plan in Austin, in fact, was Rep. Doggett, who nonetheless won re-election. When Doggett spoke out publicly against the attack on the IRS building, he was joined only by McCaul, with their third colleague notably missing. It is difficult to decide which was more surprising -- that one Republican would allow himself to be seen saying something positive about anything IRS-related, or that another could not bring himself to join in condemning a murderous attack on IRS employees in his backyard.
Perhaps more interesting, when Rep. Doggett introduced a resolution in the House condemning the attack, it passed by a vote of 408-2. Again, do we focus on the 408 women and men who were willing to say "violence is bad," or the two men who could not bring themselves to do so? The resolution, "Expressing concern regarding the suicide plane attack on Internal Revenue Service employees in Austin, Texas," honors the man who was killed (Vernon Hunter, a 68-year-old career public servant and Vietnam veteran), the first responders, and "commends Internal Revenue Service employees for their dedication and public service."
That last item was too much for one Congressman (whom I will not bother to name), who decided that the wording of the resolution implies that the tax code is "moral" when it is not. Even more bizarrely, the other "no" vote came from a Congressman who decided that the phrase "suicide plane attack" was the first step on a slippery slope toward stricter regulations on private aircraft. (I am not making this up.) Not all of these guys are playing with a full deck.
More than the two strange "no" votes on a resolution that should have been completely uncontroversial, the bigger worry is that this attack has been minimized and nearly forgotten so quickly. In fairness, the muted response is probably driven in part by the good luck that the deranged attacker was not able to kill more people. Still, it is difficult not to sense that the target of the attack is just too politically unpopular for anyone to care about. Other than (some of) the local Congressmen, no one could be bothered to focus on this tragedy.
All of which brings me back to this week's FindLaw column. Economists have a term called "revealed preference." Because traditional economic theory relies so heavily on the concept of "utility functions," which are mathematical expressions of people's preferences and desires, it would be great if we could determine each person's utility function. The problem is, we know that people will often lie if we directly ask them questions like: "If I took away 10% of your income, how many movies would you attend in a year?" The desire to convince someone NOT to take away 10% of one's income will be a strong incentive to overstate one's likely response. Moreover, even if people would not lie, they might not know how they would respond.
Because of the unreliability of this type of information gathering, it is sometimes helpful to ignore people's stated preferences and look at their revealed preferences. Although the definition of revealed preference is quite technical, the intuition is obvious: No matter what people say they prefer, we can (with some important limitations) see what they prefer by what they do. As so often happens in economics, a lot of mathematical firepower has been trained on the wisdom that we can derive from an old saying, in this case: "Actions speak louder than words."
In this case, we have politicians talking endlessly about how much they do not like taxes and the IRS. Many politicians specifically target the IRS and its employees as arrogant, incompetent, and out of control. If they really meant that, then we should expect to see those politicians taking actions consistent with their stated views. Instead, we have the opposite: Whereas every tax preference in existence could be administered by non-tax agencies (Health and Human Services enforcing the rules on health savings accounts, for example), we have every member of Congress repeatedly and enthusiastically voting for "tax cuts" that create the need for the IRS to enforce and administer yet more social policy through the tax code.
There is a reason, for example, that it became necessary a few years ago for Congress to adopt a consistent definition of "child" for tax purposes. Because of the adoption of various kid-friendly tax credits over the years, there were five inconsistent and overlapping definitions of child in the tax code. If Congress wants to, for example, make it less expensive to purchase child care, it enacts a tax credit for that purpose. We still have many different ways that we subsidize child rearing through the tax code, but at least we now have a consistent definition. (Until the definition was clarified by Congress, of course, the IRS was blamed for the complexity of their rules.)
This revealed preference for using the IRS to administer social policy is not a choice made in a vacuum. Congress uses the Code because its members like to call things "tax cuts." Even so, we at least have evidence that Congress does not hate the IRS enough to give up on this political gravy train.
As I argue in my column, however, this reliance on the IRS is a good thing. It is true that we could put the different social programs in different boxes on the big organizational chart, but doing so would squander the professionalism and expertise that we have gathered in the Internal Revenue Service. This is affirmatively a good way to run social policy, not an unfortunate side effect of Congressional opportunism.
In my FindLaw column this week, "Is the IRS the Most Trustworthy Agency in the Country? Even Republicans Seem to Think So," I move from defense to offense in discussing the role in society of the IRS and its employees. Two weeks ago, in my FindLaw column and Dorf on Law post, I responded to the February 18 suicide attack on the IRS building in Austin by saying, in essence: "Why aren't we more shocked? The IRS is wrongly vilified, and its employees are unfairly demonized for political gain. They are good people who deserve better." This week, my counter-intuitive point is that we have strong evidence not only that the IRS is staffed with many of our best and most professional citizens, but Congress -- no matter which party or ideology is in charge -- relies on the high quality of our tax enforcers to carry out its policies.
I will return to that argument momentarily. First, however, I thought I would share a few interesting facts that I have learned in following this story. When the subject is politics in Texas, things are never boring.
News reports shortly after the terrorist attack focused on the leadership of Lloyd Doggett, a Democratic Congressman who was identified as representing Austin. I checked the map of Congressional districts in the area, and it turns out that Austin has been sliced into three parts, with the other sections represented in Congress by two Republicans, Lamar Smith and Michael McCaul. This configuration, in turn, was part of the result of the absurd mid-decade redistricting that was engineered by former House Majority Leader Tom Delay. If you want to see a gerrymandered map, you will love Texas's congressional districts.
The major target of that redistricting plan in Austin, in fact, was Rep. Doggett, who nonetheless won re-election. When Doggett spoke out publicly against the attack on the IRS building, he was joined only by McCaul, with their third colleague notably missing. It is difficult to decide which was more surprising -- that one Republican would allow himself to be seen saying something positive about anything IRS-related, or that another could not bring himself to join in condemning a murderous attack on IRS employees in his backyard.
Perhaps more interesting, when Rep. Doggett introduced a resolution in the House condemning the attack, it passed by a vote of 408-2. Again, do we focus on the 408 women and men who were willing to say "violence is bad," or the two men who could not bring themselves to do so? The resolution, "Expressing concern regarding the suicide plane attack on Internal Revenue Service employees in Austin, Texas," honors the man who was killed (Vernon Hunter, a 68-year-old career public servant and Vietnam veteran), the first responders, and "commends Internal Revenue Service employees for their dedication and public service."
That last item was too much for one Congressman (whom I will not bother to name), who decided that the wording of the resolution implies that the tax code is "moral" when it is not. Even more bizarrely, the other "no" vote came from a Congressman who decided that the phrase "suicide plane attack" was the first step on a slippery slope toward stricter regulations on private aircraft. (I am not making this up.) Not all of these guys are playing with a full deck.
More than the two strange "no" votes on a resolution that should have been completely uncontroversial, the bigger worry is that this attack has been minimized and nearly forgotten so quickly. In fairness, the muted response is probably driven in part by the good luck that the deranged attacker was not able to kill more people. Still, it is difficult not to sense that the target of the attack is just too politically unpopular for anyone to care about. Other than (some of) the local Congressmen, no one could be bothered to focus on this tragedy.
All of which brings me back to this week's FindLaw column. Economists have a term called "revealed preference." Because traditional economic theory relies so heavily on the concept of "utility functions," which are mathematical expressions of people's preferences and desires, it would be great if we could determine each person's utility function. The problem is, we know that people will often lie if we directly ask them questions like: "If I took away 10% of your income, how many movies would you attend in a year?" The desire to convince someone NOT to take away 10% of one's income will be a strong incentive to overstate one's likely response. Moreover, even if people would not lie, they might not know how they would respond.
Because of the unreliability of this type of information gathering, it is sometimes helpful to ignore people's stated preferences and look at their revealed preferences. Although the definition of revealed preference is quite technical, the intuition is obvious: No matter what people say they prefer, we can (with some important limitations) see what they prefer by what they do. As so often happens in economics, a lot of mathematical firepower has been trained on the wisdom that we can derive from an old saying, in this case: "Actions speak louder than words."
In this case, we have politicians talking endlessly about how much they do not like taxes and the IRS. Many politicians specifically target the IRS and its employees as arrogant, incompetent, and out of control. If they really meant that, then we should expect to see those politicians taking actions consistent with their stated views. Instead, we have the opposite: Whereas every tax preference in existence could be administered by non-tax agencies (Health and Human Services enforcing the rules on health savings accounts, for example), we have every member of Congress repeatedly and enthusiastically voting for "tax cuts" that create the need for the IRS to enforce and administer yet more social policy through the tax code.
There is a reason, for example, that it became necessary a few years ago for Congress to adopt a consistent definition of "child" for tax purposes. Because of the adoption of various kid-friendly tax credits over the years, there were five inconsistent and overlapping definitions of child in the tax code. If Congress wants to, for example, make it less expensive to purchase child care, it enacts a tax credit for that purpose. We still have many different ways that we subsidize child rearing through the tax code, but at least we now have a consistent definition. (Until the definition was clarified by Congress, of course, the IRS was blamed for the complexity of their rules.)
This revealed preference for using the IRS to administer social policy is not a choice made in a vacuum. Congress uses the Code because its members like to call things "tax cuts." Even so, we at least have evidence that Congress does not hate the IRS enough to give up on this political gravy train.
As I argue in my column, however, this reliance on the IRS is a good thing. It is true that we could put the different social programs in different boxes on the big organizational chart, but doing so would squander the professionalism and expertise that we have gathered in the Internal Revenue Service. This is affirmatively a good way to run social policy, not an unfortunate side effect of Congressional opportunism.
Thursday, March 11, 2010
Red Baiting
By Mike Dorf
It was refreshing to see that prominent conservative lawyers have condemned the effort by Liz Cheney's "Keep America Safe" to smear Justice Dep't lawyers who had previously represented Guantanamo Bay detainees as the "Al Qaeda Seven." As various lawyers quoted in the story noted, the legal system cannot function effectively without lawyers and there was nothing unpatriotic about the representation these lawyers formerly provided. Indeed, quite the opposite case can be made--that the lawyers who gave their time and risked their reputations did so precisely because they wanted to stop what they regarded as (and what the Supreme Court ultimately agreed was) the abandonment of cherished constitutional principles.
That said, and recognizing that Cheney's insinuations were outrageous, a prospective government lawyer's past representation of clients might raise real issues. Consider an analogy. Suppose that a President is trying to decide whom to name to run an important agency with regulatory authority over some industry and that one of the leading candidates has spent a substantial portion of her prior career working within that industry. On the one hand, this clearly has advantages; the work done within the industry gives the candidate knowledge of the business and connections that could facilitate her work for the Administration. On the other hand, even assuming that the candidate will sever ties to former firms and will work solely in the public interest, the past experience may lead the general public to worry that the candidate's world view will be too close to that of industry. Reasons of this sort are routinely advanced as objections to regulators chosen from the ranks of regulated industries.
Are lawyers very different? In part, yes. We have professional standards of zealous advocacy that make a lawyer's representation of a class of clients not especially informative of the lawyer's actual views on policy questions. We learn less about a lawyer's views on the wrongfulness of murder from the fact that he represents indigent capital defendants than we learn about a prospective regulator's views about the costs and benefits of pollution control from the fact that the prospective regulator formerly was an executive for an oil company with a history of regulatory violations. A lawyer's past jobs are a weak proxy for her present views, even with respect to the conduct of her past clients.
Federalist Society co-founder David McIntosh was thus expressing a partial truth when he asked (as quoted in the NY Times story): "Was the person acting merely as an attorney doing their best to represent a client’s case . . . or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?"
That question still doesn't drill deep enough, however, because much depends on the nature of the "political or personal agenda." Representation of Gitmo detainees based on a personal agenda to advance the cause of global jihad would be a very good basis to keep someone out of the Justice Department. However, an agenda to ensure that all persons held captive by the U.S. receive due process is perfectly compatible with later government service. Indeed, it should count as a qualification. What makes the Cheney hyperbole so preposterous is that the agenda at issue for each of the "Al Qaeda Seven" was so obviously of the latter, due process sort.
It was refreshing to see that prominent conservative lawyers have condemned the effort by Liz Cheney's "Keep America Safe" to smear Justice Dep't lawyers who had previously represented Guantanamo Bay detainees as the "Al Qaeda Seven." As various lawyers quoted in the story noted, the legal system cannot function effectively without lawyers and there was nothing unpatriotic about the representation these lawyers formerly provided. Indeed, quite the opposite case can be made--that the lawyers who gave their time and risked their reputations did so precisely because they wanted to stop what they regarded as (and what the Supreme Court ultimately agreed was) the abandonment of cherished constitutional principles.
That said, and recognizing that Cheney's insinuations were outrageous, a prospective government lawyer's past representation of clients might raise real issues. Consider an analogy. Suppose that a President is trying to decide whom to name to run an important agency with regulatory authority over some industry and that one of the leading candidates has spent a substantial portion of her prior career working within that industry. On the one hand, this clearly has advantages; the work done within the industry gives the candidate knowledge of the business and connections that could facilitate her work for the Administration. On the other hand, even assuming that the candidate will sever ties to former firms and will work solely in the public interest, the past experience may lead the general public to worry that the candidate's world view will be too close to that of industry. Reasons of this sort are routinely advanced as objections to regulators chosen from the ranks of regulated industries.
Are lawyers very different? In part, yes. We have professional standards of zealous advocacy that make a lawyer's representation of a class of clients not especially informative of the lawyer's actual views on policy questions. We learn less about a lawyer's views on the wrongfulness of murder from the fact that he represents indigent capital defendants than we learn about a prospective regulator's views about the costs and benefits of pollution control from the fact that the prospective regulator formerly was an executive for an oil company with a history of regulatory violations. A lawyer's past jobs are a weak proxy for her present views, even with respect to the conduct of her past clients.
Federalist Society co-founder David McIntosh was thus expressing a partial truth when he asked (as quoted in the NY Times story): "Was the person acting merely as an attorney doing their best to represent a client’s case . . . or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?"
That question still doesn't drill deep enough, however, because much depends on the nature of the "political or personal agenda." Representation of Gitmo detainees based on a personal agenda to advance the cause of global jihad would be a very good basis to keep someone out of the Justice Department. However, an agenda to ensure that all persons held captive by the U.S. receive due process is perfectly compatible with later government service. Indeed, it should count as a qualification. What makes the Cheney hyperbole so preposterous is that the agenda at issue for each of the "Al Qaeda Seven" was so obviously of the latter, due process sort.
Wednesday, March 10, 2010
Republican Deficits and Budget Reconciliation
By Robert Hockett
Now that it's virtually certain that comprehensive health insurance reform will be pursued at least in part through House-Senate budget reconciliation, the present affords an opportune moment to take stock of past resorts to that procedure. Happily, this past Sunday's NYT provides a helpful survey of the contents and fiscal magnitudes of all major reconciliation bills passed by Congress since the procedure's first use in 1980. All who take interest in the details will find the full article commesurately interesting. Here I shall simply draw out a few particularly intriguing highlights.
Of the 15 major reconciliation bills passed from 1981 to the present, 10 were passed when Republicans held at least two of the three active organs of federal government -- Senate, House, and White House. (I'll buy-in for present purposes to the traditional mythology pursuant to which the Supreme Court is characterized as 'passive.') The remaining 5 were passed when it was the Democrats who held at least two of the three active organs. So on the question of who makes most use of the procedure, it looks like the Republicans have it by a ratio of 2 to 1. Highlight number one.
Next, some DoL readers might be interested in the party-composition of the federal government, and especially of the Congress, on these past occasions of resort to reconciliation. At least this might be so insofar as resort to the procedure when different parties hold different organs of government could strike some as more endangering of 'minority rights' than resort to the procedure when one party holds all three organs, or at least both chambers of Congress. (I employ scare-quotes here simply because we're not talking about 'fundamental human rights,' after all, but putative rights of legislative minorities to obstruct even contitutionally permissible legislation by majorities -- even very large ones, like, say, 59-41.) Here, then, are a few highlights on that score:
Three of the Republicans' 10 reconciliation bills were passed when the GOP controlled all three active organs of federal government, and one of the 10 was passed when they held, so to speak, a bit more than '2.5' of them: that would be the 2001 tax cut legislation, more on which presently, which passed when the Senate was evenly divided and accordingly subject, in theory at least, to tie-breaking by the Vice President. (As it happens, the measure passed by 58 to 33 vote; but tie-breaking was required to pass its 2003 follow-up, also more on which presently.) The remaining 6 -- hence, 3/5 of total -- Republican uses of reconciliation occurred while the three active organs of federal government were divided between the parties -- in all but one of them, with the Republicans holding one chamber of Congress and the White House, while the Democrats held the other chamber of Congress. (I'll get to the counterpart Democrat stats below.)
As for Democratic resorts to reconciliation, well, since the Republicans account for 10 of the 15 uses, it is of course trivially true, under our (for the time being, anyway) de facto system of two party rule, that the Democrats account for the remaining 5. Of those five reconciliation bills passed while Democrats held at least two of the three active organs of the federal government, two were when they held all three such organs, the other three -- hence, as in the case of the Republicans, 3/5 of the total -- when they held both chambers of Congress but not the presidency. There might, then, in this connection, be some room for argument that the Democrats' (half as many) resorts to reconciliation were more majoritarian than were the (twice as many) Republican resorts, given the nay-saying power wielded by a veto-holding president; but I won't attempt to hang any hats on this interesting prospect at present.
On to highlight number three: At least as interesting as the two parties' comparative proportions of total resorts to reconciliation (again, that 2 to 1 ratio in favor of Republicans), I think, is what they have used reconciliation for. Consider first the matter of budgetary impact, a subject of considerable media hype these days: Of all 15 uses of reconciliation, 3 have raised federal budget deficits, and all 3 were Republican uses. (Hence, again trivially but nevertheless significantly, 30% of Republcan resorts to reconciliation have been deficit-raising.) Two of these, moreover, each raised the federal deficit by much more than any other reconciliation acts save one -- one passed by Democrats -- have managed to lower it.
Largest among these Republican deficit-raising reconciliation acts was the 'Economic Growth and Tax Relief Reconciliation Act' of 2001. The effect of this legislation was to increase the federal deficit by over half a trillion dollars -- specifically, $552 billion -- over five years.
The second-largest deficit-growing impact came two years later with the Republicans' 'Jobs and Growth Tax Relief Reconciliation Act' of 2003, which increased the federal deficit by more than another third of a trillion -- specifically, $342.9 billion -- over five years. This one, moreover, required a tie-breaking vote in the Senate by Vice President Cheney -- of 'Reagan showed that deficits don't matter' fame -- to pass.
Finally, case three -- the Republicans' 'Tax Increase Prevention and Reconciliation Act' of 2005, which passed by a 54-44 vote in the Senate -- added another $70 billion to the federal deficit over 4 years.
All 5 Democratic resorts to reconciliation, by contrast to the Republican case, brought substantial decreases to the federal deficit. Of these, by far the largest was the 'Omnibus Budget Reconciliation Act' of 1993, which lowered the federal deficit by more than 2/5 of a trillion -- specifically, $433 billion -- over five years and ultimately passed, against stiff Republican opposition, by a vote of 51-50. (Yep, that means Al Gore can take credit for the largest reconciliation-wrought cut to the federal deficit rather as Dick Cheney can take credit for the second-largest reconciliation-wrought growth in the federal deficit.)
The Democrats also take the prize for the second-largest reconciliation-wrought cut to the federal deficit. That would be the 'Omnibus Budget Reconiciliation Act' of 1990, which trimmed $236 billion from the deficit over 5 years -- although in this case it bears noting that there was substantial moderate Republican support (remember moderate Republicans?) as well, including from then-President G. H. W. Bush, who was punished by his 'base' at the voting booths shortly thereafter.
All remaining uses of reconciliation, be they by Republicans or Democrats, involved smaller decreases to the federal deficit -- generally around $130 billion (Republicans in 1981 and 1982, Democrats in 1997) or less, usually much less.
A final point worth considering in respect of the contents of past reconciliation acts has to do with how 'purely fiscal' as distinguished from 'social-policy-oriented' they have been. This distinction is implicated, of course, any time somebody darkly hints or vaguely suggests that it is in some sense illicit to employ reconciliation as a means of passing social policy over the objections of recalcitrant minorities in the Senate. Against this backdrop, what is perhaps most striking is how sweeping, in social policy terms and indeed even express aims, virtually all resorts to reconciliation since 1981 have been. Nary a one seems to have neglected to make significant changes to AFDC, Medicare, Medicaid, CHIPs, and/or other social welfare and social insurance programs. And that is to say nothing of the overt social policy objectives typically sought through all major tax overhaul legislation.
What, then, to make of all this? Well, perhaps I am missing something, but against the backdrop just rehearsed, it is hard to see what would be so importantly different -- let alone 'illegitimate' or problematically 'minority-trampling' -- about using reconciliation to handle what ever small gaps remain between the House and Senate health insurance reform bills passed this past autumn and winter, respectively, by supermajorities. The subject programs, for one thing, look to be of the same sort as have been past such programs in all earlier reconciliation bills -- health insurance, after all, constituting one of the three classic forms of social insurance afforded in all polities with advanced economies (even our own, by and large!) since the time of Bismarck. The Democrats, for another thing, control both the White House and both chambers of Congress with huge majorities. And, finally, perhaps best of all in light of current business media chatter, the legislation now contemplated would constitute yet another case in which the Democrats maintain their track record of resorting to reconciliation not only just about twice as rarely as Republicans, but also only to lower, rather than as in the Republican case to raise, federal deficits.
(Not that there's anything wrong with that -- i.e., with well spent deficit moneys -- as Neil has forcefully shown in previous posts!)
Now that it's virtually certain that comprehensive health insurance reform will be pursued at least in part through House-Senate budget reconciliation, the present affords an opportune moment to take stock of past resorts to that procedure. Happily, this past Sunday's NYT provides a helpful survey of the contents and fiscal magnitudes of all major reconciliation bills passed by Congress since the procedure's first use in 1980. All who take interest in the details will find the full article commesurately interesting. Here I shall simply draw out a few particularly intriguing highlights.
Of the 15 major reconciliation bills passed from 1981 to the present, 10 were passed when Republicans held at least two of the three active organs of federal government -- Senate, House, and White House. (I'll buy-in for present purposes to the traditional mythology pursuant to which the Supreme Court is characterized as 'passive.') The remaining 5 were passed when it was the Democrats who held at least two of the three active organs. So on the question of who makes most use of the procedure, it looks like the Republicans have it by a ratio of 2 to 1. Highlight number one.
Next, some DoL readers might be interested in the party-composition of the federal government, and especially of the Congress, on these past occasions of resort to reconciliation. At least this might be so insofar as resort to the procedure when different parties hold different organs of government could strike some as more endangering of 'minority rights' than resort to the procedure when one party holds all three organs, or at least both chambers of Congress. (I employ scare-quotes here simply because we're not talking about 'fundamental human rights,' after all, but putative rights of legislative minorities to obstruct even contitutionally permissible legislation by majorities -- even very large ones, like, say, 59-41.) Here, then, are a few highlights on that score:
Three of the Republicans' 10 reconciliation bills were passed when the GOP controlled all three active organs of federal government, and one of the 10 was passed when they held, so to speak, a bit more than '2.5' of them: that would be the 2001 tax cut legislation, more on which presently, which passed when the Senate was evenly divided and accordingly subject, in theory at least, to tie-breaking by the Vice President. (As it happens, the measure passed by 58 to 33 vote; but tie-breaking was required to pass its 2003 follow-up, also more on which presently.) The remaining 6 -- hence, 3/5 of total -- Republican uses of reconciliation occurred while the three active organs of federal government were divided between the parties -- in all but one of them, with the Republicans holding one chamber of Congress and the White House, while the Democrats held the other chamber of Congress. (I'll get to the counterpart Democrat stats below.)
As for Democratic resorts to reconciliation, well, since the Republicans account for 10 of the 15 uses, it is of course trivially true, under our (for the time being, anyway) de facto system of two party rule, that the Democrats account for the remaining 5. Of those five reconciliation bills passed while Democrats held at least two of the three active organs of the federal government, two were when they held all three such organs, the other three -- hence, as in the case of the Republicans, 3/5 of the total -- when they held both chambers of Congress but not the presidency. There might, then, in this connection, be some room for argument that the Democrats' (half as many) resorts to reconciliation were more majoritarian than were the (twice as many) Republican resorts, given the nay-saying power wielded by a veto-holding president; but I won't attempt to hang any hats on this interesting prospect at present.
On to highlight number three: At least as interesting as the two parties' comparative proportions of total resorts to reconciliation (again, that 2 to 1 ratio in favor of Republicans), I think, is what they have used reconciliation for. Consider first the matter of budgetary impact, a subject of considerable media hype these days: Of all 15 uses of reconciliation, 3 have raised federal budget deficits, and all 3 were Republican uses. (Hence, again trivially but nevertheless significantly, 30% of Republcan resorts to reconciliation have been deficit-raising.) Two of these, moreover, each raised the federal deficit by much more than any other reconciliation acts save one -- one passed by Democrats -- have managed to lower it.
Largest among these Republican deficit-raising reconciliation acts was the 'Economic Growth and Tax Relief Reconciliation Act' of 2001. The effect of this legislation was to increase the federal deficit by over half a trillion dollars -- specifically, $552 billion -- over five years.
The second-largest deficit-growing impact came two years later with the Republicans' 'Jobs and Growth Tax Relief Reconciliation Act' of 2003, which increased the federal deficit by more than another third of a trillion -- specifically, $342.9 billion -- over five years. This one, moreover, required a tie-breaking vote in the Senate by Vice President Cheney -- of 'Reagan showed that deficits don't matter' fame -- to pass.
Finally, case three -- the Republicans' 'Tax Increase Prevention and Reconciliation Act' of 2005, which passed by a 54-44 vote in the Senate -- added another $70 billion to the federal deficit over 4 years.
All 5 Democratic resorts to reconciliation, by contrast to the Republican case, brought substantial decreases to the federal deficit. Of these, by far the largest was the 'Omnibus Budget Reconciliation Act' of 1993, which lowered the federal deficit by more than 2/5 of a trillion -- specifically, $433 billion -- over five years and ultimately passed, against stiff Republican opposition, by a vote of 51-50. (Yep, that means Al Gore can take credit for the largest reconciliation-wrought cut to the federal deficit rather as Dick Cheney can take credit for the second-largest reconciliation-wrought growth in the federal deficit.)
The Democrats also take the prize for the second-largest reconciliation-wrought cut to the federal deficit. That would be the 'Omnibus Budget Reconiciliation Act' of 1990, which trimmed $236 billion from the deficit over 5 years -- although in this case it bears noting that there was substantial moderate Republican support (remember moderate Republicans?) as well, including from then-President G. H. W. Bush, who was punished by his 'base' at the voting booths shortly thereafter.
All remaining uses of reconciliation, be they by Republicans or Democrats, involved smaller decreases to the federal deficit -- generally around $130 billion (Republicans in 1981 and 1982, Democrats in 1997) or less, usually much less.
A final point worth considering in respect of the contents of past reconciliation acts has to do with how 'purely fiscal' as distinguished from 'social-policy-oriented' they have been. This distinction is implicated, of course, any time somebody darkly hints or vaguely suggests that it is in some sense illicit to employ reconciliation as a means of passing social policy over the objections of recalcitrant minorities in the Senate. Against this backdrop, what is perhaps most striking is how sweeping, in social policy terms and indeed even express aims, virtually all resorts to reconciliation since 1981 have been. Nary a one seems to have neglected to make significant changes to AFDC, Medicare, Medicaid, CHIPs, and/or other social welfare and social insurance programs. And that is to say nothing of the overt social policy objectives typically sought through all major tax overhaul legislation.
What, then, to make of all this? Well, perhaps I am missing something, but against the backdrop just rehearsed, it is hard to see what would be so importantly different -- let alone 'illegitimate' or problematically 'minority-trampling' -- about using reconciliation to handle what ever small gaps remain between the House and Senate health insurance reform bills passed this past autumn and winter, respectively, by supermajorities. The subject programs, for one thing, look to be of the same sort as have been past such programs in all earlier reconciliation bills -- health insurance, after all, constituting one of the three classic forms of social insurance afforded in all polities with advanced economies (even our own, by and large!) since the time of Bismarck. The Democrats, for another thing, control both the White House and both chambers of Congress with huge majorities. And, finally, perhaps best of all in light of current business media chatter, the legislation now contemplated would constitute yet another case in which the Democrats maintain their track record of resorting to reconciliation not only just about twice as rarely as Republicans, but also only to lower, rather than as in the Republican case to raise, federal deficits.
(Not that there's anything wrong with that -- i.e., with well spent deficit moneys -- as Neil has forcefully shown in previous posts!)
Tuesday, March 09, 2010
Texts and Guns and Scalia and Posner
By Mike Dorf
My latest FindLaw column unpacks a joke made by Justice Scalia during the oral argument last week in McDonald v. Chicago. Justice Scalia suggested that the lawyer arguing the case for incorporating the Second Amendment was making a tactical error by placing so much reliance on the 14th Amendment's Privileges or Immunities Clause, rather than its Due Process Clause. He joked that the lawyer appeared to be bucking for a position as a law professor.
In my column, I explain why Justice Scalia has the issue not just wrong but backwards: It's textualists like him that have led lawyers (and some academics) to argue that the work of incorporation of the Bill of Rights should be shifted from the Due Process Clause to the Privileges or Immunities Clause. Academics tend to be much more legal realist about such matters. Speaking for myself, it's hard to imagine that constitutional law would look very different if the Supreme Court had incorporated the Bill of Rights via P or I rather than DP. Perhaps there would have been some differences regarding the rights of non-citizens (because P or I protects "citizens" while DP protects "persons"), but even there, one can well imagine the Court having glossed the text to reach the results that seemed sensible. After all, everyone on the Court now accepts that the equal protection clause applicable to the federal government has the same content as the equal protection clause applicable to the states--despite the fact that there is no equal protection clause applicable to the federal government. Yet you don't hear any textualists calling for the overruling of Bolling v. Sharpe--partly because that case, which "reverse incorporates" the equal protection clause, is what allows Justice Scalia et al to invalidate federal affirmative action programs.
My column recounts a bit of the recent history of judicial complaints about the legal academy. Mostly those complaints amount to the charge that legal academic literature is impractical, overly theoretical, esoteric, and incompetently inter-disciplinary. I offer a partial defense which I won't rehearse here. Instead, I want to surface an issue raised by one judicial critic whose critique points in a different direction.
Most of the judges who complain about the impracticality of legal scholarship contend that it does not offer sufficient guidance to the sorts of doctrinal questions they face. Theirs is a narrative of decline: In the good old days, prominent law professors wrote treatises collecting and distilling judicial opinions into decision rules; that sort of thing was helpful in deciding new cases; but since the academy stopped rewarding treatise writers, legal academics have ventured off in other, less helpful directions.
Judge Posner says almost the exact opposite. Consider his critique of University of Chicago Law Professor David Strauss's treatment of the DeShaney case--in which the Supreme Court found no constitutional violation when a state social services agency failed to intervene to protect a small child against repeated (and repeatedly reported) beatings by his father. Strauss criticized the decision but Posner thought Strauss paid insufficient attention to the damned-if-you-do-damned-if-you-don't quality of the dilemma faced by social workers trying to decide whether to remove custody. More than that, Posner faulted Strauss for armchair philosophizing rather than empirical investigation. Posner wrote (on pages 209-10 of Overcoming Law):
Now I happen to think this is somewhat overstated. Conducting the sorts of empirical inquiries Posner has in mind certainly has an important place in the legal academy, but so does doctrinal work--not conceived simply in the shadow-court way but by leveraging the key advantages that legal academics have: We have the luxury of time and the ability to view issues in wider focus than do judges, who must decide the case before them, no more and no less. This broader conception of doctrinal work is what Judge Edwards was describing in the passage in my column in which he says what he has in mind by practical scholarship, and it's highly defensible.
Nonetheless, if Posner overstates his case, he still has a case: Judges in deciding hard cases should look at the consequences of their decisions, and legal (and other) academics can provide immeasurable help in that respect. So, what will be the consequences of a Supreme Court ruling saying that there is a federal constitutional right to own and possess a handgun applicable against the states? Various amici in the McDonald case have submitted briefs purporting to cite evidence relevant to that question. Writing in what will almost certainly be a dissent, Justice Breyer and/or one of Justices Stevens, Ginsburg, and Sotomayor will likely cite some of this evidence as a reason why the Court is wrong to apply the Second Amendment to the states. But I doubt that the majority will find this evidence relevant. If I'm right, it will be because when Justice Scalia calls for practical help from lawyers and academics, what he means is doctrinal help. Where gun rights are concerned, his notion of what's practical does not include how things work out in practice. As he wrote dismissively and question-beggingly in concluding his opinion in DC v. Heller:
Maybe not, but it is the role of the Court to say what the Second Amendment means--and given that there is legitimate contestation over meaning as a textual and historical matter, consequences ought to count for something.
My latest FindLaw column unpacks a joke made by Justice Scalia during the oral argument last week in McDonald v. Chicago. Justice Scalia suggested that the lawyer arguing the case for incorporating the Second Amendment was making a tactical error by placing so much reliance on the 14th Amendment's Privileges or Immunities Clause, rather than its Due Process Clause. He joked that the lawyer appeared to be bucking for a position as a law professor.
In my column, I explain why Justice Scalia has the issue not just wrong but backwards: It's textualists like him that have led lawyers (and some academics) to argue that the work of incorporation of the Bill of Rights should be shifted from the Due Process Clause to the Privileges or Immunities Clause. Academics tend to be much more legal realist about such matters. Speaking for myself, it's hard to imagine that constitutional law would look very different if the Supreme Court had incorporated the Bill of Rights via P or I rather than DP. Perhaps there would have been some differences regarding the rights of non-citizens (because P or I protects "citizens" while DP protects "persons"), but even there, one can well imagine the Court having glossed the text to reach the results that seemed sensible. After all, everyone on the Court now accepts that the equal protection clause applicable to the federal government has the same content as the equal protection clause applicable to the states--despite the fact that there is no equal protection clause applicable to the federal government. Yet you don't hear any textualists calling for the overruling of Bolling v. Sharpe--partly because that case, which "reverse incorporates" the equal protection clause, is what allows Justice Scalia et al to invalidate federal affirmative action programs.
My column recounts a bit of the recent history of judicial complaints about the legal academy. Mostly those complaints amount to the charge that legal academic literature is impractical, overly theoretical, esoteric, and incompetently inter-disciplinary. I offer a partial defense which I won't rehearse here. Instead, I want to surface an issue raised by one judicial critic whose critique points in a different direction.
Most of the judges who complain about the impracticality of legal scholarship contend that it does not offer sufficient guidance to the sorts of doctrinal questions they face. Theirs is a narrative of decline: In the good old days, prominent law professors wrote treatises collecting and distilling judicial opinions into decision rules; that sort of thing was helpful in deciding new cases; but since the academy stopped rewarding treatise writers, legal academics have ventured off in other, less helpful directions.
Judge Posner says almost the exact opposite. Consider his critique of University of Chicago Law Professor David Strauss's treatment of the DeShaney case--in which the Supreme Court found no constitutional violation when a state social services agency failed to intervene to protect a small child against repeated (and repeatedly reported) beatings by his father. Strauss criticized the decision but Posner thought Strauss paid insufficient attention to the damned-if-you-do-damned-if-you-don't quality of the dilemma faced by social workers trying to decide whether to remove custody. More than that, Posner faulted Strauss for armchair philosophizing rather than empirical investigation. Posner wrote (on pages 209-10 of Overcoming Law):
the University of Chicago Law School, where Strauss teaches, is one block east of the university's School of Social Service Administration, the nation's premier school of social work. A two-minute walk would have brought Strauss into the presence of experts with whom to explore the practical consequences of a decision the other way in DeShaney. One block east of the law school is the university's School of Public Policy Studies, where Strauss could have consulted experts in public administration and finance to determine the consequences of using the federal courts to enforce, in the name of civil rights, standards of right conduct for public employees engaged in rescue services, broadly defined.
. . . In any sensible division of responsibilities among branches of the legal profession, the task of conducting detailed empirical inquires into the presuppositions of legal doctrines would be assigned to the law schools. Too many constitutional scholars conceive their role as that of shadow judges, writing, in the guise of articles, alternative judicial opinions in Supreme Court cases.
Now I happen to think this is somewhat overstated. Conducting the sorts of empirical inquiries Posner has in mind certainly has an important place in the legal academy, but so does doctrinal work--not conceived simply in the shadow-court way but by leveraging the key advantages that legal academics have: We have the luxury of time and the ability to view issues in wider focus than do judges, who must decide the case before them, no more and no less. This broader conception of doctrinal work is what Judge Edwards was describing in the passage in my column in which he says what he has in mind by practical scholarship, and it's highly defensible.
Nonetheless, if Posner overstates his case, he still has a case: Judges in deciding hard cases should look at the consequences of their decisions, and legal (and other) academics can provide immeasurable help in that respect. So, what will be the consequences of a Supreme Court ruling saying that there is a federal constitutional right to own and possess a handgun applicable against the states? Various amici in the McDonald case have submitted briefs purporting to cite evidence relevant to that question. Writing in what will almost certainly be a dissent, Justice Breyer and/or one of Justices Stevens, Ginsburg, and Sotomayor will likely cite some of this evidence as a reason why the Court is wrong to apply the Second Amendment to the states. But I doubt that the majority will find this evidence relevant. If I'm right, it will be because when Justice Scalia calls for practical help from lawyers and academics, what he means is doctrinal help. Where gun rights are concerned, his notion of what's practical does not include how things work out in practice. As he wrote dismissively and question-beggingly in concluding his opinion in DC v. Heller:
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Maybe not, but it is the role of the Court to say what the Second Amendment means--and given that there is legitimate contestation over meaning as a textual and historical matter, consequences ought to count for something.
Subscribe to:
Posts (Atom)
Posts
