Thursday, April 30, 2009

Justice Souter to Retire (Updated Post)

(Updated as this story has now been confirmed and updated a second time as I've thought some more about it.)


And so the question on everyone's mind (okay, on my mind) is this: What will it take to change Senate Judiciary Committee Rule IV in the event that the post-Specter-shift Republicans decide to play hardball? In today's Republican Party, Orrin Hatch and Lindsey Graham look like the best hopes to move Pres. Obama's nominee to the full Senate.

But let's suppose that the Republicans (now minus Specter) on the Judiciary Committee decide they want to filibuster Pres. Obama's nominee (oh, i don't know, let's say Pam Karlan) in the Committee, recognizing that the Dems (either with Al Franken seated or with the cooperation of one of the Maine Senators) can break a filibuster in the full Senate. Senate Rule XXVI authorizes each committee to make its own rules, which is how we get Judiciary Committee Rule IV. That can be amended by the committee, but presumably the proposal to amend Rule IV would itself be subject to the Rule IV procedure, and so if the Republican members of the committee are unwilling to allow a vote on Justice Karlan, then they're likely unwilling to allow a vote on an amendment to change Rule IV itself.

That leaves us with a couple of options: 1) Change Rule IV now, with the Chair deeming Specter still officially a Republican; 2) or change Senate Rule XXVI to limit the sorts of rules that a committee can employ. Each of these approaches would require Specter's cooperation (or the cooperation of either or both of the Maine Senators in the case of the full Senate move).

I should be clear that I'm not wild about either of these approaches. Although I generally don't like the filibuster for legislation, I think it can be justified with respect to judicial appointments, where one hopes for something approaching consensus. That's certainly how I felt when the Republicans had a Senate majority and the Presidency, and while politicians invariably flip on these issues depending on who is in power, I would like to think that academics have some broader obligation of consistency. Not that it won't be fun to watch each side break out the other side's speeches from a few years ago.

The Judiciary Committee's "mini-filibuster" rule (i.e., Rule IV) could, in theory, be justified on the same sort of grounds as the full Senate's filibuster rule (really the cloture rule), but given that the Judiciary Committee often attracts each party's most ideological Senators, there is a distinct possibility that instead of leading to centrist nominees, Rule IV could simply lead to gridlock. The fact that Rule IV apparently hasn't had that effect so far provides some reassurance, although it's possible that this is simply a function of Arlen Specter for the Republicans and the notorious lack of backbone for the Democrats. If I had to bet, I'd say that Lindsey Graham's recent statements favoring a "big tent" approach for the Republican Party going forward make him the most likely to cast at least a vote for ending committee debate on President Obama's nominee.

Much will depend, of course, on who that nominee is. Given the position of strength of the President and the Dems in the Senate overall, it's hard to imagine the Repubs winning a showdown based on either Judiciary Committee Rule IV or the filibuster rule in the full Senate, so long as President Obama nominates someone who is to the right of Hugo Chavez.

Posted by Mike Dorf

Specter and Naked Political Ambition

In two posts last summer (here and here), I discussed Sen. Joe Lieberman's career after his decision to become an independent rather than a Democrat (but to continue caucusing with the Democrats). I noted Lieberman's surprisingly low profile in the Senate and his apparent lack of an affirmative agenda, and I concluded that Lieberman simply was desperate to keep his Senate seat as a goal in itself. I thus agreed with Michael Dorf's earlier assessments that "Lieberman has made plain that the cause about which he cares most deeply is Joe Lieberman," and "[B]ehind Lieberman's disarming wit lies the soul of an opportunist."

Which brings us to Arlen Specter. Whatever one might think of my assessment of Joe Lieberman's motives, one has to give Specter credit for removing all doubt about his. In his announcement that he has decided to become a Democrat after several decades as a Republican Senator from Pennsylvania, he stated quite openly that he was motivated by the fact that he would have probably lost the Republican primary next year against a hard-right opponent. Noting that he did not want to have his political career ended by the Pennsylvania Republican primary electorate, he simply admitted that he wanted to stay in the Senate and was willing to do what was necessary to win a sixth term. Two cheers for honesty!

The political world has treated this as a major story, and the Democrats were so happy to have Specter defect that they promised to give him full seniority in their caucus as if he had been a Democrat all along. Why should this matter to anyone? Specter made clear that he still would not support some important positions on which most Democrats and President Obama agree, such as the EFCA bill (changing the rules on union organizing), and he continues to oppose Dawn Johnsen to head the Office of Legal Counsel. He celebrated his defection by voting against Obama's budget. He announced that he would not necessarily join his fellow Democrats to end filibusters.

Some of this, of course, is a matter of trying to maintain some dignity. Rather than announcing that he has agreed to change his views to align with the majority across the board, Specter understandably at least wants to make it seem that he is maintaining his independent-mindedness. The Democrats have surely (one hopes) felt him out in terms of his likelihood to support them on other issues on which Specter's positions are not yet public. (On the other hand, as Michael Dorf pointed out earlier this week, Specter's move could also make it more difficult to win confirmation of Obama's judicial nominations.)

Fair enough. This could end up mattering, in that the Democrats might have just lined up a crucial additional vote on some unspecified contentious future issues, and in return they allowed Specter to continue to say that he is not selling out -- for anything other than the seat itself.

-- Posted by Neil H. Buchanan

Wednesday, April 29, 2009

Disparate Impact, Double Effect, and Euthanasia

On FindLaw today, I have a column that considers Ricci v. DeStefano, a case argued before the U.S. Supreme Court last week, in which white firefighters challenge actions taken by the City of New Haven Fire Department as violations of the Fourteenth Amendment Equal Protection Clause. The Fire Department had given an examination to determine whom to promote in its ranks but, after a hearing, decided not to certify the results of that examination because they produced a disproportionately white set of promotion-eligible individuals (and an all-white group of individuals to be automatically promoted). The Fire Department argues that if it had certified the test results, it would have been guilty of "disparate impact" race discrimination under Title VII (in which a facially neutral act resulting in a racially disproportionate outcome must satisfy "business necessity" to avoid violating the statute). My column examines the "damned if you do/damned if you don't" quality of trying to avoid both disparate treatment and disparate impact race discrimination.

In this post, I want to offer a provocative analogy to consider in thinking about disparate impact (and more specifically, in considering the Fire Department's decision to throw out the results of a test with a racially disparate impact): the case of giving a terminal patient a lethal dose of morphine. Under the laws of 48 states, physician-assisted suicide is a criminal act (the two outlier states are Oregon and Washington). This means that if a doctor deliberately gives a patient a lethal drug with the objective of ending his life, the doctor violates the law of almost every state. The law (and, to my knowledge, Catholic doctrine as well) allows, however, for a patient's pain to be treated with opiates sufficient in quantity to make the pain stop, even if that dosage is lethal to the patient. The difference between the two scenarios is the intent of the doctor: if the goal is to kill the patient, the act is prohibited, but if the goal is to relieve the pain (and has the incidental effect of also killing the patient), then the act -- given the importance of pain relief -- is permissible. The difference between intent and effect in this context tracks the distinction between purpose and knowledge (or what is sometimes called the "intending/knowing distinction").

How is this like "disparate impact" discrimination? In the following sense. When an employer uses a measure to determine how to allocate job benefits, her goal is ordinarily to award promotions only to the best employees. Once having used the measure, however, the employer learns about some of its unintended effects, and this can include a racially disparate impact. Knowing of this impact, the employer's decision to continue to rely on the test amounts to "knowing" discrimination -- that is, the employer is knowingly (if not intentionally) using a tool for awarding promotions that will favor white candidates over black candidates. If the employer knows of another, equally good, test of employee quality that does not have a racially disparate impact, moreover, the decision to continue relying on the "discriminatory" test represents a decision knowingly to engage in unnecessary discrimination.

Because the decision is not intentional, however, one who subscribes to a strong version of "double effect" reasoning might argue that such an employer's actions are permissible, despite the unnecessary and harmful discriminatory effect, just as a lethal dose of morphine is permissible, despite the lethal effect.

One important distinction, however, is that a life-threatening quantity of medication appears to be necessary to relieving many dying patients' suffering (which often includes oxygen starvation -- the sensation of suffocating -- and the terrible panic that this sensation causes), while the test in our example is apparently not necessary to awarding promotions to the most qualified employees (given the existence of another test with less racial impact). If there were two equally effective pain medicines, only one of which would kill the terminal patient, then I suspect that the law as well as Catholic doctrine would frown upon the selection of the lethal medicine over the nonlethal one. Indeed, such selection would, on its face, strongly suggest that the doctor's (and patient's) goal was in fact to end the patient's life and not merely to relieve his or her pain.

An employer's initial decision to use a particular written examination to determine whom to promote is, in all likelihood, innocent. She is not trying to discriminate; she is simply using a measure that, more or less, predicts performance quality. Once one has learned the effects of that examination, however, one must take responsibility for those effects and continue to employ the test with impunity only if it is truly necessary to rewarding the best employees with promotions. In the case of morphine and other pain-killers, we do not appear to have an equally effective (but non-lethal) way to end a suffering patient's agony. Until the same can be said of the test that the New Haven Fire Department gave its employees, it is difficult not to find a stubborn commitment to this particular test's results (and a refusal to change course) an instance of intentional discrimination. That such discrimination might be mandatory as a matter of Fourteenth Amendment Equal Protection would accordingly be unfortunate indeed.

Posted by Sherry Colb

The Flyover Debacle: Head(s) Must Roll

Earlier this week, people in lower Manhattan and Jersey City were panicked by the sight of a jumbo jet flying at a very low altitude, apparently being pursued by a jet fighter. The airplane made a pass around the southern tip of Manhattan, near Ground Zero, making unusual turns and changes in altitude. This sight sent workers and residents from around the area into the streets, generating a rush of calls to the 9-1-1 emergency line and creating fears that another planes-as-bombs terrorist attack was underway. As it turned out, the jumbo jet was one of the planes that is sometimes used as Air Force One, and the purpose of the flight was to "update" the military's photos of the plane with New York City in the background. Incredibly, the people who approved the flight ordered the New York Police Department and other responsible entities not to tell the public in advance that this was an exercise.

If this sounds to you like a perfect example of why research organizations must, post-Milgram, consider the consequences of experiments on human subjects, you would be half right. Not telling people in the New York area that an event eerily similar to the 9/11 attacks was about to occur would qualify as something that should almost certainly be ruled out on the grounds that some forms of mental anguish must not be visited on the unsuspecting public. The problem is, when institutional review boards consider whether to allow experiments on humans, there is at least something on the other side of the ledger, something good that might come from observing the effects of an experiment on its unaware victims. Even gruesome human rights violations like the Tuskegee Experiments had a claimed justification that the results would advance our knowledge of the effects of syphilis on humans. In the New York City flyover, the justification for the event includes nothing that could even begin to suggest a benefit from secrecy. In fact, as NBC's news anchor Brian Williams points out, this could have been a very public event with broad and positive coverage, along the lines of an air show, with people coming out with their children to see Air Force One for perhaps the only time in their lives. Instead, it was treated as a secret so important that New York's authorities were threatened with the loss of federal funds if they allowed the public to know about it.

I lived in Northern New Jersey and Manhattan from summer 2003 through summer 2007, and I have had loved ones living in New York City for all of my adult life. When I lived there, the daily normalcy of life was always accompanied by the sense that something could happen at any second that would plunge the world into chaos. A power failure in Fall 2003, a Blue Angels flyover in 2006, an explosion on the Upper East Side in 2007, and other events always brought to mind one question: "Is this terrorism?" Once lodged in the psyche, the fear of another attack is not easily shaken and is quite readily stoked.

When I was a judicial clerk in 2002-03, living in Oklahoma City, I experienced a similarly panicked moment. With Oklahoma City having been the site of the second most deadly act of terrorism on U.S. soil, and with the federal courthouse where I worked being located directly across the street from the bombing site, terrorism was never far from my mind. At one point, I had been ill for a few days with the flu and thus had not been paying attention to any local news (which I tended to ignore anyway, given my temporary resident status and the demands of the clerkship). One evening, as I was trying to recover from my illness, I started to hear helicopters flying overhead. Then I heard jets, then explosions. I stumbled outside to see what was going on, and I saw my neighbors wandering about in (what appeared to me to be) similar confusion. After another few minutes of escalating sounds of chaos, I gathered my pets and went to the basement, trying to imagine what was going on, who could be attacking from the air, and how to get out of town. I have never felt so terrified.

As it turned out, this was an elaborate fireworks display that was meant to celebrate the state's equivalent of Independence Day. Even though it turned out to be a reasonably well-publicized event, I have always thought that it was a fundamental error to use military imagery in a celebration among a population that would include shut-ins who remember all too vividly the 1995 attack on the Murrah Building. My confusion might have been merely due to unique personal circumstances, but how many people are we willing to ignore in the name of a good show?

President Obama has said that there will be an investigation into this week's grotesque and incomprehensible decisions by the U.S. military. I must say that this is an instance in which Obama's famed equanimity grated on me, since he almost appeared to be amused by the whole thing. The man who authorized the debacle has taken Rumsfeldian "full responsibility" and continues to hold his job.

It is common in situations where we unmask failures in government or business to demand that people lose their jobs, or at least are demoted and publicly shamed. Too often, public outrage is turned into near-vigilantism; and I certainly give President Obama credit for deflating outrage over the AIG bonuses last month, given how crazy the public (and Congressional) response had become. Investigations and full process are clearly appropriate here, and there is no reason to fire someone quickly just for the sake of firing them. Still, it would take an enormous surprise in this story for this not to be a firable offense, once the facts are in. Even good, qualified people can make career-defining errors, and this seems to be such a case, based on what we currently know. If we are ultimately told that this was simply an "unfortunate error" or some such double-talk, we will know that justice is not being served.

-- Posted by Neil H. Buchanan

Tuesday, April 28, 2009

How Specter's Defection Could Make It Harder to Confirm Pres. Obama's Judicial Nominations

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

Posted by Mike Dorf

Monday, April 27, 2009

Climate Change and the Clean Air Act As Is

Last week, the Administration announced its much anticipated “endangerment” finding on greenhouse gases and the Clean Air Act (CAA). Quite cleverly, the finding was a preliminary step only: it concluded that six major GHGs combine to function as “air pollution” that may be “reasonably anticipated to endanger public health and welfare” under Title II of the Act (on mobile sources). This had the virtue (to EPA) of protecting EPA’s discretion to treat different types of GHG sources differently.

So just out from NYU yesterday: a roadmap for regulating four of the six GHGs under the CAA as currently structured (assuming the finding is finalized as planned). The NYU report outlines (1) the legal arguments that the CAA fully authorizes EPA to create a “cap-and-trade” program for the six major GHGs, (2) the way that such a program could operate at or near an “economy wide” scale, and finally (3) that standard cost/benefit analyses would support EPA moving forward with such a program quickly.

There is much to admire in the report. It suggests plausible (and even creative) paths forward assuming no Congressional action on climate change for the foreseeable future. It offers the first “cover-to-cover” assessment of the options available to EPA under the CAA of which I’m aware (even EPA’s own “Advanced Notice of Proposed Rulemaking" last year wasn’t as comprehensive). These are important achievements because the negotiations in Copenhagen in December will likely stall if the U.S. doesn’t show up ready to commit to real cuts in the very near future.

But let me outline the following reasons for caution and perhaps even for insisting that Congress update the CAA itself, hastily if need be. As many have noted lately and as the NYU report makes clear, we have a very broad spectrum of GHG sources we must confront to make meaningful cuts in emissions nationwide. If/when EPA rolls out a broadly applicable cap-and-trade system pertaining to all or most of our many different kinds of polluters, the few guarantees we will have include the following: (1) the right to emit GHGs will be much more valuable to some economic actors than it will be to others; (2) some of these actors will be able to continue business-as-usual by innovating new means of doing their business while some will not be; and finally (3) any scarcities in allowable emission permits that arise will be of uncertain intensity/duration and, therefore, of unknown effect on the price of GHG emission allowances.

With these three certainties in mind, the following seems unavoidable: for cap-and-trade to spur innovation and actually harness the power of free markets, the pricing of emission allowances will have to rise to a level where they become significant factors in economic disruption of various kinds. And when that happens, it will be crucial that the nation and its leaders have actually had a hand in creating such a system. In fact, my hunch is that EPA thinks exactly this.

Put differently, without real Congressional ownership of cap-and-trade, the system that is most likely to result is one replete with precisely the sort of “safety valves” and other escape hatches planned in advance for when allowances become truly scarce that the result will be depressed emission allowance prices – something that will seriously curb their potential for real economic disruption and render cap-and-trade a distinctly “business-as-usual” approach to climate change. That’s my fear anyway.

Posted by Jamie Colburn

The Future of Universities

Mark Taylor writes in the NY Times today about how to restructure universities. I agree with much of what he says, especially the point that graduate education as currently practiced is a bad deal for most grad students in the arts and sciences--who receive low pay and, absent a tuition waiver, a mountain of debt, but frequently have no realistic chance of eventually landing tenure-track positions (which was the justification for this apprenticeship model in the old days).

Taylor also points to (familiar) flaws in the institution of tenure, although he does not reckon its benefits or the consequences for free inquiry were it abolished. Likewise, Taylor makes a case for replacing sub-sub-specialization within departments with inter-disciplinarity and project-based organization. Here the basic model is something on the order of a team of superheroes, each with his or her own special skills (e.g., a biologist, a climatologist, a physicist, a guy who shoots laser beams from his eyes) all coming together to solve a problem. That too has advantages, although Taylor does not explain how the individual members of each team are supposed to develop their particular expertise once the departments that teach their specialties have been abolished.

I'd also like to note here how miraculous it is that universities as we know them exist at all. What makes a great university great is primarily the quality of the research performed by its faculty. In principle and in practice, that research has little connection to the quality of teaching, and indeed, there may be a negative correlation, as the very top researchers often receive teaching breaks and, even when they teach a full load, are not necessarily any better than (or even as good as) less luminary instructors, at explaining the underlying material to students. Accordingly, one might think that a prospective student trying to decide whether to attend super-prestigious Great Research University or middle-of-the-pack Liberal Arts College would prefer LAC if the quality of instruction is higher than at GRU (as it may well be). But in fact, the value of the degree from GRU is greater than the degree from LAC (putting aside first-rate liberal arts colleges, whose faculty are drawn from more or less the same pool as those of the research universities), and so it's rational to pick GRU.

So long as there is a positive association between GRU's research faculty quality and the value of the degrees it confers on students, most top students will continue to go to the GRUs of the world and give them piles of money when some of them become wealthy alumni. However, the relationship is fragile; a break in the association could lead to a spiral in which prospective students shop for a higher education based on price and what they expect to learn, rather than prestige of research faculty. And a shock--such as the current recession--could cause that break.

Will that happen? I think probably not right now, partly because the logical place for squeezed families to send their kids is to a state university or college, and they've got tighter budgets than ever right now, while middle-of-the-pack liberal arts colleges are also in a tough spot. So higher education across the board is likely to suffer somewhat in the short run.

The question that remains for the long run--quite apart from the concerns raised by Taylor's essay--is whether there is a future for institutions that combine teaching and research. As someone who lives and works inside (and loves the very idea of) universities, I certainly hope so. I even think I could make the case for the logic of associating a university's research with its value for students (provided substantial attention is paid to teaching.) But there's no guarantee that universities as we know them will survive.

Posted by Mike Dorf

Is Turnabout Fair Play?

On Monday the Supreme Court will hear oral argument in Bobby v. Bies. My colleague John Blume is arguing on behalf of the respondent, who is under a death sentence from the Ohio courts. In addition, a number of my federal courts students have worked on the case under the auspices of the Cornell Law School Death Penalty Project. For those reasons, I have some reason to be less than fully objective and, accordingly, I won't here either make a pitch for an outcome or hazard a prediction.

I would note a peculiarity of the case that will make it an interesting test of some of the Justices' various commitments. Given the procedural complexity of the case, however, doing so will require a bit of background.

Bies was convicted of murder and sentenced to death for the murder of a boy. (As in most such cases, the crime was gruesome.) At his sentencing hearing, Bies's lawyer argued for life imprisonment rather than death partly on the ground that Bies's mental retardation mitigated his culpability. An expert witness testified that Bies was indeed retarded and the Ohio courts bascially accepted that testimony. Nonetheless, they upheld his death sentence because they found that the mitigating force of the mental retardation was outweighed by the various aggravating factors. At the time, the Supreme Court had not yet decided the Atkins case, which held that it is unconstitutional to execute a mentally retarded defendant.

The state concedes that Atkins applies to the Bies case, under a narrow exception to the general rule that federal habeas corpus courts cannot apply "new rules" of constitutional law to free prisoners whose trials and sentencing hearings complied with the rules in existence at the time they occurred. And thus, the federal district court and the 6th Circuit found that Bies could not be excecuted: The earlier proceedings established his mental retardation, and the Double Jeopardy prohibition forbids re-litigation of that issue, while Atkins now renders Bies ineligible for the death penalty. QED.

Not so fast, says the state. The mental retardation finding in the earlier period was made under a supposedly different (pre-Atkins) legal standard, and thus does not establish mental retardation for Atkins purposes. Further, the state argues, as a general matter parties are not bound by adverse findings on single issues (such as mental retardation) where they prevailed on the ultimate issue (such as a death sentence). Thus, the state contends, it should have the chance to prove that Bies is not retarded.

That brings us to the peculiarity of this case. In most federal habeas litigation, and especially in cases involving the death penalty, the state offers reasons why procedural technicalities bar the federal habeas court from reaching the merits. Thus, especially since the passage of the (creepily named) Anti-Terrorism and Effective Death Penalty Act (under Pres. Clinton), there are about a dozen ways a federal habeas petitioner can lose, even if he has a good claim on the merits.

Yet in Bies, it's the state that is arguing that a court (here the Ohio trial court) should be allowed to re-hear the merits (of the mental retardation issue), while it is the prisoner whose lawyers are saying that the state had its chance to prove its case (i.e., lack of mental retardation) and thus should have to accept the consequences.

In the more typical habeas case, the Justices who are unsympathetic to federal habeas peitioners often invoke the importance of "finality" in criminal ajdudication. It will be interesting to see whether that interest moves them at all when invoked by a habeas petitioner himself.

Posted by Mike Dorf

Friday, April 24, 2009

Cross-Ideological Common Ground on Torture and Discrimination, Sort of

Former VP Cheney and others (including a commenter on this blog) have criticized the Obama Administration for releasing the Bush OLC memos authorizing harsh interrogation techniques but redacting information about the supposed effectiveness of waterboarding, etc., as a means of obtaining actionable intelligence. On its face, the criticism is odd because the legal prohibition of torture is a prohibition of effective torture as well as ineffective torture, as even the Bush OLC memos themselves acknowledge. The severity or permanence of injury that some technique does not differ at all based on whether or not it leads to truthful and actionable intelligence or simply leads to the person being interrogating saying whatever he thinks the interrogators want to hear. Thus, it appears that what Cheney and others are saying is: "Whether or not waterboarding was illegal, it was the right thing to do."

That's not an inherently implausible claim. Just about everyone who thinks about the question will recognize that there are circumstances in which the right thing to do (judged by whatever moral standards one has for assessing rightness) is to violate the law--even if the law is generally a good law. Jurisprudence scholars debate whether there is even a prima facie moral duty to obey the law, but even if there is one, surely that duty can sometimes be overcome by other moral duties. It takes an awfully strong commitment to the act/omission distinction to say that it's wrong to torture the terrorist who has hidden a doomsday device. Of course, such scenarios are highly unrealistic, but the point of such "ticking bomb" examples is to show that categorical opposition to torture must be rooted in something besides the claim that it is always and in principle wrong (although there are indeed people who think, on Kantian grounds, that torture is indeed always and in principle wrong, even if the consequences of not torturing are catastrophic).

The difficulty with the foregoing analysis may be that it gives too much credit to VP Cheney and others, who really do seem to be saying something like "if it worked, it's legal." But we can make some sense of even that sort of claim. The argument goes along the lines of the OLC memos and is rooted in the impulse to resolve legal ambiguity in favor of permitting conduct that looks a lot like torture. If you think that the legal prohibition on torture gets in the way of doing things that are morally best, then you will want to construe that prohibition as narrowly as possible. Although I disagree with the premises of this set of arguments, I do understand their structure.

Indeed, the structure is broadly similar to the structure of arguments liberals (who tend to be on the other side of the torture debate) make in other contexts. Consider the issue presented by the New Haven firefighter case currently before the Supreme Court, and race-conscious affirmative action more broadly. Conservatives argue that the constitutional guarantee of "equal protection" and (even more clearly) the statutory prohibition on "discrimination on the basis of race," forbid all race-based affirmative action and that liberals who favor such programs favor them despite the fact that they are unequal and discriminatory. From the conservative viewpoint, in other words, liberals think it is more important to advance their vision of society (e.g., racially integrated fire departments) than to follow the legal requirement of equal protection and the legal prohibition on discrimination.

But from the perspective of (us) liberals, that's mistaken. We say that the meaning of terms like "equal protection" and "discrimination" is sufficiently open-ended to permit race-based affirmative action. Indeed, we even understand such programs as designed to implement the equality and anti-discrimination norms. In other words, we make the analogous move to the one made by the Bush OLC memos: We see and resolve ambiguity to render our understanding of the law consistent with our vision of morality.

To be clear, I'm NOT saying that the moves are equivalent in all respects. I think that the interpretation of "equality" to permit some race-based affirmative action is much more legitimate than the interpretation of "torture" to permit waterboarding. John Yoo and Steve Bradbury would probably draw the opposite conclusion. But my larger point is that the interpretive moves have the same structure.

Posted by Mike Dorf

Thursday, April 23, 2009

Meet the New Dorf on Law, Same as the Old Dorf on Law

Hey there DOL Nation. I have changed the look of Dorf on Law and relocated the URL from to but don't worry: I also wrote a line of code on so that your old bookmarks will still work. However, if you are used to getting the Dorf on Law feed or subscribing by email, your old subscription may no longer work. If it doesn't, just click on the subscription link on the sidebar to the right and re-subscribe. (If signing up for email again, click "posts," then "atom" and then follow the email link) It will take all of about 15 seconds.

Why the change? Two reasons:

1) I had been using external hosting, which meant some occasional downtime. That should be fixed now.

2) Hey, it's got new colors. It's uhm, one louder.

Posted by Mike Dorf

A Few More Thoughts on Local Government

In my post on Tuesday, I discussed the possibility that the current problem of severe local and state government budget crises across the United States might result in a (very positive, in my view) reduction in the number of local governments, with towns and villages forced to join forces as a way to save money. When, for example, two towns with a total of 2500 residents maintain separate police forces, school systems, sewer districts, local governments (executives, legislatures, and judiciaries), and so on, there is an awful lot of wasteful duplication of functions (not to mention nearly unavoidable failures to communicate and coordinate across jurisdictions). In comments on this blog's message board and in off-list emails, some readers have raised issues that are worthy of further discussion, a few of which I will try to address here.

First, as I mentioned in my original post, I am not aware of any estimates of how much money could really be saved by combining services across small towns and mostly-empty counties. I could easily believe that there is not as much money to be found as my original comments suggested. A former student of mine who lives in northern New Jersey offered the following facts and thoughts:
Take Fair Haven, for example. They recently merged police dispatch with another community's which saved FH the cost of part of a part time dispatcher. They might also be able to eliminate a police administrator, but that's about it. Even if that saves $200,000, it is a tiny percentage. Extend this approach to the schools and you end up with a multiplier of a small number.

Also, elected officials in many NJ communities don't make much if any money. FH is governed by a mayor and counsel, none of whom are paid. The county is governed by a Board of Freeholders who each make very little (it might be around $30,000). And the state assembly reps are paid like it is a part time job (maybe $60,000?) and have very limited ability to hire staff. There may be some economies of scale to be gained, but probably not much real savings.
In the aggregate, the numbers could clearly be large or small. It is worth remembering, of course, that even small numbers can add up when multiplied by large enough numbers, and having 99 counties in Iowa suggests that even small savings might add up to some big reductions in spending. Still, 99 times $1 is still only $99; so small numbers might simply add up to small numbers. If it turns out that there is just not that much money to be saved, then the political fight to consolidate would hardly be worth it. I suspect that there are some decent estimates on this question that I have not yet seen, but for now this should be treated as an open question.

Beyond the amount that might be saved, my post also pretty much ignored the benefits that might be gained from having a large number of small, very local government entities. It is certainly fair to point to some of those benefits, such as the certainty that someone who lives down the street will know more about your neighborhood than does someone who lives across the country.

As I suggested in my own comment on the message board, though, the existence of benefits to local-level governance does not make the issue that I raised an either-or proposition. That is, even someone (like me) who sees that there are benefits to decisions being made at the local level would not necessarily think it is a bad idea to have a smaller number of slightly larger local governments than we currently have. If we were starting from scratch and asking ourselves how to organize the states at the sub-state level of governance, it seems highly unlikely that we would choose numbers of localities and counties as large as exist today. Eight-eight counties in Ohio? Separate governments for side-by-side bedroom communities near Toledo? I am not, in other words, talking about eliminating local governments but rather how big local governments should be. The best direction for change seems fairly clear-cut, starting from where we are now.

Beyond that, it is also worth noting two further points. First, local decision-making can be done by state- and federal-level agencies. U.S. attorneys and the FBI maintain local offices, for example, allowing people employed by a non-local government to live locally but to take advantage of being part of governments with much better resources that can be shared efficiently. This can, of course, go too far in the other direction, with the burdens of coordination overwhelming the other economies that might come from statewide or national organizations. Again, however, that is an empirical question to which there is no obvious answer across the board.

Second, local decision-making sometimes has serious downsides. The term "local justice" is almost always used ironically to describe the inbred nature of decision making among small groups, with outsiders being disadvantaged and with local elites able to hold a tight grip on power. When I was living in Rhinebeck, NY, for example, I wanted to pursue a small contract claim against my employer. I learned that the local magistrate was employed as a maintenance man for my employer, and I was therefore advised not to bother bringing the case! Diversity jurisdiction in federal civil procedure is often justified in part precisely by the concern that local interests will taint the judicial process. Moreover, local police forces and sheriff's offices have been known to become arms of intimidation against outsiders, and local bosses can use their power over city services to make themselves essentially above the law. Again, this can happen at every level of government; but the smaller the number of people, the easier it can be to lock down power.

In short, there certainly are good things about preventing too much political power from rising up through the federal system. That is quite different, however, from saying that we should not whittle down the number of local governments in this country. There may be no precise way to determine the ideal number or size of localities and counties, but if the number of dollars at stake is at all significant, then it seems that we are currently uncomfortably above any plausible right answer to the question.

-- Posted by Neil H. Buchanan

Tuesday, April 21, 2009

Must the U.S. Extradite Alleged Torturers if they are not Prosecuted Domestically?

In my latest FindLaw column (available here some time Wednesday afternoon), I argue that if the Obama Administration ultimately decides not to prosecute anybody for committing torture during the Bush years, the President ought to consider pardoning all those involved---and simultaneously explaining that the pardons are meant to acknowledge rather than deny wrongdoing. Here I want to raise a related concern.

Under Article 7 of the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signatories are obligated either to extradite violators or to submit their cases to the "competent authorities" to consider bringing charges. These competent authorities, the provision goes on, "shall take their decision in the same manner as in the case off any ordinary offence of a serious nature under the law of that State." President Obama or his aides seem to be keenly aware of that provision, because earlier today he told reporters that he would leave the decision whether to prosecute the architects of the Bush policy to the Attorney General.

Suppose, however, that the Justice Department decides not to seek prosecutions for a combination of two sorts of reasons I discuss in my column: 1) the likely difficulty of obtaining convictions; and 2) the harm that lengthy trials would do to the country. Would that count as a "decision in the same manner as in the case off any ordinary offence of a serious nature?" It's hard to know because there are no exact parallels in the context of conventional crimes.

If a decision not to prosecute (with or without an accompanying decision to grant pardons) does not satisfy Article 7, then the U.S. would be under an obligation to extradite suspects sought by other countries or international authorities. That obligation would not be domestically enforceable, however, because the Senate ratification off the UN Convention includes a reservation specifying that it will not be treated as self-executing, and no federal statute implements the prosecute-or-extradite imperative of Article 7.

Still, even a non-self-executing treaty creates inter-sovereign duties on the United States. It would be quite awkward for a President who has made renewed multilateral cooperation a centerpiece of his foreign policy to breach an international human rights treaty in such a high-profile case.

Posted by Mike Dorf

Big Changes in a Crisis: State and Local Government

Late this past December, I inaugurated what I hoped would be a series of posts discussing some large changes that we could make in various areas of the economy and society, changes that might only be possible in a time of severe crisis. I did not realize it at the time, but the basic idea was captured by Rahm Emanuel, soon to be the chief of staff of the Obama White House, in his pithy observation that "you never want a serious crisis to go to waste." Some interests are so entrenched that our only hope for ever dislodging them is to ride the wave of an era-defining change in attitudes and expectations.

After my initial promise to write that series of posts, I wrote one post in which I discussed changing the automobile industry in the United States to be more environmentally responsible and customer-friendly. I then let the "big changes in a crisis" series lapse, in part because of the whirl of news and events surrounding the new administration, but also in large measure because it seemed that the Obama administration was taking to heart Emanuel's suggestion to think big. If anything, in fact, President Obama has been criticized for thinking too big about too many things, criticism that might tend to prove that the current crisis is not so severe as to have shaken loose the do-nothing tendencies in the political culture. Even some of his medium-sized (but very good) ideas, such as his plan to limit the tax deductibility of various items for higher-income taxpayers (which I discussed here and here), have already been beaten into submission.

Moreover, there are some big ideas that become less desirable (or politically plausible) during a big crisis. My strong preference that the country move away from home ownership and toward stable rentals of both apartments and houses (discussed here and in posts linked therein) is rightly not on the table, given that the collapse of home-building is one of the major reasons that the economy tanked last year and that there is no plausible substitute for a rebound in the housing industry as a necessary part of bringing the economy back to health. (Disclosure: My mother's father and brother were home builders, so I was partly reared on concrete blocks and 2x4's.) Changing the mix of owning and renting is an important project that could bring major benefits to middle-income families, but this must be a slow process that begins during relative prosperity.

Even so, it continues to be important to think about what can be done during a time that uniquely calls out for big thinking. In a guest editorial in yesterday's New York Times, the journalist Tom Brokaw suggests that it is time to re-think the number and organization of sub-state governments. (Brokaw is no more qualified to opine on this subject than any reasonably well-informed person, but why question the parentage of a good idea?) Brokaw suggests, in a nutshell, that there are simply too many county and municipal governments and school districts in this country and that it is time to combine them in a way that could save huge amounts of money. (He does not offer any numbers regarding plausible savings, and I would welcome comments pointing toward any estimates that have been made along these lines.) Doing so now might be possible because the states are having even more severe financial shortfalls than they usually face during an economic downturn, so that the same legislators who are reconsidering their previous embrace of get-tough prison expansions -- and even the death penalty -- on financial grounds might finally decide that it makes no sense to keep so many small-town mayors, police chiefs, and school superintendants on the job.

The problem of too many local governments is a classic example of simple institutional inertia. As the country grew, towns sprouted, and local governance was the norm. Brokaw talks about Iowa's 99 counties and the absurdity of the regional university system in his native South Dakota. Growing up in Ohio, I knew that there were 88 counties, most of which were less populated than my high school home room. When I lived in New Jersey several years ago, one of the most perplexing questions was why the state was continually in a budgetary crisis even while it was the most heavily taxed state in the country (and even while its highly educated and wealthy population should have been able to easily outweigh its urban poor in a budgetary sense).

True, New Jersey is legendary in its tales (and reality) of political corruption; but other states have plenty of corruption as well. What makes New Jersey's government more expensive to run than, say, Illinois' or Texas' or New York's? One explanation was that New Jersey supports more local governments and school districts than any other state. Even after living there for a couple of years, I was constantly amazed to discover on a very regular basis yet another town nearby of which I had never been aware. It was something of a miracle that my town, South Orange, shared a high school with its neighbor Maplewood, since there seemed to be a state-wide allergy to combining any local services.

Brokaw points out that New York State not only has its own version of this problem but that a bipartisan commission has already offered a list of suggestions to modernize sub-state governance and thus to both save money and rationalize an absurdly scattered and inefficient system. Given that New York is one of the states with an especially acute fiscal crisis (driven by its dependence on the financial sector, which is obviously one of the most depressed parts of the U.S. economy), one would think that politicians there would be especially open to big changes that could save money. Yet the commission's recommendations apparently have little chance of being adopted.

Why would this be so? One possibility is that state-level politicians were once local politicians, which inclines them toward protecting their roots and the friends they left behind. There ought to be at least some element, however, of embarrassment and contempt among those who have "made it big" for their grimy past, which might counterbalance the desire to preserve the old ways with a desire to prove that one is now above all that. A more likely explanation is that state-level office is not far enough away from the local and county levels to allow state legislatures to act independently. The same people who keep a state legislator in office have interests in county commissions and town councils. (Another explanation is that one should not cut jobs, even duplicative local government jobs, during a recession. That, however, is a reason to phase out the jobs, not an excuse to do nothing.)

This should not be a reason to despair. Any political system, public or private, is going to be filled with people who resist change. (See any law school faculty.) The longer this crisis continues, the more hope there is that it will result in at least some reform in our wasteful and antiquated systems of local government. That is not a reason to cheer on the economic decline, of course, but it gives us one more way to direct our energies toward improving our society going forward.

-- Posted by Neil H. Buchanan

Sunday, April 19, 2009

Roxana Saberi and Geopolitics

The conviction and sentencing of American (and Iranian) citizen Roxana Saberi after a secret trial is an outrage for which, of course, the Iranian government bears full responsibility. That said, the latest news about Saberi's case raises at least two issues connected to U.S. policy.

First, there was the bizarre news that Iranian President Mahmoud Ahmadinejad had sent a letter to the prosecution urging that Saberi be given a fair trial. It's hard to know whether this is even true, or what it would mean for Ahmadinejad to request a fair trial. It's also possible that the letter was a publicity stunt aimed at Iranian domestic opinion. Ahmadinejad faces a challenge from, among others, "reformer" and former President Mohammad Khatami. ("Reformer" is in quotation marks because it's practically part of Khatami's name.) Or perhaps instead (or in addition), this was a publicity stunt aimed at the U.S. Ahmadinejad may have calculated that his political interests lie in responding positively to the Obama Administration's diplomactic overtures. Holding an American journalist for 7 years on bogus espionage charges will undoubtedly make it more difficult for Ahmadinejad or his successor to do so, as it signals that the mullahs who hold real power in Iran aren't interested in warmer relations with us.

Second, the ability of the U.S. to rally international public opinion against Iran may well be undermined by U.S. detainee policies. The military commissions and combatant status review tribunals for Gitmo detainees almost certainly provided more procedural fairness than the secret trial of Roxana Saberi did. Still, having sacrificed the moral high ground on this issue, we cannot credibly describe the Saberi secret trial to the world as the outrage that it is. To be clear, even had we not undermined our moral authority in this way, it's quite possible that the Iranians would have been equally unmoved by our objections. But at least we could have made them more forcefully.

Posted by Mike Dorf

Friday, April 17, 2009

What is a Hard Case for Justice Thomas?

As noted in a NY Times article, Justice Thomas made a rare public appearance recently. The article paints an interesting picture of the Justice, who describes himself as sometimes morose. Putting aside such issues of temperament and mood, here I want to focus on what Justice Thomas says about judging. The article concludes as follows:
“This job is easy for people who’ve never done it,” he said later. “What I have found in this job is they know more about it than I do, especially if they have the title ‘law professor.’ ”
Prima facie, that's a fair point. It's generally easier to criticize someone else's decisions than to make those decisions yourself. Thus, what Justice Thomas appears to be saying is that the burdens of responsibility make decision making harder. That's almost certainly right.

And yet, subject to some critical scrutiny, the point would seem to undermine Justice Thomas's philosophy of judging. More than any other Justice in recent history, Justice Thomas is committed to the separation of law and morality. Judges, in his view, should interpret authoritative texts (such as statutes and the Constitution) to mean what the words were generally understood to mean at the time of their enactment. This approach--generally now called "public meaning originalism"--typically carries with it the further postulate that judges who resort to moral reasoning are illegitimately imposing their own values on the public.

To be sure, not all public meaning originalists say that. Some "neo-originalists" think that the semantic content of the text is very frequently indeterminate, and that when it is, judges are authorized to make judgments based upon, among other things, moral considerations. But Justice Thomas is not such a neo-originalist. He is much more of an "old school" originalist who thinks that the original meaning of the text is almost always all one needs to resolve legal questions. Certainly Justice Thomas has both authored and signed onto opinions criticizing his colleagues for injecting moral considerations into legal analysis in circumstances where those colleagues no doubt thought the text a mere starting point.

Why then would Justice Thomas feel burdened by the responsibilities of making a decision? We can well imagine that even for an old school originalist, there are hard cases. But for someone with Justice Thomas's professed views, a hard case is one in which the judge needs to do a whole lot of hard work to try to resolve a historical linguistic question as best he can. He may need to burn the midnight oil reading 18th century newspapers, but he's not going to lose sleep agonizing over whether he is doing the right thing in any moral sense.

And yet, Justice Thomas appeared to say precisely that cases are hard because they pose hard issues about what the right thing to do is, all things considered. In a statement that is otherwise admirable for his recognition of the importance of church-state separation, Justice Thomas answered a question as follows:
“There are some cases that will drive you to your knees,” he added. “In those moments you ask for strength and wisdom to have the right answer and the courage to stand up for it. Beyond that, it would be illegitimate, I think, and a violation of my oath to incorporate my religious beliefs into the decision-making process.”
I suppose it's possible to be driven to your knees about whether to credit Alexander Hamilton or James Wilson as better expressing the original understanding about state sovereign immunity, but the much more natural way of reading this answer is that Justice Thomas is saying that he seeks the wisdom, strength and courage to resolve cases in ways that are not simply a matter of linguistic or historical fidelity. He appears to be saying, both here and in his comments about the burdens of judgment, that he actually worries about doing what is right. If so, it's too bad he feels the need to pretend otherwise in other settings.

Posted by Mike Dorf

Thursday, April 16, 2009

The Third Dimension

Now that our taxes are behind us for another year, let's take a break and talk about movies:

Almost a year and a half ago, in "Tech for Tech's Sake," I described my reactions after seeing two recent three-dimensional (3D) films: "Beowulf" and a re-release of "A Nightmare Before Christmas." Although the two movies used very different animation techniques, each was heavily marketed for its "3D experience." For both movies, my reaction was that the technology was little more than a gimmick and that the use of 3D actually detracted from the viewing experience.

This was especially surprising considering that 3D films have been around for over 50 years. Documentaries about the 1950's regularly include scenes of movie audiences wearing the telltale red-and-blue glasses, screaming and leaning backward when something on screen seemed to be coming toward them. As I mentioned in my earlier post, this was most memorably captured thirty years ago by the wonderful "Second City Television" series, which ran a variety of 3D spoofs (listed here, apparently not available on YouTube) with such titles as "Monster Chiller Horror Theatre: Dr Tongue's 3D House of Stewardesses," and "Monster Chiller Horror Theatre: Dr Tongue's Evil House of Wax." The running gag was that the only difference between a 3D movie and a 2D movie was that the actors would pick up props and move them dramatically toward the camera (often while making scary noises).

The 3D fad ended a long time ago, and the big breakthroughs in film technology since then have involved special effects and film clarity. Even so, 3D currently is seeing a comeback, perhaps in part because it is one of the few excuses that exhibitors have found to justify premium ticket prices. Because I am always willing to give things a second (and third and fourth) chance, I recently saw "Monsters vs. Aliens" in 3D at a state-of-the-art theater in suburban DC. Notably, the previews before the film were all for upcoming 3D movies; but also notably, the previews uniformly involved showing objects flying toward the camera to make the audience lean back and scream. (Just like grandma and grandpa did when they were courtin' in 1955!!) The economic downturn at least coincides with what appears to be a desperate attempt to get people to pay extra to see something that used to by called "real keen."

To be clear, "Monsters vs. Aliens" is a really fun and funny movie. It is exactly the kind of movie that is great for both adults and kids, with plenty of Looney Tunes-esque jokes that only the adults will understand. In addition, the 3D technology itself is now better than it was even a year and a half ago, with the objects on screen seeming more rounded than before. (The two films from 2007 seemed to involve flat objects set at varying distances from the viewer.) We are nowhere near the point where watching a 3D film seems any more real than watching a traditional film -- which, when done even reasonably well, has always allowed the viewer to suspend disbelief and immerse herself in the world on screen -- but this is a step forward.

Still, it is difficult to see how the current raft of 3D movies will not soon be seen in the same jaded light as SCTV's "3D House of Slavechicks." The technology is still a distraction rather than an enhancement. The introduction of talkies completely revolutionized movies, and color film opened up creative possibilities (including the choice not to film in color) that filmmakers continue to explore. (One of the most startling uses of color in an otherwise black-and-white film is in 1945's "The Picture of Dorian Gray." See it!) Creative people might ultimately find a way to add 3D technology to the filmmaker's bag of magic tricks (and to do so without requiring audiences to wear silly glasses), but more than fifty years on, it is still little more than a carnival show.

-- Posted by Neil H. Buchanan

Wednesday, April 15, 2009

Contraception and Abortion

In my FindLaw column today, I discuss a recent speech by a spokesperson for Feminists For Life (FFL), in which she said that FFL does not take a position on contraception (because some members favor it and some oppose). I criticize FFL's failure to take a position and argue that especially for an organization that is categorically opposed to all abortions yet prioritizes feminism, it is critical to support women's access to contraception.

In this post, I would like to explore an argument that some people have made about one form of contraception: birth-control pills. The argument has several components. First, birth-control pills have side effects that its makers did not initially fully appreciate and thereby gave women the illusion that they could "harmlessly" avoid the risk of pregnancy. Second, birth-control pills provide protection against one risk of sex (pregnancy) without doing anything to protect against sexually transmitted diseases (STD's). As a result, some have suggested, various S.T.D.'s have proliferated to a point at which virtually everyone above a certain age is a carrier. And third, birth-control pills suppress women's natural hormonal cycles, which has the consequence of obscuring an important physiological basis for selecting a mate: pheromones (which, among other things, attract women to men with whom they are unlikely to be close genetic relations).

These arguments, to my mind, are important in illustrating unanticipated effects of medicine. While we "treat" one risk or illness, we must remain mindful of the possibility that we thereby create more problems than we solve. This phenomenon, however, is hardly unique to birth-control pills. Indeed, another hormone treatment -- hormone replacement therapy, offered to relieve symptoms of menopause and assist in fortifying menopausal women's bone density -- has proved to pose enough health risks to motivate many doctors to recommend strongly against HRT. Other drugs (including, to continue on the theme of women, thalidomide) have turned out to be devastating in their unanticipated impact.

The introduction of any new drug is an experiment, and it is impossible to know in advance that costs will not ultimately outweigh benefits. To be sure, one might believe that, unlike various other medications, birth control pills confer no benefits worth having. That belief, in turn, rests on the view that there is not a good reason to try to separate sex from procreation, a view that is part of religious dogma but that is not otherwise especially appealing (as I argue more directly in my column).

Furthermore, even if we conclude, in retrospect, that the birth-control pill was, on net, a negative development, (a far-from-uncontroversial proposition), this does not have any necessary implications for other forms of contraception. Condoms, for example, do protect against sexually transmitted diseases (as well as pregnancy), do not appear to have untoward medical side effects, and leave a woman's hormonal cycles alone. The same might be true for other methods, still under development. And finally, for a couple that is truly monogamous but does not want children, various contraception methods that might not suit relative strangers (such as diaphragms, intra-uterine devices, and sponges) become far more attractive. And it bears emphasizing -- for those who favor abstinence -- that even married couples having exclusive sexual relations within their marriage might want, on occasion, to avoid having more children. It seems neither feminist nor particularly wise for a group that opposes abortion to have nothing to offer such people.

Posted by Sherry Colb

Orange Pekoe, Earl Grey, Cubby Wubby Womb Room* . . .

The talk of American politics this week is the so-called "tea parties" or "tea bagging" of politicians. There is much to be said on the topic, and everyone is having some fun. The obvious reference to very non-conservative sexual practices is one place to start, for those whose humorous tastes stopped developing in the 10th grade (not that there's anything wrong with that). Others have pointed out that the protests are anything but spontaneous uprisings of regular folks but are, instead, heavily financed by the usual suspects on the ideological right.

While the protests seem to be about a miasma of issues ranging from corporate accounting to simply opposing everything about Barack Obama (his citizenship, his religion, his Obama-ness), the gist of the tea party movement is, obviously, about opposition to taxes. As today is the date on which tax returns must be filed (unless you fill out an incredibly simple form for an automatic six-month extension to file), and as taxes are my academic beat, I feel that I should weigh in on this phenomenon. But what is there to say about a phenomenon that appears to be a combination of cynical manipulation of public unease and hard-core anti-government dogma?

Surely, it does little good to point out, as Bruce Bartlett (a former Reagan and Bush I tax advisor) has, that federal taxes in the U.S. are lower now than they have been at any time since 1950 or that the U.S. has a much lower aggregate tax rate than most other countries in the world, ranking 26th out of 30 OECD countries. (We have higher taxes than Japan, Korea, Turkey, and Mexico, which together hardly make a prima facie case that low taxes equal economic prosperity.) Taxes can always be lower than they are, after all; and we have a rump opposition party that has staked its future on the idea that the answer to every problem is to reduce taxes.

It does not even seem to matter that the protesters' evocations of the American Revolution clearly miss the point. The Declaration of Independence, as I pointed out in a TaxProf guest post in 2005, contains exactly one reference to taxes: the King had allowed Parliament to "impos[e] Taxes on us without our Consent." In other words, the revolutionaries really were upset about taxation without representation, not taxation itself. Even so, some protesters at these events are carrying signs with slogans such as "Taxation With Representation Sucks, Too!" At least they are aware of the historical inaccuracy.

What is interesting and less widely known, however, is that the protesters' use of the tea party meme is based on a fundamental misunderstanding of American history. As David Cay Johnston, the Pulitzer Prize-winning author, put it: "[A] tax favor for the friends of King George prompted the Boston Tea Party." That's right, the Boston Tea Party "was a protest against a tax exemption and the creation of a royal monopoly. The Constitution grants Congress the power to tax in a broad way because of the experiences of the colonists with the crown's use of tax favors for political purposes." (The latter quotation can be found here, in the 10th comment down, which Johnston wrote in response to readers' comments.) In other words, the Boston Tea Party was not even a protest against taxation without representation. It was a protest against a tax cut for a politically favored special interest.

Not that any of this will change anyone's mind. We seem to have reached the point where taxes are for too many people simply a rorschach test -- a quantitative subject about which facts apparently no longer matter, and all we have to do is wish that something is true to make it so. Fortunately, notwithstanding all of the media attention that this silliness is attracting, the grown-ups finally seem to be running things again. I certainly do not agree with everything that our new leaders are doing, but at least they are living in the real world.

* Cubby Wubby Womb Room tea is a fictional tea blend that was mentioned in "So I Married an Axe Murderer," an under-appreciated film from Mike Myers -- back when he was still funny.

-- Posted by Neil H. Buchanan

Tuesday, April 14, 2009

Symbols in the Same-Sex Marriage Debate

As the fight over same-sex marriage evolves, we can note two of its current features:

1) Each side will accuse the other of wasting time on a divisive social issue when there are more immediate and pressing problems for government to solve. Except in the four states in which same-sex marriage is already legal, this issue would seem to favor the social conservatives, since it's the liberalizers who aim to change the status quo. But there's an asymmetry that cuts in the other direction: Pro-same-sex-marriage political activists who are actually gay have a great deal more at stake in this debate than do anti-same-sex marriage political activists (most of whom presumably aren't gay). For the people in the political middle and thus potentially in play, it's the anti's on this issue who will tend to look like they're getting all worked up over something that is almost purely symbolic. Sure, most anti's claim that they're in it to defend traditional marriage, but they can't mean this literally (although some do purport to mean this literally). What the anti's mean is that their heterosexual marriages will be cheapened somehow if forced under the same linguistic umbrella as same-sex marriage. Even if we count that as an actual harm, it's hard to see how it counts for very much (by contrast with economic harm or, for that matter, harm to fetuses from abortion, an issue where the stakes for social conservatives are more real).

A complicating factor in all of this is that the stakes for the pro-same-sex marriage side are largely symbolic in states that recognize civil unions but not marriages, or at least so they appear: In reality, use of the word "marriage" has important practical (and not just symbolic) advantages (as explored here). But, if the public in general doesn't realize the practical difference between marriage and civil unions that nominally confer the same benefits, then there is a substantial chance that the pro side too will be perceived as getting all worked up over symbols--at least in states (like California) where the status quo is civil unions.

2) Defenders of the Iowa Supreme Court ruling have started talking about the rule of law rather than same-sex marriage. Here's an excerpt from a recent NY Times story describing the position of Iowa Governor Chet Culver:
Mr. Culver, who says he personally believes marriage should be between a man and a woman, said he was unlikely to support a constitutional amendment. “After careful consideration and a thorough reading of the court’s decision,” he said, “I am reluctant to support amending the Iowa Constitution to add a provision that our Supreme Court has said is unlawful and discriminatory.”
If Gov. Culver is saying that he found the Iowa Supreme Court's opinion persuasive, that makes sense. We can even make sense of the statement if he means something like "I'm not persuaded but these Justices know more than I do about this sort of thing, and so I'll defer to their judgment in a reasonably close case." But Culver's language also could be read much more broadly, so as to echo the views of those who opposed Prop 8 in California by saying things like "The state Constitution shouldn't be amended to take away rights." That's nonsense. The Thirteenth Amendment to the U.S. Constitution took away the rights of slaveholders to hold property in human beings---and quite rightly. Ultimately, rights can and should be taken away if they're the wrong rights.

Now I happen to think that there should be a right to same-sex marriage, but I'm not a politician worried about re-election. For politicians who either favor or don't oppose same-sex marriage, it's much safer simply to say that this is a tough enough question on which the courts' considered judgment should be respected. That's what Presidential candidate Michael Dukakis said in 1988 when challenged about his veto of a bill that required Massachusetts schoolteachers to lead the Pledge of Allegiance. Realizing the unpopularity of his position, Dukakis said that his hands were tied by an advisory opinion of the Massachusetts Supreme Judicial Court. (Story, complete with red-baiting by George H. W. Bush, here.) We know how well that worked out for Dukakis.

Posted by Mike Dorf

Sunday, April 12, 2009

So You Want to be a Federal Appeals Court Judge?

The Legal Times recently broke the news that SDNY Judge (and my former Columbia Law School colleague and all-around good guy) Jerry Lynch noted in his response to the Senate Judiciary Committee questionnaire regarding his nomination to the 2nd Circuit that he did not seek out a promotion; rather, Sen. Schumer asked Lynch whether he was interested. I suppose that's news, although it hardly amounts to juicy gossip. There is something a bit off-putting about the customary practice as described in the LT story, whereby potential candidates for circuit clerkships are supposed to promote themselves to sponsoring Senators, and so Lynch scores a few points for modesty, but only a few: Surely he would have been on the short list for a 2nd Circuit vacancy in any event; he's one of the youngest Democratic appointees on the SDNY, with both prosecutorial and academic credentials from his pre-judicial career, and has presided over some high-profile cases.

Perhaps more newsworthy than which of Pres. Obama's initial batch of nominees asked to be considered for the job is the questionnaire itself. The file of Judge Lynch's questionnaire on the Legal Times website was corrupted (according to my computer) and in any event very large, but I'm less interested in the answers than in the questions, which I got from the Senate Judiciary Committee's website, posting the questionnaire reply of David Hamilton, currently a federal district judge in the Southern District of Indiana. President Obama has nominated Judge Hamilton to the 7th Circuit. Here I'll note a few observations:

1) The questionnaire is quite burdensome for any reasonably accomplished person---i.e., any likely nominee---to fill out. For no apparent reason, it asks for 4 copies of everything, including a text, transcript or notes of every speech ever given (or summaries if no notes were used). I suppose we should be glad that the Judiciary Committee is trying to save money on photocopying, but for nominees already holding judgeships, this simply transfers the costs of photocopying from one branch of the government to another.

2) More burdensome than the photocopying, of course, is the actual substance, including summaries of the 10 most important cases decided, 10 most important cases litigated, and much more. It seems unlikely that a federal district judge would actually write these summaries in the first instance anyway, so what the Judiciary Committee is really doing is offloading its research from its own staff to law clerks, or, in the case of private practice lawyers, associates. For academics, perhaps student research assistants? The same sorts of questions are asked of executive branch nominees, so we might ask Elena Kagan and Dawn Johnsen whether they had help filling out their questionnaires.

3) Whether or not nominees receive assistance from underlings in filling out their questionnaires, they will undoubtedly fill them out in a way that is designed to make themselves look good, which for confirmation purposes means: public-spirited, moderate, and bland. A district judge nominated for a circuit court judgeship who ruled, say, that the death penalty is cruel and unusual punishment in all cases, or that the Establishment Clause bars the recitation of the Pledge of Allegiance with the words "under God," couldn't hide such decisions as not making the top 10, but of course those Senators and interest groups likely to be troubled by such decisions would surely find them even absent the questionnaire. So what’s the point of asking the nominee to fill out the questionnaire?

4) Because both supporters and opponents of any particular nominee have easy access to Google, YouTube and WestLaw, it’s hard to imagine that the questionnaire is designed to call attention to matters the Judiciary Committee wouldn’t otherwise discover on its own. Rather, a better explanation is that it’s designed to make nominees themselves think twice. A prospective federal judge when asked to list all organizations of which he has ever been a member will realize that writing “NAMBLA” on the questionnaire will not only cost him the judgeship but will be more broadly humiliating, and will withdraw before things get out of hand.

5) That’s my best hypothesis anyway. Critics who want to say that the similar internal executive branch process didn’t work to screen out problems for Tim Geithner et al might want to reflect on what would have happened if, instead of having failed to pay some taxes, various of the President’s nominees had given speeches praising Hitler. Or, on second thought, maybe even that wouldn’t matter if the nominee were otherwise acceptable.

Posted by Mike Dorf

Friday, April 10, 2009

Some Bologna About Academic Freedom

Consider the recent news that three American states (Indiana, Minnesota and Utah) are undertaking pilot programs to standardize university curricula in particular majors. The programs are of a piece with the so-called "Bologna Process" in Europe, which aims to create comparable standards across much of Europe, so that prospective employers wishing to hire, for example, a chemical engineer, will have some assurance of what a degree in chemical engineering means. (Presumably "bologna" lacks its American idiomatic meaning in Europe; it's also worth noting that the University of Bologna is the oldest continuously degree-granting university in the world, so that sophomoric jokes aside, "Bologna Process" is quite an apt name.)

Predictably, Bologna-like programs have led to the expression of concerns about academic freedom by the American Association of University Professors (AAUP), whose president was quoted (in the story linked above) as saying that
if you’re teaching history of physics and for you it becomes central to teach the development of the atomic bomb, it may be difficult to shape your course in a way that is completely understandable to history-of-physics courses elsewhere. Being able to decide how you’re going to shape and weight your course is central to academic freedom.
Is that right? Critics of academic freedom think not. For example, one leading voice, Stanley Fish, sometimes writes as though he thinks that academic freedom does not include any classroom freedom, although much of his argument rests on ridiculing professors who don't teach the assigned course at all. That's good fun, to be sure, but it hardly follows from the fact that a university can insist that a course called "history of physics" include instruction in the history of physics, that a university can also insist that a faculty member teaching the history of physics refrain from any discussion of the connections (that faculty member sees) between the development of weapons and the development of science.

Part of the confusion arises because academic freedom is best understood as having two dimensions. First, there is the question of where academic freedom can be exercised. Most defenses of academic freedom put the academic's research according to the standards of the discipline at the core, and then also protect academics to some extent in their teaching (subject to reasonable requirements of curricular coverage) as well as against firing for statements made wholly outside their professional work. Thus, it would generally be considered a breach of academic freedom to fire an otherwise excellent biology professor because she spoke (on her own time) at an anti-war rally.

There is also a second dimension, concerning the body of law that protects academic freedom. Typically, that is contract law and, for professors at state universities, the First Amendment. Fish rightly notes that strictly as a matter of contract, freedom to teach extends only as far as the professor's contract allows. A private university that strictly conditioned employment as a history professor on use of a particular textbook would not be in breach of contract for firing a professor who insisted on using a different textbook.

But so what? This only shows that contract law provides very weak protection for academic freedom. A private university would also not be in breach of contract for firing a professor for violating the terms of her contract in her research, even if the research were otherwise an exercise of what everyone deems well within the bounds of professional standards.

The real problem with Fish's analysis is that he makes a category error. The legal protection that contract law affords university faculty is limited by the terms of contracts, but the normative concept of academic freedom is broader. As the AAUP's 1915 statement on academic freedom puts the point, university faculty members
are the appointees, but not in any proper sense the employees, of the [university trustees]. For, once appointed, the scholar has professional functions to perform in which the appointing authorities have neither competency nor moral right to intervene. The responsibility of the university teacher is primarily to the public itself, and to the judgment of his own profession; and while, with respect to certain external conditions of his vocation, he accepts a responsibility to the authorities of the institution in which he serves, in the essentials of his professional activity his duty is to the wider public to which the institution itself is morally amenable. So far as the university teacher’s independence of thought and utterance is concerned—though not in other regards—the relationship of professor to trustees may be compared to that between judges of the federal courts and the executive who appoints them. University teachers should be understood to be, with respect to the conclusions reached and expressed by them, no more subject to the control of the trustees, than are judges subject to the control of the president, with respect to their decisions . . . .

The extent to which the First Amendment protects the foregoing conception of academic freedom for faculty at state universities is an open question. So too, one can legitimately disagree with the normative vision of the 1915 statement on its own terms. Just as one might think that, on balance, life tenure for federal judges gives them independence at too high a cost to democracy, one might think that on balance, the costs of academic freedom outweigh the benefits. But those are at least critiques of the norm of academic freedom as such. Arguments like those put forward by Fish---contract law only protects the terms of a contract---wholly miss the point made by champions of academic freedom, which is a point about what the terms of the contract should be.

Posted by Mike Dorf

Thursday, April 09, 2009

All Those Trillions Must Mean Something, Right?!

Earlier this week, I discussed the meaninglessness of the gross federal debt as a measure of the U.S. government's fiscal position. I pointed out that of the current debt of roughly $11 trillion, about $5 trillion of that should not count as government debt because it is "intragovernmental holdings" of debt, accounting entries that keep track of what one agency of government owes another, not what the government owes its creditors. Almost all of the intragovernmental debt represents the value of Treasury securities held in the Social Security Trust Fund, which is currently growing by about $140-150 billion per year because Social Security taxes currently exceed benefits paid -- that is, the Social Security system is running a huge surplus.

I thought that at least that claim was uncontroversial, because the preference for using net debt rather than gross debt is bipartisan and essentially unchallenged. Earlier today, however, I came across the website for a recent PBS Frontline Documentary, "Ten Trillion and Counting," which interviewed a number of economists who are known to argue that current U.S. fiscal policy is unsustainable and which generally takes a sky-is-falling attitude toward the subject of government debt.

Since the title of the program clearly referred to the gross measure of federal debt, I was pleased to see that an economist at the Office of Management and Budget had sent a letter to the Frontline producers correcting their error. To their credit, the producers posted the letter on the website. Unfortunately, they also posted a response in which they announced that they "nonetheless stand by our decision to highlight what we consider to be the true dimensions of the problem by using the gross debt figure of $10 trillion -- now more than $11 trillion -- and counting." They were wrong to dig in their heels, and their unwillingness to change their minds provides an insight into the nature of the distorted public debate about the national debt.

The OMB economist, Thomas Gavin, pointed out that "[m]ost economists and budget analysts use debt held by the public -- and not gross debt -- as the most meaningful measure of the government's current fiscal position. This is a point of wide agreement among analysts, across political parties. ... And, this is a (perhaps rare) point on which this Administration agrees with the prior one." Gavin specifically addresses the significance of the debt held by the Social Security trust funds:
You might think that gross debt is a superior measure since intra-governmental debt is, in part, owed to the Social Security trust fund -- and, so, it might be thought to indirectly capture the federal government's obligations to future Social Security beneficiaries. But, this is not the way to do so. If you're interested in measuring the federal government's financial position going into the future, you have to take into account not just liabilities but also the federal government's main asset going forward -- namely, future tax revenues.
This is exactly right. Put simply, the IOU's in the trust funds represent the amount of money that the Social Security system will ultimately be able to demand from the Treasury when annual benefits exceed annual revenues (starting in about ten years). If Social Security ultimately needs to cash in all of those IOU's, it will be because future benefits will in the aggregate exceed future revenues by $5 trillion plus the total surpluses that we build up over the next decade. Gavin's point is that whether or not we tap out all of the IOU's depends on whether future tax revenues will fall short of future benefits and by how much. Frontline's producers respond to Gavin's argument essentially by ignoring it:
[I]ntra-governmental debt represents the future promises we have made. Due to the retirement of the baby boomers and rising health care costs, under some projections Medicare and Social Security will run out of money. If this happens, the trust funds for those programs will have to start cashing in those I.O.U.s, and to pay them the government will need to borrow more from the public. Or it could raise taxes to cover the shortfall, or it could make cuts to the programs to make them less expensive. If our future economy grows more robustly than expected, it will be easier to pay for these commitments, but the intragovernmental debt is not simply going to evaporate.
Actually, intragovernmental debt might indeed evaporate, at least inasmuch as it might never become a debt that must be paid. If, as one forecasting scenario used by the Social Security Trustees predicts, we will never tap out the trust funds, then those IOU's will never be cashed in. Future taxes will then pay for future benefits going forward, and there will be no need to honor the IOU's in the Trust Fund. This could also happen if -- as President Obama has suggested (and which I oppose for different reasons) -- benefits are cut and taxes raised such that the trust funds are not depleted even under more pessimistic predictions. In that case, by the way, workers today will have overpaid their Social Security taxes in order to cover a shortfall that never comes to pass.

On the other hand, the situation could become much worse, in which case the current intragovernmental holdings represent less than the total amount of money that future taxpayers would have to pay. A future Congress could refuse to cut benefits even if the trust funds become depleted, in which case future borrowing would be higher even than Frontline's approach would suggest.

The point is that the amount of aggregate intragovernmental debt holdings is simply unrelated to the ultimate burden that promised future benefits will impose on future taxpayers. Five trillion dollars is neither an upper nor a lower bound. It is a meaningless number. Gavin is thus correct to say that "[t]here's an active debate among analysts as to how best to summarize the federal government's financial position going into the future -- but using gross debt is clearly not the right way to do so." Frontlines' producers misunderstand the fact that future benefits and taxes might change, believing that somehow that means that the current amount of intragovernmental holdings actually means something.

Moreover, as my post on Monday pointed out, these debt numbers have no meaning out of context (and precious little meaning even after they are put in context). Whether the national debt is $6 trillion or $11 trillion or some other number, what does that mean? The debate to which Gavin refers has to do with estimates of net borrowing in the future, which only begins to mean something when measured against income (GDP) in the future. Even the scariest-sounding projections out there, with net future debt having a present value of roughly $80 trillion, have to be put in the context of a present value of all future income of roughly $1400 trillion, for a debt-to-GDP ratio of approximately 6%. And again, what does that number mean? What is the right number, and why should we believe that it is zero or that any other number is wrong?

As I have suggested in recent postings, technical expertise is neither necessary nor sufficient to speak intelligently about public policy. When it comes to accounting concepts with specific meanings, however, it turns out that some amount of knowledge is actually necessary. Apparently, none of that matters to those who have decided to hype a big round number.

-- Posted by Neil H. Buchanan

Wednesday, April 08, 2009


It's certainly welcome news that the FDA will require new approval for medical devices that were on the market already in 1976 when the law changed to require approval for medical devices and were exempted from approval at that time.  That's long overdue.

The change is of a piece with regulatory practice in a number of contexts.  The FDA itself sometimes requires a drug manufacturer that has received pre-market approval of its drug to conduct post-marketing studies, which can either confirm or cast doubt upon the initial judgment that the drug's benefits outweigh its risks. Likewise, in other specific contexts, the law either expressly requires periodic re-evaluation or regulates via an open-ended standard that itself has room for growth: E.g., a requirement that a device, drug or whatever be "safe and effective" would seem to require an updating of the baseline for both safety and effectiveness as technology improves.  In this way, standards (rather than rules) sometimes automatically function as the sort of "best-practice" requirements that I discussed earlier in the week in my FindLaw column.

Nonetheless, regulation often occurs via fixed rules that have a limited capacity for re-evaluation and even best-practice standards can become dated over the course of a sufficiently long period of time.  Perhaps the best example of these phenomena is the U.S. Constitution, whose essential features are so difficult to change that it operates in many respects like an outdated medical device, one that perhaps was justified many years ago but cannot be judged "safe and effective" today, given the alternatives (such as abolishing the Senate and the Electoral College, limiting Supreme Court tenure to 18 years, and you-name-your-pet-change).

Posted by Mike Dorf