Friday, October 30, 2009

The Libertarian Objection Again

By Mike Dorf

In response to my FindLaw column and accompanying blog entry last week on the libertarian objection to the proposed individual mandate in various pending health care bills, I received a number of emails and came across various commentaries on the web taking issue with my view.  Here I want to respond to a couple of what I think are clearly misguided objections and then unpack one that, in my view, has more bite.

1) Some critics accused me of ignoring what they regard as the best objection to the individual mandate--that there is no power in Congress to require it.  (E.g., here.)  Yet I quite clearly say at the beginning of the column that there are two primary objections to the individual mandate, and the second one contends "that the federal government lacks the authority under the Constitution to impose the mandate or to penalize those who do not comply."  I then say that I will object this second objection--an objection that constitutional lawyers would routinely call a "federalism objection"--in a followup column.  So, stay tuned on that front.

2) Some other critics say that I haven't rebutted the libertarian argument because I take the existing level of government involvement in the economy as my baseline but that baseline is already way too high.  Yet I did not claim to be responding to all libertarians who object to anything more than a Nozickian watchman state.  I have quite clearly styled my interventions here as a response to the libertarian objections that have been most clearly directed at the individual mandate as such.  And those objections--coming from the Cato Institute (the leading American libertarian thinktank) and leading Republican Senators--make the argument that the individual mandate is, in a key respect, unprecedented.  In other words, their argument takes the existing level of government as the baseline, and I was responding to that.  If libertarians object to the proposed individual mandate on the same grounds that they object to Medicare, Social Security, Medicaid, vaccination, jury duty, and other government activities--including most taxation--they should say so loudly and clearly, rather than muddy the issue by saying that the proposed individual mandate would be unprecedented.

3) But now onto what I find to be the most interesting libertarian objection, which has not been posed specifically as an objection to my defense of the individual mandate but is nonetheless salient.  Some libertarians object that what makes the individual mandate different from prior government mandates is that it is a mandate to engage with a private firm.  The obligations to serve jury duty, to pay taxes, to register for the draft, and to educate one's children involve bilateral relations between the citizen and the government. By contrast, the individual mandate would require people to buy health insurance from third parties--either for-profit or non-profit organizations.  Thus, even some on the left, most notably TruthDig's Robert Scheer (speaking on KCRW's Left, Right & Center), have argued that this is unfair.

The core question I would pose for people like Scheer is why this is any worse than taxing people for other privately provided goods and services they don't use.  The federal government uses my tax money to subsidize private animal agriculture, even though I'm not eating any of the resulting animal products.  The libertarians have complained that the individual mandate is a tax on "existence," but that's just a formality.  The U.S. Constitution expressly approves of head taxes (so long as apportioned according to population) and they were used in the nineteenth century.  Moroever, as I explained in my column, the excise tax in the Baucus bill is triggered by income relative to the poverty line, and so this could just as easily be thought of as an income tax.

Scheer's real objection should be that the various proposals floating around in Congress operate as regressive taxes: the only people who will pay them are those who don't have employer-based or other health insurance and can't afford to purchase it privately.  But that's an egalitarian objection to the stinginess of the proposed subsidies, not a libertarian objection to the mandate.

Scheer also said (during last week's LRC episode) that he would not object to the individual mandate if it were coupled with a robust public option--presumably because then people would not be told by the government to do business with a third party.  That does not appear to be the view of other libertarians on this issue, many of whom would be no happier (and probably less happy) if there were also a public option.  But if we take Scheer's view as the starting point, then I think we can connect it to a rather widely shared position: namely that it is wrong for the government to take from A to give to B.  That impulse underlies the public opposition to the sort of taking for private redevelopment that the Supreme Court upheld in Kelo

I would still argue that the libertarian objection to the individual mandate is misguided, but by seeing it as fundamentally about a perceived abuse of government power to serve private ends, we can at least render it coherent.

Thursday, October 29, 2009

Der Whopper (Real Title: Stiglitz and the Banks)

Posted by Neil H. Buchanan

[Note: The first billboard that I saw when I arrived in Austria earlier this week was for Burger King (advertising Der Whopper), which was grimly funny from the standpoint of American cultural imperialism but simply grim for me as a vegan. I am tempted to write this post about being a vegan in a foreign land, but I'll save that for perhaps another day.]

This month's issue of The Progressive (contents apparently unavailable online to non-subscribers) includes an interview with Joseph Stliglitz, the Columbia economist who is perhaps best known for his fierce attacks on the economic orthodoxy known as the IMF-Washington Consensus. Stiglitz, who also won the quasi-Nobel prize for his brilliant work on the shortcomings of markets due to imperfect information, has spent the last few years arguing that the neoliberal prescriptions (deregulating financial markets, radically reducing social safety nets, etc.) that the US and its international arms impose on other countries are both immoral and ineffective.

Perhaps of more current interest, Stiglitz has been an unrelenting critic of the Obama economic team, in particular Larry Summers. Stiglitz recently said of the Obama team that they are "either in the pocket of the banks or they're incompetent." He explains further in the interview that "in the pocket of the banks" need not mean "on the take" but simply describes having adopted a mindset that sees the world the way bankers would like policymakers to see it. That certainly does seem an apt description of Geithner, et al.

Stiglitz makes two further points that I found especially interesting:

(1) "Wall Street banks have used the same tactic that Bush used in the war on terror -- fear -- and they've basically said that if you don't do what we tell you ... it will be the end of capitalism as we know it." The interesting thing about this provocative comparison is that the analogy works not just on the initial level -- two broad policy mistakes that were perpetrated by taking advantage of mass panic -- but it carries through to deeper levels as well. In both the terror situation and the financial crisis, there really is something horrible going on, and it thus makes sense to fear for our continued existence.

That is why, for example, I have defended the TARP and the Fed's actions, because they were (I continue to believe) absolutely necessary to stop the economy from going into freefall. Similarly, many people believe (though I do not, for reasons not pertinent here) that the Afghan war was "the good war" and that things like near-strip-searches at airports are acceptable. The question is not whether doing nothing at all is an option, because it was not in either case.

Stiglitz does not actually disagree that the financial bailouts were necessary. He does argue, however, that the problems were misdiagnosed. For example, the bailout of Citibank pretty much said to the world that Citi was in huge trouble. If, instead, we had forced Citi to restructure, that would not have sent any worse message to the markets or the public, Stiglitz points out. Still, our leaders chose the route that maximized the happiness of the bankers. Stiglitz, in fact, argues generally that the problem is that the government simply did not extract enough concessions from the banking system in exchange for the trillions that we gave them.

(2) Stiglitz endorses the notion of a two-tiered banking system, with a government component. That is, he argues that banks have incentives to prey on the poor, to serve them badly (if at all), and to charge exorbitant fees. He thus suggests that the government could simply set up a banking system to provide basic financial services to the poor (check cashing, etc.), while allowing private banks to deal with people who actually have some ability to protect themselves from predation. Do you think Chuck Grassley and Max Baucus would like that idea? For that matter, what would Chuck Schumer (guardian of New York's financial class, though a progressive on most other issues) spew upon hearing this?

I argued during the Presidential transition in January that Stiglitz would have been a great choice for Obama's chief economist. He keeps proving it.

Auf wiedersehen!

Wednesday, October 28, 2009

Hate crimes, classification, and motivation

Posted by Sherry F. Colb

My column on FindLaw today focuses on conservative critiques of the hate crime bill that President Obama is scheduled to sign into law today.  The law would extend federal hate crime status (subject to federal prosecution) to otherwise criminal acts that involve victims selected on the basis of sex, sexual orientation, and disability.  Some critics have suggested that hate crime laws amount to "thought crime" laws because they differentially punish conduct on the basis of what's going on in the perpetrator's mind.  My column explains why this critique is ill-founded and would, in any event, prove too much for the critics' own taste.

In this post, I want to raise a distinct question about hate crime laws, which is whether it makes sense to single out classification (e.g., selecting a victim because he is gay) rather than underlying purpose (e.g., harming a person belonging to a group you hate).

Consider an example.  A robber might decide to choose a victim on the basis of disability.  A victim who is blind, for example, will have a more difficult time identifying the perpetrator than a sighted victim would have.  A victim who is in a wheelchair will have a more difficult time pursuing the perpetrator than a victim who is able to run.  If a robber chooses the victim in this way, does the fact that he is selecting his victim on the basis of a disability make his crime worse than that of a different robber who does not make this choice?  Isn't his choice more opportunistic than it is hateful?  And should this matter?

To put these questions into context, consider the murderer who selects his victim because the victim is gay, and the murderer hates gay people.  The murder here (of Matthew Shepard, for example) strikes many people as worse than a murder that is not motivated by hatred of gay people (e.g., the murder of an employer in retaliation for his firing of the perpetrator).  The crime is truly a "hate" crime, driven by animus, and is not simply opportunistically targeted at a gay person.

In both sorts of cases, the perpetrator is choosing his victim because of the victim's membership in a particular class.  What differs is the answer to the second-order question of why the perpetrator is selecting a victim on the basis of a prohibited category.  Some reasons for selecting victims on the basis of race, sex, sexual orientation, etc., seem to many to be more reprehensible than other reasons for selecting victims on these bases.

I do not have a definitive answer to this question, but I am inclined to favor the classification approach to hate crimes (to the extent that having hate crimes is a good idea at all, which is a question for another day).  Determining why a person chose a particular victim is a challenging enough endeavor, in part because it is difficult to know why people do what they do and in part because even the people in question may not know what ultimately drove them to act as they did.  To require an inquiry into what exactly motivated the perpetrator to select the victim for the reason he did adds another layer of complexity and difficulty to the process.

If we want to have laws that specifically penalize hate crimes, the classification-based selection of victims is a useful (if not perfect) proxy for classification-based animus.  Requiring greater precision (in the form of "X selected Y because of his gender identity on the basis of X's hatred of people with Y's gender identity) is unlikely to succeed and will commit resources to an inquiry that may ultimately be unanswerable.

Tuesday, October 27, 2009

Academic Freedom, Chicago Style

By Mike Dorf

In a speech last week at a Columbia University conference on academic freedom, University of Chicago President Robert Zimmer made a number of sensible points about the value of academic freedom, including the observation that the general principles of academic freedom shared by modern universities will be implemented differently at different institutions depending on their respective histories and cultures.  In particular, he noted that for his own university, the principles articulated in a 1967 report by constitutional law professor Harry Kalven are especially salient.  Zimmer pointed to Kalven's statement "that the University, as an institution, should take no political positions and should remain neutral on such matters (except of necessity those in which it is a direct party), in order to ensure that [it has] a maximally open environment."  Here I want to suggest that, as applied by the University of Chicago, this principle is problematic.

Zimmer gives the following example as his chief illustration of the neutrality principle in operation at the University of Chicago:  "The Kalven report was the basis for the University of Chicago not agreeing with requests that we divest from companies doing business in South Africa or Sudan."  Now this hardly follows as an inevitable consequence of the Kalven statement.  One could have thought that a university's management of its investment portfolio makes it "a direct party" in disputes about the propriety of those investments

Indeed, once one chooses to see a university's decision whether to divest as inappropriately political, it is hard to see why the University was not taking a political stand by NOT divesting.  The position that moral considerations should not affect investment decisions is, after all, a political position.  This is not to say that divesting would have obviously been the right choice.  In these debates, there is always a question of whether divestment will be counter-productive or harm the people it is supposed to help.  But choosing not to divest for that sort of reason would at least acknowledge the political character of the decision.  The Kalven/Zimmer/Chicago view attempts to have it both ways: In declining to draw a distinction between what the university is saying versus what it is doing for purposes of using the Kalven exception for direct action, it potentially treats all university actions that touch on politics as the taking of a political position; but then it purports to disclaim any political position by drawing what appears to be a false act/omission distinction.

The false act/omission distinction says that divesting would be a political act, but of course one could as easily reverse matters and say that holding stock in the companies doing business in South Africa or the Sudan (or wherever) is the act, whereas maintaining a portfolio free of the tainted stock is the omission.

To repeat, I'm not taking a position on divestment per se. My point is simply that a great deal of what universities do is "political" in the sense that people can make a political issue of it.  Here's another example: Reputable universities do not hire or tenure biologists who espouse crackpot theories about intelligent design (although academic freedom presumably protects a tenured biologist who newly endorses intelligent design in his work).  External pressure might nonetheless be brought to bear on a university--especially a state university--to hire an intelligent designist and the university's resistance might well then be characterized as "political" or, more likely, "politically correct."

If I were applying Kalven's principle, I would want to defend the university's resistance to the pressure in this hypothetical case by saying that the application of the biology department's academic standards either makes the decision not to hire the intelligent designist apolitical or that, if it is political, it is political in a matter that directly concerns the university, and thus falls within Kalven's exception.  But Zimmer's narrow conception of the Kalven exception, and his correspondingly broad notion of "politics," may make this approach unavailable.

In the end, it's not even clear to me that the core of Kalven's principle--which is justified in the name of not wanting to chill expression--is a principle of academic freedom rather than simply a prudential principle of governance.  Consider one last example.  Suppose that a private university in a state that does not recognize either same-sex marriage or same-sex civil unions voluntarily extends various benefits to same-sex partners of university officers, employees and students on the same basis that it extends benefits to opposite-sex married couples.  Does this policy have any less of a chilling effect on a philosophy or Divinity professor who opposes same-sex marriage and civil unions than would an official university pronouncement unconnected to a benefits policy?  Doesn't the actual provision of benefits by the university make the point that the University supports marriage/partnership equality even more strongly than would a policy pronouncement alone?

To my mind, more important than Kalven's principle of neutrality is a principle that even when the university takes a strong position--whether by acting, speaking or both--dissenting faculty and students are free to take contrary positions.

Monday, October 26, 2009

Can Sex Offenders Be Barred From Church?

By Mike Dorf

As widely reported, including in this Time magazine story, sex offenders who are barred by state law from going near children have begun to invoke their free exercises rights when such state laws are used to keep them from attending religious services in houses of worhsip that also supervise children.  The Time article focuses on a North Carolina case, but the problem is broader.  Unfortunately, the article does not go into the real legal issues in any depth.  I'll take a shot at clarifying.

There is pretty clearly no federal free exercise problem here.  Back in the day, the formal doctrine from SCOTUS said that whenever the govt substantially burdened somebody's ability to practice his or her religion, the law or policy doing the burdening had to be subject to strict scrutiny: The govt had to prove that the law or policy was narrowly tailored to serve a compelling state interest.  Under Sherbert v. Verner, the strict scrutiny test applied not only to laws that specifically targeted religion as such but also to religion-neutral laws that happened to impose incidental (but nonetheless substantial) burdens on particular people.

In Employment Div. v. Smith, the Supreme Court changed its approach.  Under Smith, a law of general applicability--i.e., a law that does not single out religion or any particular religion for special burdens--can be validly applied in circumstances in which it limits the ability of someone to practice his religion; free exercise, as interpreted by the SCOTUS, simply does not require religious exemptions.  Technically, the Court distinguished rather than overruled the old cases, characterizing them as requiring exemptions only where there was already in place an administrative scheme for granting other sorts of exemptions or where the claimant's free exercise claim was coupled with some other constitutional claim, and thus posed a "hybrid" right.  A small number of lower court cases take the hybrid category seriously, but I do not.  It was pretty obviously made up in Smith so that the Court could pretend it wasn't overruling prior precedent.  There's no principled basis for the hybrid category and the particular outcome it was used to justify, Wisconsin v. Yoder, involved a hybrid of free exercise and the unenumerated right of parents to direct the upbringing of their children.  Yet Justice Scalia, the author of the Smith majority, does not even believe in that unenumerated right, so it is hard to see why he would think it adds anything--except as a way of disingenuously distinguishing rather than overruling Yoder.  Thus, the best reading of Smith is that it does not require exemptions from laws that do not specifically target religion.

The North Carolina sex offender law, like those of other states, does not single out churches.  It applies equally to bar registered sex offenders from other places children congregate, such as day-care centers, public parks, or schools that have adult education classes at the same times that they have programs for children.  Thus, under Smith, there is no federal free exercise problem.

Congress tried to overrule the Smith decision in the Religious Freedom Restoration Act (RFRA), which would have reinstated the pre-Smith requirement that even religion-neutral laws must be subject to strict judicial scrutiny when they substantially burden religion.  However, as applied to states and their subdivisions, RFRA was struck down as beyond the enumerated powers of Congress in City of Boerne v. Flores.  A subsequent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), applies the RFRA rule to persons who are "residing in or confined to an institution," but registered sex offenders out on parole or probation do not meet that test, so they are stuck with Smith.  (A few prisoners have tried to challenge proposed probation conditions during parole hearings, but under the statute's plain meaning they aren't entitled to the protections of RLUIPA once they're released.  Indeed, the basis for Congressional power to enact RLUIPA is the receipt of federal funds by state prisons and jails; applying RLUIPA to a parolee/probationer's claim outside a jail or prison would render the Act unconstitutional, per Boerne.)

People like James Nichols (the protagonist in the Time Magazine story) can do much better under state law.  Some state high courts interpret their state constitutions to require religious exemptions from generally applicable laws where those laws substantially burden free exercise and do not satisfy strict scrutiny.  Other states achieve the same result via state RFRAs.

Nichols, however, appears to be out of luck on this front too, because North Carolina apparently follows the federal rule.  I say "appears" and "apparently" because the issue is not entirely free from doubt.  North Carolina has no RFRA of its own, and a 1967 North Carolina Supreme Court case, In Re Williams, had this to say about the state's constitutional protection for free exercise:
the term ‘rights of conscience’ as used in Article I, s 26, of the Constitution of North Carolina, must be construed in relation to the right to worship God according to the dictates of one's own conscience. Consequently, the freedom protected by this provision of the State Constitution is no more extensive than the freedom to exercise one's religion, which is protected by the First Amendment to the Constitution of the United States. Clearly, these constitutional provisions do not provide immunity for every act which one's conscience permits him to do, or even for every act which one's conscience classifies as required by ethics, nor do they shield the defendant from a command by the State that he do an act merely because he believes it morally or ethically wrong. It is the right to exercise one's religion, or lack of it, which is protected, not one's sense of ethics.

That language on its face adopts what state con law scholars call the "lockstep" approach, whereby the state's constitutional rights are identical to those protected by the federal Constitution.  However, in distinguishing what is required by "ethics" from the exercise of religion, the North Carolina Supreme Court could have been implying that where something truly is a matter of religious exercise--as church attendance undoubtedly is--then it is at least presumptively protected, even against laws of general applicability.  Indeed, at the time the Williams case was decided, the operative doctrine in the Supreme Court was given by Sherbert v. Verner, and the Willimans court cited and applied Sherbert's test.  So, when in Williams, the North Carolina Supreme Court equated the state constitutional protection for free exercise with the federal First Amendment's Free Exercise Clause, it was equating the former with a substantially broader notion of free exercise--one which requires exemptions if strict scrutiny is not satisfied--than we now have under Smith. It was the Sherbert test, invoked by that name, that Congress sought to restore via RFRA.  If Williams is read as adopting that test, then it was never abandoned in North Carolina.

However, at least one lower court in North Carolina has said (in an unpublished 2006 decision I found on Westlaw), that the core holding of Williams is the equation of the North Carolina right of conscience clause with the SCOTUS's First Amendment jurisprudence.  This lockstep approach is, to use the language of an article of mine in the 2008 U Penn L Rev, "dynamic" rather than "static," so that when the SCOTUS substituted the stingy Smith test for the more generous Sherbert test, it thereby changed the meaning of the North Carolina right of conscience clause as well.

Finally, let's come to the merits.  What about a case from a state that applies the Sherbert test, either as a matter of state con law or a state RFRA?  Is there a compelling interest in keeping registered sex offenders away from children?  Of course.  But it's not at all clear that banning a registered sex offender from a house of worship is narrowly tailored to advance that goal.  Certainly one can come up with alternatives: E.g., the registered sex offender must be accompanied by other adults, who assume responsibility for supervising him or her, whenever the offender comes to the house of worship.  If and when a state with a Sherbert-style free exercise regime confronts one of these cases, the law will likely be most vulnerable at this second stage of the analysis.

Friday, October 23, 2009


By Mike Dorf

Herewith, three barely considered thoughts on the news that the govt is slashing pay of some execs at firms that received bailout funds:

1) There is an element of inevitable unfairness here: Execs at firms that received but have since repaid bailout funds do not have their pay slashed even though the bailout may have been instrumental in their firms' continued existence.  ("May" because some firms were basically told they were getting bailout funds whether they wanted them or not.)  I say this is inevitable because the govt lacks leverage over firms that have returned funds: it is no longer a substantial creditor or equity holder.

2) Perhaps the unfairness was less inevitable for firms that continue to benefit from the bailout because they were counterparties to credit default swaps (and other deals) with bailed out firms.  Some such counterparties were at risk of going under and it is hardly clear that the govt paying $100 billion to Firm B, which it then uses to honor its obligation of $100 billion to Firm A is materially different from the govt simply paying firm A the $100 billion.  If B would have gone bust absent the govt funds, and if A would have been far enough back in line that it would have lost most or all of the money owed by B, then A has effectively gotten a bailout.  It's true, of course, that the govt now lacks the leverage to get pay concessions from A, but that simply means that the govt should have placed greater restrictions on what B could do with the money in the first place.  The best that can be said in this respect is that hindsight is 20/20, the economy was on the brink of catastrophe, and so the whole bailout was a rush job that therefore didn't include all the jots and tittles we'd like.  The worst that could be said is . . . well, you know, look at Sec'y Geithner's phone log . . . .

3) By worldwide standards, Americans tend not to be egalitarian with respect to compensation.  That is, we tend to think that the super-rich are entitled to stay that way, so long as they earned their money more or less according to the rules.  Commitments to social welfare programs here have traditionally been less generous than in other developed countries and inequality as such is rarely an issue.  Don't believe me?  Ask President Edwards.  Going forward, it will be interesting to see whether the outrage generated by large bonuses at bailed out firms extends beyond the idea that people shouldn't be lavishly rewarded with public funds for work that is not socially beneficial to support for higher and more progressive taxes in general.

Thursday, October 22, 2009

Too Ignorant to Enter into a Contract

Posted by Neil H. Buchanan

In my new FindLaw column, available here, I continue my recent discussion of the inextricable role of government in making it possible for a country to benefit from a market economy. I focus on the proposed Consumer Financial Protection Agency (CFPA), the brainchild of Harvard Law Professor Elizabeth Warren that would rein in predatory lending and would be designed to allow regular people to engage in responsible borrowing.

My argument in that column is that those who oppose the CFPA on the ground that it inappropriately injects government into private transactions are simply incorrect. Private transactions, and especially loans, are only possible (or appealing) because they are enforceable by government. There is a regulatory system in place that shapes the market for consumer loans, and that system is currently very pro-lender. (I do not even mention the change in the bankruptcy law in 2003 that tilted the playing field even more decidedly in favor of lenders.)

In passing, I mention in the column that it is especially appalling to claim that we can expose the average American to the tender mercies of the consumer loan market when we as a society have failed so abysmally to educate so many of our citizens. If the social Darwinism of our time insists that people must read the contract and protect themselves, then that makes it all the more important that we make sure that they receive the education necessary to be able to understand a contract when one is offered.

This observation might lead us to propose an expansion of the doctrine that provides a defense in contract on the basis of mental deficiency (similar to the doctrine of "infancy," in which anyone under 18 cannot be held to a contract -- even though they can enforce a contract against others). We could essentially say to Congress: "Either give people a decent education, or give them the ability to protect themselves against their own ignorant errors in daily commerce." As initially appealing (or, perhaps, rhetorically delicious) as that idea might be, however, it ultimately misses several key points.

First, as I note in today's FindLaw column, even educated people do not read contracts. Because I am a Contract Law professor, I go out of my way to read as many contracts as I can, but I click through licensing agreements as fast as anyone. The presumption that we could have a system of contract with fewer or no equitable defenses if only everyone had a J.D. is fatuous. Contracts are often inherently complicated and often require more education than could reasonably be provided to the vast majority of citizens. (The consumer loan contract in Williams v. Walker-Thomas Furniture, the famous "unconscionability" case, is a great example of a contract that is impenetrable even after multiple readings by people with years of higher education.)

Second, the classical ideal of face-to-face, issue-by-issue negotiations that underlies contract law is simply inapt for the modern economy. Acting as if we can simply give people better educations and then send them out on their own in a world of basic contract law ignores the change that mass consumerism wrought on the notion of contracting. Contracting is now too expensive to be done the old fashioned way. When the assembly line replaced individual craftsmanship, non-negotiated contracts replaced old-fashioned customized contracts. The law has never really caught up to that change, notwithstanding Llewellyn's best efforts. Pushing the education angle inadvertently pushes us back in the direction of this outmoded way of thinking about contracting.

Finally, third, the "either educate them or protect them from harsh contract outcomes" approach would almost certainly lead to a disastrous conclusion: that it is much cheaper to change the law of contracts (to treat adults as if they were infants or mentally defective) than it would be actually to educate them. In fact, it would not ultimately be cheaper, because the choice to give up on people's education would undermine future economic prosperity. However, in exactly the same way that going cheap on bridge repairs looks financially appealing until it is too late, the high cost of failing to educate people would not be obvious until it is much too late. (The non-economic benefits of education are arguably even more important.)

When I was clerking in Oklahoma (which at the time ranked 45th in the country in overall educational attainment, if I recall correctly), I discovered up close what a truly uneducated populace is like. Commerce simply did not work as smoothly as in other places that I have lived. One consequence of mass ignorance, moreover, is that education is not respected. As one prominent Oklahoman put it to me, with an exaggerated and sardonic twang: "We're just too dumb to educate ourselves." We must always resist any temptation to make it seem acceptable to keep people in ignorance.

Tuesday, October 20, 2009

Positive Versus Negative Impingements on Liberty

By Mike Dorf

In my latest FindLaw column I consider the libertarian objection to the proposed individual mandate in most of the health care reform proposals now before Congress.  Some libertarians say that it is both unprecedented and categorically worse for the government to require people to do something affirmative (such as buying health insurance) than it is for the government either to forbid some action or to require some other action as a condition of engaging in an activity (such as practicing medicine) that the govt could prohibit.  I end up concluding that the objection is not sound.

Here I nonetheless want to try to unpack the intuition that there is something worse about affirmative impositions on liberty than prohibitions.  Let's begin with a pair of examples that show how an affirmative imposition feels worse.  Suppose the govt says that I must be at jury duty from 9 to 5 for a week.  That is clearly a greater restriction than a negative imposition that forbids me from, say, going to the movies during that same time.  In the first case, I can't do anything other than go to jury duty; I can't even go to the movies.  By contrast, in the second case,  I can do anything I want--other than go to the movies.  So the affirmative imposition seems MUCH more of an imposition than the negative one.  And we might think this is typical: Prohibitions take one option off the table (the prohibited conduct) but leave us free to do anything else, whereas affirmative obligations tell us exactly what to do.  They leave no freedom of movement.

But the foregoing juxtaposition does not appear to be an inevitable feature of affirmative versus negative impositions. Consider an example suggested to me by Neil Buchanan: Suppose that a parolee is under a form of house arrest.  The parole condition could state that the parolee must be in his house at all times--an affirmative obligation to be somewhere--or it could state that the parolee is forbidden from going anywhere outside his house at any time--a negative imposition.  Yet obviously these conditions are identical.  Indeed, we could frame a much more restrictive negative prohibition--e.g., don't leave your house--than a positive one--e.g., you must be in North America.  The key is the scope of the restriction, whether positive or negative, not whether it is positive or negative.

Can every affirmative obligation be turned into an equivalent negative one and vice versa?  I don't think so.  For example, if I am told that I am forbidden from doing anything other than being at jury duty, that still doesn't get me actually serving on the jury without some sort of affirmative obligation--except in the trivial semantic sense of a prohibition on not serving on the jury.  But even if we acknowledge that there are some such cases where an affirmative obligation cannot be turned into a negative one except by double negatives, it still does not follow--for reasons I explore in the column--that affirmative obligations are necessarily or even generally more restrictive than prohibitions.

Won't You Be My Neighbor?

By Mike Dorf

Having arguably called for the abolition of football last week (and that was before the Saints crushed the Giants!), I shall now boldly venture into the rules of baseball, albeit for purposes of making a larger point about the law on the books versus the law in practice: During Saturday's ALCS game 2, umpire Jerry Layne called Yankee Melky Cabrera safe at second base when Angels shortsop Erick Aybar straddled but did not make contact with second base before throwing on to first for what Aybar thought would be a double play.  Layne had enforced the rule as written but Aybar and Angels Manager Mike Scioscia said that he had thereby failed to honor the unwritten "neighborhood rule," which says that if a second baseman or shortstop steps in the neighborhood of the bag on a double play, the runner is out.  This supposed neighborhood rule is meant to protect infielders against baserunners barreling or sliding spikes up into them.

The particular play is of only academic interest because it did not materially affect the outcome of the game (except perhaps in the unknowable butterfly-beats-its-wings sense): the Angels got out of the inning without allowing the Yankees to score.  Further, there has been some debate among baseball fans and writers about whether Layne had respected the neighborhood rule earlier in the game.  Fox announcer Tim McCarver first said he had, then later recanted after his staff reviewed earlier double plays, but some bloggers have said that those Fox staffers themselves got it wrong and that McCarver was right in the first place.  Whatever.

Here I want to raise the more general question of when an unwritten rule should be permitted to trump a written one.  Let's begin by drawing a distinction with a different situation: Often, in baseball and in other rule-governed activities, including law, the rule as written is silent or ambiguous on some point, and an unwritten rule supplements it.  For example, there is an unwritten rule that allows managers and players to argue with umpires about most calls but not about balls or strikes.  There are also supposedly some "magic words" that will get one thrown out of the game.  These unwritten rules supplement but do not contradict the written rules governing ejections.

By contrast, according to the rulebook, the neighborhood play should result in the runner being called safe but (if used by the ump) it results in the runner being called out.  (A related neighborhood rule sometimes permits a middle infielder to tag the dirt in the neighborhood of a runner attempting to steal second base and get an out call if the throw beats the runner.)  This is quite closely analogous to the situation I used to face when I lived in Manhattan: The official local law forbade dogs off leash in Central Park at any time, but the Park police routinely did not enforce the rule in the morning before 9 A.M.  Well-behaved dogs could romp freely in various areas of the park that were known to the local dog owners.  Likewise, marijuana possession in the Netherlands is a misdemeanor, but the government has adopted a policy of non-enforcement.

Now the question: In circumstances such as the foregoing--in which the written rule could easily be replaced with a formalized version of the unwritten rule--what are the costs and benefits of leaving the written rule as is but enforcing a contrary unwritten one?  The costs are pretty easy to identify: The ever-present possibility that the written rule will be enforced creates anxiety for those subject to it, while opening the way to abuse by officials in the form of arbitrary or discriminatory enforcement; and even if the unwritten rule is uniformly enforced, the very fact that the persons subject to it must come to understand that the law is not what is written down can undermine the core principle of legality and breed disrespect for law more broadly.

Are there compensating benefits?  In some contexts, yes.  Formalizing an unwritten rule could communicate to the public that the conduct it permits is laudable or at least harmless.  The Dutch marijuana example is a case in point.  Actually legalizing marijuana would send a signal that there is nothing harmful about it, whereas the policy of non-enforcement of the prohibition is (presumably) premised on the notion that enforcement itself would do more harm than good (as we see from the war on drugs here), even though marijuana use is unhealthy.

It's much harder to make the case that Major League Baseball or the NYC parks authorities are worried about condoning bad behavior, although it is still possible to make out a case for keeping the unwritten rule unwritten even here.  In both instances, one might worry about slippage: If you think that no rule will be strictly enforced, then formalizing the unwritten rule will lead to a still looser rule in practice.  So long as the rule says the middle infielders must make contact with the bag, the "neighborhood" will be defined narrowly; if the actual formal rule said "neighborhood," we might expect umpires to start calling even more players out.  This justification is familiar to drivers.  When the speed limit is 55 mph, drivers routinely drive at up to 65 mph without much fear of being ticketed.  But actually raising the speed limit to 65 mph will lead to drivers going at 75 mph.

Whether the benefits of keeping the unwritten rule unwritten outweigh the costs identified above is difficult to judge in the abstract.

Monday, October 19, 2009

Stevens Case Redux per Radio

By Mike Dorf

Updated!  Podcast is available now, here.

Today from 10 am to 11 am, I'll be on WHYY's Radio Times (which you can stream live from here), in a segment on the Stevens case, discussed earlier on the blog here.  (I'll post a link to the podcast in an update to this entry once it's up on the show's website.)  In addition to host Marty Moss-Coane, I'll be joined by Temple law professor Craig Green, who recently wrote an op-ed in the Philadelphia Inquirer, arguing that government power to ban some activity (like dog-fighting) does not entail government power to ban pictures or films of that activity.  It's a well-reasoned and well-written op-ed, but it almost entirely fails to address the government's main argument in the case--which is that depictions of illegal torture or killing of actual animals form an unprotected category of speech in the same way that obscenity and child pornography do.  (One could point to other categories of unprotected speech, such as fighting words, defamation, and incitement, but the analogy is closer for obscenity and child pornography.)

I say that Professor Green "almost" entirely ignores the crucial issue in the case because he does obliquely acknowledge the potential hole in his position when he says: "In this country, we usually punish bad acts, not bad pictures."  The key weasel word in that sentence is "usually."  What about the UNUSUAL cases? Should animal cruelty, as defined by the statute at issue in Stevens, be deemed one of them?

I suspect that Professor Green, like many free-speech libertarians, believes that the Supreme Court's obscenity and child-pornography cases are wrong.  Indeed, even I think there is no sound basis for treating obscenity as unprotected.  Obscenity doctrine appears to be based on the judgment that certain forms of titillation are harmful in themselves, quite apart from any harm done to the people involved in their production.  By contrast, the permissibility of prohibitions on child pornography is based on the notion that actual children, who lack the capacity to consent to their sexual exploitation, are harmed in the creation and dissemination of child pornography.

Of course, neither Professor Green nor I have the power to eliminate a Supreme Court doctrine, and it is impossible to imagine that the Court would say that obscenity or child pornography is now fully protected speech.  Thus, to analyze the Stevens case as it exists in the real world requires some attention to how to reconcile the speech/conduct distinction (which, I agree with Professor Green, is generally important), with the categorical exceptions we already have.  We'll see how it goes on the air.

Friday, October 16, 2009

Should Football Be Banned?

By Michael Dorf

A New Yorker article by Malcolm Gladwell is provocatively titled, "Offensive Play: How Different Are Dogfighting and Football?"  Gladwell's answer: Not that different.  The piece is worth reading in its entirety but for the benefit of those who choose not to, here is a very brief summary of the main points.
1) Medical evidence now shows that a large proportion of professional football players suffer traumatic brain damage that seriously impairs their ability to perform basic life functions, changes their personalities, and may shorten their lives.
2) Although concussive impacts play a role, much or most of the brain damage results from repeat non-concussive blows to the head that are endemic to the game, especially for linemen.
3) Neither better helmets nor any of the sort of rule changes that might be adopted are likely to change these outcomes.
4) Shifting from tackle football to two-hand touch or flag football would change the outcomes, but Gladwell (and I) would consider that tantamount to banning what we know as American football.
5) Like dog-fighting, professional football exploits the "gameness" of the fiercest competitors--i.e., their willingness to keep on going long after the pain and injury should have made them quit.

With respect to the dog-fighting analogy, there is of course an important difference: Human beings consent to become professional football players, whereas dogs trained to fight to the death do not so consent.

But putting aside the comparative question, it is not clear that consent should count for much in the football context anyway.  We forbid dueling with pistols, even if the duelists have given fully informed consent.  Only the most radical libertarians would suggest that informed consent is a sufficient basis for any voluntarily undertaken activity.

So, should football be banned?  As Gladwell notes, correctly, it won't be, so there is not much practical point to answering the question.  But practical or not, it is worth asking why football won't be banned.  At least part of the answer, I think, is its cultural pervasiveness.  People who grew up loving football (as I did and as most American males and many American females did) take the fact that it is simply part of the landscape as a kind of reassurance that it's okay.  Sure, there are occasional tragedies.  The event that sticks out for me was Jack Tatum's paralyzing 1978 hit on Darryl Stingley.  But that was encoded as a reminder that football is a violent game with risks, not as evidence that football is a form of Russian roulette.  By comparison, the lethal knockout of Duk Koo Kim in 1982 probably turned more people off to boxing, because injury seems to be the point of boxing in a way that it is only a side effect of football.

Gladwell's point, I think, is that we need to start thinking of brain damage as part of the point of football.  If players started exploding on the field, say, then the unthinkable might become thinkable, and we would consider banning football.

Finally, speaking of dog-fighting, I'll be on WHYY (the NPR station) in Philadelphia on Monday at 10 am talking about the Stevens case in the Supreme Court.

Thursday, October 15, 2009

The Bank of Sweden and You

Posted by Neil H. Buchanan

Earlier this week, news outlets (e.g. the New York Times, here) announced that this year's "Nobel in Economics" was awarded to two Americans: Elinor Ostrom and Oliver Williamson. A few thoughts:

(1) "While commonly used, this term [Nobel Prize in Economics] is not strictly correct. The Nobel Prizes are separate and distinct from the economics award. The Nobel Prizes were first awarded in 1901 and are called 'The Nobel Peace Prize' and 'The Nobel Prize in _____' (Physics, Chemistry, Medicine, or Literature). See, e.g., The Nobel Prize in Physics, The economics award, on the other hand, was first awarded in 1969 and carries the somewhat ungainly name [the Bank of Sweden Prize in Economic Sciences in Memory of Alfred Nobel]. For a critique of the economics prize and an argument that the award should be abolished, see Barbara Bergmann, Abolish the Nobel Prize for Economics — How Fair Is the Nobel?, CHALLENGE, Mar.–Apr. 1999, at 52."

I wrote those words in 26 Va. Tax Rev. 1151, 1158 (2006). (Actually, it's the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel.) Why does the distinction matter? Because the award is all about prestige, and the winners of the award are held in high esteem by the general public only because it is a "Nobel Prize." In a year in which I am personally happy with the winner (most obviously 2008, when Paul Krugman won), that is all to the good. Frankly, however, there is no good reason to have a lifetime achievement award in Economics, and the winners whose work has had seriously negative effects on the world (the guys who brought us Long-Term Capital Management, the other guys who brought us Rational Expectations, and the rest) have also had their negative impact enhanced by winning the award.

Those who disagree with me on substantive grounds can simply reverse the list. Hate on Krugman, Stiglitz, Solow, Myrdal. Big love to Friedman, Becker, et al. It is not, however, a wash. Having one's happy years does not guarantee that the damage in bad years is offset. Moreover, the merits on which the award is based are typically wholly separate from famous (and infamous) recipients' policy views. Krugman, for example, won for his technically impressive work on international trade theory. I doubt that any of his fans or detractors know or care about that.

(2) Even though it is wonderful that a woman has finally been a winner of the award, it is painful to remember that Joan Violet Robinson never won the award. Because the award cannot be won posthumously (thus ruling out years of catching up with the greats: Smith, Ricardo, Marx, Keynes), Robinson's death more than 20 years ago meant that she can never be honored with the award. The widely-accepted theory is that she did not win because she was an avowed Socialist, and the committee of bankers simply could not bring itself to give her the award, even though she was one of the greatest economists of her generation (and certainly greater than some who had already won, e.g., Hicks).

There is thus a permanent taint on the award. It should not be a greater taint merely because a different woman will finally share the award. (A woman has still not won it outright, it should be remembered.) Professor Ostrom certainly deserves to share the spotlight and the money and not to apologize for not being Joan Robinson. If she did, every male recipient should similarly apologize, but there can be no shame in not being one of the greatest of the greats.

(3) I doubt that I am the only economist who read the news and said, "Ollie Williamson and who?" Again, this is not to detract from Professor Ostrom. Her work, now that I am somewhat familiar with it, certainly is worthy of recognition. The point is that she is a political scientist, and she is thus unfamiliar to many if not most economists. The newsworthy aspect of this year's award, in fact, is that the committee again had to reach outside of economics departments when it honored work in "economic science." (Although Williamson is an economist, much of his career has been spent in other academic schools and departments.) As in 2002, when the award went to an untraditional economist (Vernon Smith) and a non-economist (Daniel Kahnemann), the committee seemed to be saying that it has become difficult to find worthy economists for the award.

(4) According to the New York Times article by Louis Uchitelle: "[I]n honoring [Ostrom], the judges seemed to suggest that economics should be thought of as an interdisciplinary field rather than a pure science governed by mathematics. ... The Nobel judges, in their description of Mr. Williamson’s and Ms. Ostrom’s achievement, said that 'economic science' should extend beyond market theory and into actual behavior." To quote the movie Buffy the Vampire Slayer: "Does the word 'duh' mean anything to you?" It is amazing that what should be a truism to the point of cliche is the basis for conferring an award that carries such prestige among serious thinkers.

Yet there we have it. It is a breakthrough to say that economics is not a pure science and it should be concerned with actual behavior. Early in my career, my colleagues in the economics department of a small liberal arts college wanted to petition the dean to move our department from the Social Sciences division to Natural Sciences. I protested and said that this was not a good idea. "Why?" they asked. "Because economics is a social science." "Oh, right."

By the way, I now teach in a law school.

Wednesday, October 14, 2009

When Messenger and Message Collide

By Sherry F. Colb

In today's column on FindLaw, I discuss a pending case before the Supreme Court raising the question whether a suspect who neither explicitly waives nor explicitly asserts his rights after receiving Miranda warnings may be interrogated.  An important part of my analysis turns on a major purpose behind the Miranda warnings -- mitigating the coerciveness of custody by reversing the presumption that answers to police questions are voluntary if a suspect does not assert his rights.  Among other things, I conclude that having a police officer announce rights that she hopes you will not assert may not be an especially effective mechanism for transmitting information.  In this post, I want to apply this lesson about conflicted messengers to the practice of fertility medicine.

The New York Times this past weekend ran a few articles about the great cost -- both financial and human -- associated with aggressive fertility treatments.  In brief, when couples go to a fertility clinic for either intrauterine insemination (or "IUI", a fancy name for artificial insemination in which sperm are introduced directly into a woman's uterus) or in vitro fertilization ("IVF"), they are typically so desperate to maximize the odds of a pregnancy that they undervalue the risks associated with carrying twins and other multiples.  As a result, couples request the transfer of several embryos rather than just one, a move that substantially increases both the odds of a pregnancy and, unfortunately, the odds that if there is a pregnancy, it will include more than one fetus.  With multiple pregnancies comes increased chances of complications for both mother and babies, including but not limited to prematurity (and associated ailments and disabilities).

The Times articles tell of tragic situations in which families found themselves, in which they (or their insurers) had to spend hundreds of thousands of dollars in treating premature infants and in providing special education to the resulting special needs children.  Other families faced pregnancies in which a doctor recommended reduction (another word for termination of some of the embryos or fetuses), but they chose not to follow the advice (and ultimately had to bury several of their babies).

Experts evidently attribute about a billion dollars a year in medical expenses each year to the collateral damage caused by fertility medicine.  If doctors transferred one embryo at a time, the figure would not be nearly this high.

One alternative, of course, would be to take the decision out of the hands of patients.  As I discussed in an earlier post in connection with organ donation, we could decide as a society that people should not be allowed to take steps (such as insisting on their own intact burial) that deprive others of what is rightly theirs.  But many people would find this approach offensive to their libertarian instincts -- if X wants to implant four embryos and has the money to pay for it, the argument goes, X should be able to make that choice.  Doctors, however, have said that patients seem unable to hear the real risks associated with multiple pregnancy and instead hear "Wow!  I could have 2 kids at once and have an immediate pair of children after waiting all these years for one!"

Why do parents not hear the part of the message that focuses on the risks?  Perhaps the problem is with the messenger.  The doctor who tells a patient that multiple embryo transfer carries risks is the same doctor who gets more business for his fertility practice if he can advertise that IVF or IUI success rates are very high (e.g., 50% per trial) than if he advertises that they are lower (e.g., 20% per trial).  Given competition for fertility business -- an extremely lucrative branch of medicine -- it pays for the doctor to convey the risk message in the way that television commercials quietly convey the risks of drugs that they advertise.  If the patient decides to go ahead with multiple transfer, then the patient is more likely to become pregnant than she is to suffer the untoward consequences of multiple embryo transfer (though the odds are nonetheless significant and the consequences potentially catastrophic).

This is a bit like the police officer delivering Miranda warnings.  On the one hand, the officer has a duty to convey to the suspect the fact that she may remain silent and that if she decides to answer questions, there may be serious consequences at her later trial.  On the other hand, the officer is naturally hoping that the suspect will take her chances and answer questions, and even the most ethical police officer cannot help but subtly undermine his own message.  In the case of police, the solution may be a third party giving the warnings, although the Supreme Court will not require this any time soon.  For medical doctors, whose financial interests side strongly with multiple embryo transfer, it may be easier -- in the interests of health care reform -- to require a neutral third party to tell patients precisely what tragedies they could face if they transfer more than one embryo at a time.  A Miranda warning for patients may be just what the doctor ordered (or would have, if she were not conflicted).

Tuesday, October 13, 2009

Spork Puts New Twist on Old Rules/Standards Question

By Mike Dorf

A story in yesterday's NY Times highlights a new battleground for a subject that is familiar to students of jurisprudence: When should the law use rules that leave little room for discretion (and thus risk being both under- and over-inclusive relative to their background justifications) versus standards that confer discretion (which can be abused or used in a discriminatory fashion)?  The Times story concerns school policies that mandate suspensions (or expulsions) for students bringing weapons to school, including items (such as a camping tool that I am inaccurately calling a "spork" in the title of this post) that are not intended to be used as weapons.  It raises many of the relative advantages and disadvantages of rules and standards with which students of jurisprudence are familiar.

Here I'll use the controversy to illustrate a point that is in no way original but that I think is sometimes overlooked by those who generally favor rules: The fact that many norms have rule-like and standard-like features at the same time.  But first a caveat: It is easy to read the Times article and come away thinking that the zero-tolerance policies fail even as rules.  The advantage of a rule is that even though it can misfire in particular cases it nonetheless does better overall than does case-by-case discretion.  But to get an optimal rule is obviously not so easy.  Plenty of rules fail not so much because they are rules but because they are the wrong rules.  A speed limit (rather than a standard of the form "drive carefully") can be too high or too low, for example.  The Times story strongly suggests that the particular rule that resulted in a 6-year-old being sent to reform school for 45 days for bringing a camping tool for show-and-tell is just such a sub-optimal rule.

However--and this is my main point for today--the Times story also should serve as a reminder that judgment is often needed for applying a rule that is clear in some respects.  There seems to be agreement that the zero-tolerance policy makes a student's intent irrelevant.  But then there is the example of a student being sent to reform school for having a knife dropped into his lap.  Even if the rule forbids bringing a knife for show-and-tell along with bringing one to use to back up a threat of force in a lunch-money heist, it is hard to imagine that the rule does not at least require a volitional act.  Moreover, one might think that a rule that forbids knives brought for show-and-tell along with knives brought for mayhem would allow for different punishments.  Think about (what I take to be) the policy of the TSA at airport terminals:  If you have a bottle of water in your backpack, it will be confiscated; if you have C-4 explosive, you will be arrested and prosecuted (I hope).

Or consider the timeless question, what is a knife?  A rule banning weapons from school might include an illustrative list--guns, knives, nunchucks, crossbows, etc.--as well as a sub-list of, e.g., types of knives: switchblades, cleavers, machetes, etc.  But still hard cases will arise.  How about a toy plastic knife?  What about a sword in its case for a member of the school fencing team?  Etc.  As we know from the most famous example in jurisprudence--posing the question of what is a "vehicle"?--the possibility of ambiguity is always latent, even with rules that are clear in many respects.

Monday, October 12, 2009

Bad Apples

By Mike Dorf

With President Obama having been awarded a Nobel Prize mostly for not being President Bush, this is an awkward time for me to promote a new paper of mine that argues, among other things, that President Obama is, in an important respect, similar to President Bush.  The paper, Iqbal and Bad Apples (which will be published in a symposium issue of the Lewis & Clark Law Review), expands upon a point I made in passing in an earlier FindLaw column:  that, in addition to its difficulties as a civil procedure case, the Supreme Court's decision in Ashcroft v. Iqbal lends the Supreme Court's imprimatur to what I call the "few-bad-apples narrative" of mistreatment of prisoners by the Bush Administration.

The paper makes two further points that I would highlight here.  First, I discuss the Obama Administration's decision to investigate and potentially prosecute low-ranking interrogators who committed unauthorized abuses but not the high-ranking officials who created and implemented a policy of equally bad or worse abuses.  I say that this approach ends up confirming the few-bad-apples narrative.

Second, I ask how the few-bad-apples narrative can possibly succeed given the fact that the public record is full of evidence that detainee abuse was ordered from above and that leading Bush Administration officials--especially former VP Cheney--have been publicly touting just that.  My provocative answer is that the few-bad-apples narrative is actually a normative view disguised as a factual view.  In that regard (though certainly not in others), I compare it to Holocaust denial.  (I have a footnote making clear that I'm not comparing Bush, Obama or the Supreme Court to Nazis; I'm just using the best analogy I know to a false factual assertion that functions as a normative claim.)

Friday, October 09, 2009

The Tribute that Vice Pays

By Mike Dorf

In preparation for a Cornell Law School panel yesterday on U.S. v. Stevens, I had occasion to reflect again on obscenity law as set out in Miller v. California.  Here I'll draw a parallel between the two cases.

No, not the obvious one.  Stevens is the case posing a First Amendment challenge to a federal statute that forbids the commercial distribution of films depicting illegal acts of cruelty to animals, with important exceptions modeled on the S Ct's account of permissible obscenity regulation.  The govt defends the law on the ground that the Ct should recognize a category of proscribable speech along the lines of obscenity or child pornography.  Based on the oral argument, that argument appears likely to fail.

I don't have much to add to Sherry's excellent analysis of the stakes in the case, except perhaps to expand on a point she makes.  Under Miller, for material to be obscene, it is not sufficient that it appeal to an interest in sex.  It must appeal to a prurient interest in sex (and satisfy other criteria).  Obscenity law thus works to patrol -- and in an important sense, to define -- the border between normal interests in sex and deviant ones.  That line, interestingly enough, is not about harm.  A person (typically a woman) who is coerced into the production of non-obscene pornography is harmed to a much greater extent than a person who freely agrees to produce obscenity.  The line the law draws here is about the appetites of the people who are interested in obscene versus non-obscene sexual material.

And likewise in Stevens.  The number of animals harmed by dogfighting, cockfighting, crush videos and the other (admittedly repulsive) practices targeted by the law at  issue in Stevens is tiny compared to the billions of pigs, chickens, cows, and other animals harmed by animal agriculture, and it is not at all clear that the illegal cruelty in the former cases is experienced as worse by the animals at issue there than is the legal cruelty experienced by the farmed animals.  Yet the same society that permits farming practices such as debeaking, castration without anaesthesia, and of course, wholesale slaughter, of farm animals, condemns the cruelty of animal fights and crush videos.

The difference, as with obscenity is in the appetite.  Just as obscenity law affirms the normalcy of non-deviant sexual interests, so the law in Stevens affirms the normalcy of animal agriculture.  But of course, given the government's (and society's) enormous investment in the latter, that parallel to obscenity doctrine will not be any help in Stevens.

Thursday, October 08, 2009

Big, Bad, Financial Institutions

Posted by Neil H. Buchanan

In my new FindLaw column, "Financial Market Reform: Two Goals, No Frills" (available later today), I offer a few preliminary thoughts on the big upcoming legislative battle over how to change this country's system of regulating financial markets. I argue against nuance, suggesting that we need to simply say that enough is enough, that there really are such things as financial institutions that are too big and salaries that are too high. I further argue that the new regulatory system should not try to be cute by saying, in essence: "Well, we're not saying too big is really too big, just that big is OK only if the following checklist of safety measures is met." Instead, we should simply choose a plausible way to measure "big" and then set an arbitrary maximum size, forbidding financial institutions from exceeding that size. The same approach should apply to the salaries of those institutions' employees (with the additional issue of possibly limiting the forms in which such compensation may be paid -- stock options, etc.).

In this column, I will offer two further thoughts. First, I will suggest an additional reason that the new financial regulatory law should eschew nuance. Second, I will describe why it is legitimate for the government to "meddle" in the financial markets in the first place.

In the FindLaw piece, my basic argument against a complicated, standards-based approach to determining the maximum size of financial institutions is that size really is the problem. Because we now know that big is too big, we should just say so and be done with it. In addition, however, it is worth noting that the current experience with medical care legislation strongly suggests that the U.S. political system has reached a state where it cannot handle anything that is even slightly complicated.

In my argument this past summer against the so-called Public Option, for example, I argued that Congress could provide better outcomes in both the short run and the long run by carefully and aggressively regulating private insurers than by trying to set up a non-profit insurance company to offer coverage to anyone who might prefer publicly-provided health insurance. The subsequent months have shown that my suggestion, whatever its other merits, assumed incorrectly that it is currently possible to put together a coherent bill that covers a large sector of the economy in a way that handles subtle issues.

This suggests that we might not be able to accomplish anything more than a crude law that says "Big is Bad" -- and even that might be beyond our current legislative capacity. Passing something truly ambitious -- like the Tax Reform Act of 1986, or the Clean Air and Water Acts -- might simply be currently impossible. Fortunately, as I argue in my column, there might well be some advantage in this case to being as crude as the political culture currently requires.

More fundamentally, it is important to think about why it is acceptable to have the government do something so seemingly aggressive as to tell private financial institutions how big they can be and how much they can pay their employees. The answer is simple, and it ties back into my most recent FindLaw column and related Dorf on Law post regarding the "Murphy/Nagel point." Specifically, a government is the necessary predicate to even having an economy, because it creates and enforces the laws of property, contract, etc. that make a modern economy possible.

This means that it is not only meaningless to describe before-tax income as "my money," as Murphy and Nagel demonstrate so well; but it means that any attempt to pass a new law to "regulate" a business is in fact always a matter of changing the existing regulatory scheme that makes it possible to operate that business in the first place, not an exercise in creating regulation where none existed before.

In the case of financial institutions, the role of contract law is especially important, because the fundamental product for sale in financial markets is promises. I have extra money, so I deposit it in a bank in return for the promise that it will pay me interest and return the principal under a certain set of agreed conditions. A bank lends money to a manufacturer, believing that it will be able to collect that money if the manufacturer does not live up to its promise to repay. A stock trader shorts a company by engaging in a series of agreements that must be enforced in the future. Unlike a transaction where, say, I give a kid fifty cents now in exchange for a cup of lemonade now, financial transactions almost by definition involve not current exchanges but promises by at least one party to make future payments.

This means that financial institutions are the least well-situated businesses in the country to say that they merely need the government to get out of their way. Moreover, the extra benefit of limited liability -- essentially, a rule that grants businesses an extremely valuable exception to the rule that they must honor their contracts -- means that businesses are benefiting uniquely from government's rules of the game. (Bankruptcy law is another part of this.) Finally, we now know (as if we shouldn't have known it before) that large financial institutions, and the financial system in general, are so fundamental to economic prosperity that they cannot be allowed to fail. This government-provided insurance puts financial institutions in an even more dependent position vis-a-vis government -- not because the government has induced their dependence, but because the government's rules and guarantees are part of the very foundation of a modern financial system.

That does not mean that any form of regulation is a good as any other. Far from it. It does mean, however, that the way to evaluate proposed changes in the laws governing financial markets is not to say that one approach is "regulation" and the other is "deregulation" or "less regulation." We should weigh each form of regulation on the merits, understanding that the exercise of reconsidering financial market regulation is fundamentally legitimate and appropriate.

Wednesday, October 07, 2009

Incorporation's Penumbra

By Mike Dorf

In my latest FindLaw column, I discuss the Supreme Court's cert grant in McDonald v. Chicago, which poses the question whether the Second Amendment right to bear arms--interpreted as an individual right in DC v. Heller--is incorporated against the states via the Fourteenth Amendment.  After explaining the history of the incorporation doctrine, I argue that for self-professed textualists like Justice Scalia, the doctrine should be problematic: It is hard to argue on textual grounds that the right to possess firearms is incorporated while the right to a civil jury trial is not; and it is equally hard to argue on textual grounds that the enumerated rights of the first eight amendments are (mostly) incorporated but that the unenumerated rights referenced in the Ninth Amendment are not.

Here I want to make another historical observation about the road to and from incorporation.  Judicial conservatives love to mock Justice William O. Douglas's opinion in Griswold v. Connecticut for its rather exotic suggestion that the right to contraception is constructed from the "penumbras" and "emanations" of the Bill of Rights.  These conservatives are right that this language sounds like the sort of thing that a 1960s stoner might say.  E.g., "Dude, the right to sex is like a penumbra or an emanation from the right to remain silent.  Far out."  What the critics of the Douglas opinion in Griswold typically fail to mention is the course of events that caused Douglas to write it that way.

In the years leading up to Griswold, Douglas formed an alliance with Hugo Black, who was, on the leading issues of the day, liberal.  But Black was a liberal whose experience of the pre-1937 Supreme Court led him to believe that judicial review should be cabined by clear texts.  For him, the notion of jot-for-jot incorporation of the Bill of Rights was attractive because, as I say in the FindLaw column, it appeared to constrain judicial discretion.  Black said that the 14th Amendment incorporated the first 8 amendments, nothing more and nothing less.  Douglas, who was, to say the least, not the most highly principled jurist, was happy to join Black's opinions favoring incorporation because they produced liberal results.

But when it came to decide Griswold, Douglas was boxed in.  Having joined the Black decisions saying the first eight amendments were the full measure of the 14th Amendment, he could not now say that the 14th Amendment also included unenumerated rights.  And thus he fudged: He recognized an unenumerated right to contraception, all the while pretending that he was simply reading the enumerated rights.  Hence, he located the right in penumbras and emanations rather than taking the much more straightforward route of saying that the Constitution recognizes unenumerated as well as enumerated rights.

Douglas does cite the 9th Amendment but only after beginning with the claim that "that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."  In substance the Douglas approach does not significantly differ from that of Justice Harlan, who concurred in the judgment but not the opinion.  Both Douglas and Harlan use the enumerated rights as a starting point for extrapolating the unenumerated ones.  But, as Harlan protests in his separate opinion, Douglas seems to say that "the Due Process Clause of the Fourteenth Amendment does not touch th[e] Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights."  In the ensuing years, Harlan's opinion has generally been treated as much more persuasive than Douglas's.

Thus, when conservatives (and even some liberals) ridicule the penumbras and emanations, they are not actually offering a criticism of a view that many self-respecting believers in unenumerated rights hold.  There may well be reasons why, despite the clear command of the 9th Amendment, judges should not recognize unenumerated rights, or should do so with great caution.  But the silliness of the terms penumbras and emanations does not count as such a reason.

Tuesday, October 06, 2009

When Is a Cert Denial News?

By Mike Dorf

Many lawyers familiar with the work of the Supreme Court (including yours truly) share at least one pet peeve: Annoyance at news outlets that report a certiorari denial as though it were a decision on the merits.  It's bad enough when the reportage correctly says the Court "let stand" some lower court ruling, for even then there is a risk that lay readers will be left with the impression that the Justices made a decision on the merits to let the lower court ruling stand.  But sometimes the headline will be plainly inaccurate.

With a new Supreme Court Term just underway, we have a frontrunner for the most misleading/false reports of cert denials.  Consider the following from FoxNews: "Supreme Court Strikes Down Case From Man Claiming to Be Elvis Presley's Son."  The story itself is better than the headline.  It makes clear that the Court denied review of lower court rulings against the putative Elvis, Jr.  But this still raises the question of why this particular cert denial was singled out for any coverage.  Surely it cannot be because the case presents any issue of importance.

If I were inclined to give FoxNews the benefit of the doubt, I would say that this is simply a weird-pop-culture-meets-law story.  But I think it's no accident that the story is listed on the "Politics" section of the FoxNews website.  The political salience of Elvis is not immediately obvious, notwithstanding his well-known meeting with President Nixon.  However, the political message FoxNews conveys by highlighting the Presley cert denial is unmistakable: Frivolous lawsuits are choking the courts, even to the point where the Supreme Court must waste its time on loopy Elvis cases.

Seen in this light, the highly misleading FoxNews coverage of the Elvis cert denial is of a piece with the broader conservative campaign for restricting access to the courts based on a largely nonexistent litigation explosion.  It is extremely doubtful that any Justice spent more than a few seconds thinking about the Elvis petition, and I would be surprised if the cert pool memo took the law clerk more than 15 minutes --at most a 1/2-hour, given that it was probably written over the summer by a new clerk still learning the ropes.

Monday, October 05, 2009

Ireland Says Yes After it Said No

By Mike Dorf

With Ireland's "yes" vote, the Treaty of Lisbon now only awaits final action by the Czech Republic and Poland to become effective.  The impact of full ratification on the EU and its member states is not yet known (though I share the general view of most Europeans from the center left to the center right that this is a step forward).  Here, however, I want to say a few words about the ability of states (whether nation-states or states within a federal union) to vote a measure up after they have voted it down.

I'll begin by noting an oddity.  Under the current EU framework, it is not 100% clear that a member state can withdraw. The Treaty of Maastricht has no withdrawal mechanism, and pursuant to the Vienna Convention on the Law of Treaties, a treaty party can only withdraw from a treaty by invoking a withdrawal mechanism in the treaty or by mutual consent of the signatories.  (Since 2006, Ireland has considered itself bound by  the Vienna Convention.)  Under Article 56 of the Vienna Convention, a party can withdraw from a treaty with no express withdrawal mechanism if the nature of the treaty admits of a right to withdraw, which is probably true of the EU.  But perhaps it isn't true.  Perhaps the EU currently creates, as the U.S. Supreme Court said of the U.S., an indissoluble Union.  In that case, then, oddly enough, by ratifying the Treaty of Lisbon, Ireland makes it easier to withdraw from the EU, because once fully ratified, Ireland and other member states will have a formal right to withdraw from the EU.

Okay, so that's an oddity.  No one is suggesting that Ireland was about to withdraw from the EU.  But note that Ireland got to vote yes after voting no even though it would not have had the opportunity to vote no after voting yes.  That is, once the Treaty of Lisbon is ratified, no member state can say it wants to go back to the pre-Lisbon version of the EU.  That asymmetry looks problematic.  Why should a yes vote supersede a no vote when a no vote can't supersede a yes vote?

The answer, I think, is that the yes vote is supermajoritarian while the no vote is not.  To be sure, to ratify the Treaty of Lisbon, only a majority in each member state's plebiscite is required.  But unanimity of simple majorities is tantamount to a very strong super-majority requirement. So the asymmetry of yes-after-no-but-not-no-after-yes is justified by the fact that it's so much harder for the EU as a whole to vote yes than it is for any single member state to vote no.  The option of a one-way Irish "do-over," in other words, was not simply a way to stack the deck in favor of ratification.

Friday, October 02, 2009

Is it Wrong to be Right for the Wrong Reason?

By Mike Dorf

For those of you who couldn't get enough of the extended mid-August debate on carnism versus veganism (e.g., here, here, here, here, and in the comments and links therein), Brian Leiter has a follow-up (here), in which he opines on the result of a poll conducted around that time by Luis Chiesa.  Chiesa asked the readers of his blog why they were vegans (if they were).  A majority said it was because killing animals is either always wrong or wrong absent exigent circumstances, and that there is no exigent need for animal products for food, clothing or cosmetics.  Only 19% of respondents (which translates into 24% of the vegan respondents) selected the answer that emphasized the unjustifiably cruel treatment of most animals raised for food, clothing and cosmetics.

One can quibble with the choices.  As one comment noted, there is a strong moral case for veganism as one means of mitigating environmental harm to the planet, and thus to humans and non-humans alike; yet that was not one of the options.  I would also note that Chiesa's suffering-based answer had a little preface ("Because although killing animals painlessly is not necessarily wrong") that may have scared off some people who otherwise would have chosen it.  Still, for purposes of this post, I'll assume that the results of Chiesa's poll would more or less accurately reflect the views of vegans.  He did give "other" as one possibility.  Now on to Leiter's observations.

1) Credit where credit is due: Leiter acknowledges that the primary reason I was emphasizing in our exchange--not wanting to inflict unnecessary suffering--is a "more plausible view" than the one he was criticizing.  Prudence would probably counsel stopping there and declaring victory, but I'll go on nonetheless.

2) Leiter also criticizes the roughly 30% of Chiesa's respondents who said that killing animals is always wrong as embracing "an extraordinary proposition."  Presumably the criticism rests on the supposition that even killing humans isn't always wrong.  E.g., it's morally permissible to kill a human in self-defense.  I agree with that supposition, which is to say that I am not a pacifist.  I would have no moral qualms about killing a human or non-human in self-defense (although I'd likely find the experience traumatic).  Thus, I too would not have chosen Chiesa's "always wrong" option.  Still, I want to suggest that it's not entirely surprising that 30% of this self-selected group would choose the "always wrong" option.  Some fraction of these respondents probably just didn't think the question through, but the others might well be pacifists.  I would bet that a much higher proportion of vegans are pacifists than one finds in the general population.  Given that the people we are talking about are also vegans, they are committed to questioning the human/non-human line, and so it's not surprising that their pacifism would spill over into their views of the morality of killing non-humans.  All of that is a long way of saying that given the context, the objection here has to be to pacifism as such.  I'm not interested in defending pacifism, a view I don't hold, but I don't think pacifism can simply be dismissed.

3) Leiter goes on to conclude that the vegans who object to all or most killing of animals as such hold views that are morally abhorrent and/or baseless.  Why?  Because he previously argued that death as such is not harmful to most non-human animals.  If one agrees with that argument, it follows that vegans are mistaken in thinking it morally important to avoid causing the deaths qua deaths of those animals.  The vegans who think it always wrong to kill animals, moreover, would be committed to saying, for example, that it is wrong to kill a rattlesnake about to bite (and thus kill) a defenseless human baby.  That is what Leiter has in mind by a morally repugnant view.

4) Yet in our earlier exchange, Leiter himself acknowledged that his own Epicurean argument leads to the conclusion that death is not a harm to a human infant.  I am tempted to say that people who live in reductio ad absurdum houses shouldn't hurl charges of moral repugnance.  I won't succumb to the temptation, however, because, as I said, I'm not committed to the pacifist view.

5) Nor are most vegans, as judged by Chiesa's poll.  We find that 68% of the vegan respondents to Chiesa's poll easily avoid Leiter's charge of moral repugnance.  The most popular answer--that killing animals is wrong except in exigent circumstances--would clearly allow killing the rattlesnake to save the baby.  Whether, and under what circumstances, it would also allow for killing and otherwise harming animals in scientific research for medicines, etc., is a question that will likely divide vegans in this larger group, as I also noted in our earlier exchange.

6) Of course, Leiter still thinks that the plurality answer--killing animals is wrong absent an exigency--is morally mistaken, though presumably not repugnant.  His conclusion rests on his argument that death is not a harm to most non-human animals (or to human infants), which is, at the very least, controversial (and has in fact been controverted on this blog, e.g., here).  But let's say for the sake of argument that Leiter were right--that death as such is not a harm to most non-human animals (or to human infants).  Would it still follow that the vegans motivated by the wrong reason hold views that are, as he puts it, "morally baseless?"  That would depend on the answer to the question that titles this post.  Or, to put the question somewhat more precisely: Are one's views baseless if they lead to correct results via faulty reasoning?

7) Let's approach that question by an analogy.  Suppose I ask my hypothetical religious friend Steve why he thinks that the deliberate killing of a human being without justification or excuse is wrong.  Steve answers: "Because the Bible says 'thou shalt not kill'."  This reason, I say, is inadequate, because the Bible also says a lot of other things that we think are downright pernicious, such as that adulterers should be stoned to death, a punishment that we now recognize as disproportionate and inhumane.  So the Bible, by prescribing some immoral conduct, cannot be the measure of morality.  If Steve were to insist that stoning adulterers is obligatory, we would have grounds to say that he holds morally repugnant views.  But suppose Steve were instead to say something like this: "I don't accept every prescription in the Bible as literally correct, but where Biblical morality accords with my own strong moral intuition, I follow Biblical morality; otherwise, I interpret the Bible as metaphor."  I think it would be fair to criticize Steve's reasoning under these conditions as flawed: His own moral intuition, rather than the Bible, is doing the real work.

8) However, it would not be fair to criticize Steve's ultimate view that murder is immoral as morally baseless.  If we think there are sound moral grounds for believing that murder is immoral, then those grounds provide a firm moral basis for Steve's view.  It just happens that Steve doesn't realize what the best basis for his view is.  Likewise with respect to veganism.  Even if we grant Leiter's highly contestable claim that death qua death is not a harm for most non-human animals, the people who are vegans because they (by hypothesis mistakenly) believe that death is a harm to such animals have a sound moral basis for veganism (though they don't realize what that basis is) if veganism is morally justified on other grounds, such as anti-suffering or environmental reasons.

I offer the foregoing observations simply in the spirit of clarification of Leiter's argument.  There may well be a usage of the term "morally baseless" that depends on the reasons an actor believes justify his actions, but in ordinary usage (as I understand ordinary usage) the phrase connotes something stronger and, in this instance, unwarranted.