Read My Lips: No Judicial Activism

By Mike Dorf

During his acceptance speech for the 1984 Democratic Presidential nomination, Walter Mondale made the following statement:

Whoever is inaugurated in January, the American people will have to pay Mr. Reagan's bills. Taxes will go up, and anyone who says they won't is not telling the truth. Let's tell the truth -- Mr. Reagan will raise taxes and so will I. He won't tell you. I just did.

That didn't work out so well for Mondale and indeed, it is practically a truism of American politics that promising tax increases--even desperately needed tax increases--is an excellent way to lose an election.  To be clear, I don't think tax increases are needed now.  I'm with Buchanan and Krugman in thinking we desperately need deficit spending right now.  But that's a wholly different point.

Here I want to draw an analogy between the Mondale phenomenon and the ongoing debate over constitutional interpretation.  In my latest FindLaw column, I conclude by drawing a contrast between Justice Stevens (speaking for living Constitutionalists generally) and Justice Alito (speaking for the majority and for formalists more generally) in McDonald v. Chicago.  Stevens, I note, says that some measure of value judgment is inevitable in decisions taken under the rubric of substantive due process, and because he thinks (and I agree) that incorporation of the Bill of Rights is a subset of substantive due process, this means that the majority is relying on substantive value judgments in saying that the Second Amendment is incorporated against the states.  The majority in McDonald essentially says that the incorporation question is one of determining positive law.  It asks a question about the values of the American people (are they "deeply rooted" or "fundamental"?) and thus does not call for judges to use their own values.

In this story, the living Constitutionalists are Mondale and the formalists are Reagan (or as suggested by the title of this post, Bush I).  My fear is that the results have turned out the same in the domain of constitutional interpretation as in the domain of taxes and politics.  One side is saying "we're doing something you don't like, but so are the other guys."  The other side is saying "they're doing it but we're not."  Given this choice, voters (in the case of elections) and citizens more broadly (with respect to judicial role) tend to prefer the second viewpoint.  Why?

If the public clearly understood that taxes do need to go up sometimes or that judging inevitably involves some element of subjective judgment, then they would presumably prefer the truth-tellers to the dissemblers.  However, economics and law are both sufficiently technical and mysterious to the uninitiated--and in both fields experts take a wide range of views--that the public who want lower taxes or judges who will simply "apply the law objectively" can choose to support the politicians and prospective Justices who tell them what they want to hear.

Interestingly, Democratic nominees for elective office and to the Supreme Court are beginning to learn the Mondale lesson.  It's true that Obama ran for President planning to raise taxes for high earners, and even that opened him to the charge that he would "raise taxes," but he could successfully counter by repeatedly emphasizing that he would not raise taxes on the middle class.  Meanwhile, both then-Judge Sotomayor and, based on the first couple of days of hearings, SG Kagan, have taken something like the formalist line that as Justices their job is to put their own subjective views aside.

Now there is a sense in which this is clearly right and even banal: Where one's values conflict with the law, a judge must follow the law rather than her values.  (I'm assuming the entire legal system isn't evil.  In that circumstance, a kind of judicial civil disobedience might be warranted.  Robert Cover wrote about this phenomenon with respect to slavery and Ronald Dworkin addressed the issue in the context of non-Nazi judges in the Third Reich.)  But of course, the issue more commonly arises in cases in which the law does not provide a clear answer.  As to those cases, the liberal/realist position is that judges can't help but give vent to their values, to some extent. The conservative/formalist position is that the judge's subjective values don't properly play a role even in those cases.

If current trends continue, we will eventually have a Court filled with two classes of Justices: 1) formalists who say that their values don't influence their decisions, and they may even believe that, but if so they will be mistaken; and 2) living Constitutionalists who think that every judge's values play an irreducible role in judicial decision making but had to hide that view to get confirmed.

Race and Guns

By Mike Dorf

Last year, in Ricci v. DeStefano, Justice Alito wrote a truly remarkable concurrence in which he painted a picture of ugly racial politics in New Haven (as I observed here).  That concurrence--and more generally Justice Alito's votes on race cases--placed him squarely on the side of those white Americans, especially those Italian-Americans, who take the view that race-conscious government decision making has gone too far.  Justice Alito called attention to a statement by an African-American New Haven minister who opposed promoting some of the white firefighters because "they just have too many vowels in their names."

What a difference a year makes. In Justice Alito's opinion for the Court in McDonald v. Chicago, race is a predominant theme.  The crucial portion of the opinion is Part III, in which Justice Alito applies the test for determining whether the 2nd Amendment right is incorporated.  And the core of that portion of his analysis is a discussion of how, in the wake of the Civil War, white Southern governments attempted to disarm African Americans, many of them returning to their homes after having served in the Union Army.  Thus, Justice Alito argues, a central purpose of the Fourteenth Amendment itself was to confer the right to keep and bear arms on African Americans.  (He makes other arguments, of course, but I think I'm reading the opinion fairly in saying that this one plays a key role.)  Moreover, in recounting the facts at the beginning of the opinion, Justice Alito emphasizes that the eponymous plaintiff, Otis McDonald, "lives in a high-crime neighborhood" and "is a community activist" who has faced "violent threats from drug dealers."  Justice Alito does not say that McDonald is African American, but he pretty clearly implies as much, and in fact, McDonald is African American.

So, has Justice Alito come around from foe to friend of the black community?  Hardly.  I'm sure that Justice Alito would say that he was never a foe of African Americans; he is simply skeptical of race-conscious decision making of the sort at issue in Ricci and other cases, in substantial part because it reinforces racial divisions and stereotyping.  By contrast, McDonald is not a race case at all.  The doctrinal point of Justice Alito's invocation of the history of disarmament of African Americans is simply that it informs the original understanding--and thus the contemporary meaning--of the Fourteenth Amendment.

Yet it is also plain that Justice Alito is trying to gain some normative value out of portraying gun possession as a civil rights issue.  For example, in explaining why the Court's 1875 decision in U.S. v. Cruikshank does not have binding effect, he provides the historical context: The Court, in reversing a conviction for the interference with civil rights, denigrated the right to arms possession as a way of assisting the white perpetrators of the Colfax Massacre in getting away with murder.

I'm happy to acknowledge that the history Justice Alito cites is real--although there is also evidence that some of what the Framers of the original 2nd Amendment were trying to do was to preserve state militias against nationalization precisely so that they could be used to put down slave revolts.  It's also true that there are law-abiding African Americans, like Otis McDonald, who want to be able to own firearms to protect themselves against armed criminals.  But all that said, it is at least a bit jarring to see Justice Alito wrap himself and the Court in the mantle of civil rights warrior when he is voting to strike down state and local handgun control laws of the sort that law-abiding African Americans themselves tend to support.  I'm not saying that makes the Court hypocrites or racists or anything of the sort.  I am saying that this somewhat subtle playing of the race card seems a bit rich.

Grade Inflation

By Mike Dorf

A recent NY Times story reports on how many law schools are inflating their grades in the hope of providing their students with a competitive edge relative to their competitors.  For me, the story reinforces a point I have long made in internal discussions of grading on each of the three faculties of which I have been a member: The fight against grade inflation is a bad idea because it disadvantages our students.  Here I'll add a few observations.

1) Grade inflation driven by efforts of law schools to give their respective students an edge is a collective action problem: individually rational decisions to raise grades eventually end up making grades virtually meaningless everywhere.  But prospective employers--rightly or wrongly--want law schools to sort their students, and if not given grades, they will turn to other, often less effective, more subjective, and potentially unfair methods.  The traditional way to address a collective action problem is through regulation.  In principle, the ABA as accrediting body or the Association of American Law Schools (as membership organization) could promulgate a curve to be followed by all law schools, but this would be deemed deeply intrusive into law school governance, so it seems unlikely.

2) Given the imperatives to compete, one might ask why there isn't even greater grade inflation.  Based on what I've heard from colleagues, I think there are two main answers.  First, some faculty believe that a tough grading policy is needed to motivate students.  Second, other faculty have in mind a Platonic idea of grades.  Certain papers are, to their minds, inherently worth a grade of B, or C+, or whatever, and a system that converts such papers into an A- is essentially corrupt.

3) I think that the incentive effect is real, and I confess to operating with something like the Platonic view in my mind, even though I realize it ultimately doesn't make sense, but I think there is another kind of reason in play: Workload.  Giving relatively low grades benefits faculty.  Students looking to preserve their GPA will avoid professors who give low grades, meaning that classes will be smaller, with fewer exams to grade.  In addition, with fewer students earning high grades, there will be fewer letters of recommendation to write.  The downside, however, is that excellent students may think they have the most to lose from taking courses taught by notoriously low graders.  Another downside comes from ego rewards: Faculty are vain and like to believe their courses are popular.  Giving high grades can boost popularity.  Interestingly, most of these effects operate within a school, so they are canceled by a mandatory curve, whatever the curve is relative to other schools.

4) The Times article notes that the University of Chicago has tried to help its students by using an inscrutable grading system: Students know the meaning of the different grades but employers reviewing cv's from multiple schools often don't.  This is almost as good as a proposal I once made in a faculty meeting: That we should have 5 grades.  They would be: A, A,A, A, and A, with each different font corresponding to a different level of achievement.


5) I wrote all of the foregoing points on Friday and then noticed on Sunday another story in the Times, this one about how high schools are now producing 5, 7, 9, even 20 valedictorians per school, due to high grades.  This leads me to think that my font plan will need to be implemented in about 4 or 5 years, when law students begin arriving never having had the experience of getting less than the highest grade in the class.

Double Dip a Done Deal. D'Oh!

-- Posted by Neil H. Buchanan

Let me begin with a sincere (but resigned), "I hope I'm wrong." Economic forecasting is a dangerous business, especially for someone who is a natural pessimist. To adapt an old joke, I have successfully predicted nine out of the last two recessions. Even so, all of the pieces now seem to be in place for what we have feared all along: a policy-induced relapse into a second bout of recession, without ever having emerged from the Great Recession. In this post, I will explain why this sorry outcome now seems inevitable, what could be done to stop it, and what should be done after we fail to stop it.

Although there has been some encouraging news about the economy over the last few months (e.g., auto companies skipping their summer shutdowns), there is no question that the situation is still quite bad. The unemployment rate still hovers just below 10%, with the real rate of involuntary idleness well above that. Even so, given that unemployment is a lagging indicator (and taking account of oddities like the measured unemployment rate rising briefly in the face of optimistic economic news, with suddenly-encouraged workers flooding back into the job market), it might have been possible to argue that the economy will continue to recover and ultimately bring jobs back with it.

Maybe. Even the CBO's forecasts, however, predict that unemployment will stay above 8% through the end of 2012. Eight percent! Even in the 1980's, before we experienced years of unemployment in the 4-5% range, Reagan's apologists would only dare suggest that 6-6.5% was the "natural" rate of unemployment. This is, in other words, already a situation in which we have been told to expect years of above-normal joblessness, leading to economic and human damage not seen since the 1930's. Moreover, much of the rest of the economy seems already to be moving in the wrong direction. Earlier this week, for example, we learned that the economically-essential housing sector has never been weaker, with the lowest rate of new home sales on record.

In the face of that (at best) mixed picture, what is happening to economic policy? The Fed has announced that it is standing pat on monetary policy. Chairman Bernanke has admitted that he thinks that the economy is weakening and should be given some serious monetary stimulus. but he and his colleagues are afraid to "spook the markets." (Paul Krugman's columns over the past few months have included some especially trenchant observations regarding the bizarre logic of catering to hypothetical financial market jitters.) Fiscal policy is a disaster. Last year's much-too-timid stimulus will soon run out, with "centrist" Democrats (and, of course, all Republicans) refusing to do anything serious now.

Yesterday, all of the Senate's Republicans (plus Ben Nelson of Nebraska) blocked a bill extending unemployment benefits to 1.2 million long-term unemployed citizens, along with aid to states and cities that is necessary to forestall laying off hundreds of thousands of teachers, police officers, and other essential government workers. Even if (as is likely) some kind of compromise is reached on the extension of unemployment benefits, the amounts have already been reduced. Moreover, with the Fall elections a bit more than four months away, the opposition party has clearly decided that it is better politically to oppose all spending proposals going forward.

As insane as all of that is, the politicians in other countries seem to be even crazier. The new government in the UK has announced across-the-board 25% cuts in government spending. The German government takes pride in refusing to respond to recession with stimulative policies, in a sort of Protestant-ethic-meets-masochism celebration of self-imposed damage. Being part of the euro zone has forced many countries to adopt drastic measures to cut spending and raise taxes, even in the face of unemployment rates reaching into the 20% range.

In short, there is no prospect of help from consumers (who are scared of losing their jobs, or who have lost them already and will soon have reduced or nonexistent income support), business investment (because no sensible business would spend money to expand in this economy), government spending ("cut the deficit!"), or exports (notwithstanding China's mild moves toward adjusting its currency).

What could we be doing? President Obama surprised me recently by trying to convince other world leaders to stop enacting self-destructive policies, but his timidity and tardiness on the issue is now coming back to haunt him (and the rest of us). Really, there is no mystery about what we could or should be doing. Reverse course on fiscal and monetary policy. Make job creation the central goal of economic policy. Educate the public about the important of increasing deficits during bad economic times. Save states and cities from fiscal implosion.

We will not, of course, do any of that -- at least, not until things turn very ugly once again (and maybe not even then). If the ensuing crash does not lead to, in the sinister words of a current U.S. Senate candidate, "second amendment-type solutions" -- in which case we will have much bigger things to worry about than spooking financial markets -- then we will have to dig out of an even bigger hole. That will require even more deficit spending, of course.

I wish I could end on a joke. I cannot. Again, I really hope that I am wrong.

Content

By Mike Dorf


Monday's decision in Holder v. Humanitarian Law Project (HLP) is, of course, most notable for upholding the federal "material support" statute against a First Amendment challenge, but in the course of getting to that result, the majority opinion by CJ Roberts says some things about free speech doctrine more generally that will likely have the effect of broadening protection for free speech.


A threshold point of contention was whether the law should be judged as content-based (and thus subject to strict scrutiny) or content-neutral (and thus subject to what is nominally intermediate scrutiny but under the SCOTUS precedents amounts to a test that is fairly easy to meet).  The government argued that the law should be deemed content-neutral because it is a regulation of conduct--here, material support--that is often non-expressive (e.g., providing money, goods, or services to a terrorist organization) and only happens to be expressive in this particular case.  Not so, said CJ Roberts.  He noted that strict scrutiny applied in Cohen v. California, even though Cohen was charged under a breach-of-the-peace law that applied to conduct regardless of whether it was expressive in the particular case.  (Cohen wore a jacket that said "Fuck the Draft" on it.)  According to the Court in HLP:  "The law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message."


As Eugene Volokh notes on his blog, this analysis appears to be inconsistent with prior doctrine defining a content-based law by reference to the law's terms, not the particular conduct that is alleged to infringe it.  I agree and I would note that there is a genuinely difficult puzzle here about how to go about defining what counts as content-based.


The HLP formulation strikes me as too broad, as a hypothetical example should illustrate.  Suppose a statute that makes someone guilty of murder if he "intentionally causes the death of another human being without justification or excuse."  Now suppose that a mob boss is accused of murdering a rival by instructing one of his henchman as follows: "Make sure that Don Tattaglia sleeps with the fishes."  Following the communication of this message from boss to henchman, henchman kills Tattaglia and dumps his body in the river.  We could say, using the HLP formulation that the murder law may be described as directed at the conduct of murder, but as applied to the mob boss, the conduct triggering coverage under the statute consists of communicating a message.  It seems plainly crazy to subject the murder law to strict scrutiny; yet that seems to follow from the opinion of CJ Roberts in HLP.


There are two ways in which the foregoing hypothetical could be tamed.  First, we might note that the murder law will undoubtedly survive strict scrutiny, so there's ultimately no harm in subjecting it to strict scrutiny.  But this answer, I think, misses the point.  Suppose that the mob boss ordered his henchman to commit a less serious offense, such drug trafficking.  It's not obvious that our drug laws could survive strict scrutiny because they arguably do more harm than good (in creating a black market, fostering violence, etc.).


That leads to the second possible escape hatch: Perhaps any crime committed by a speech-act would fall within the unprotected category of speech identified in Giboney v. Empire Storage. As most recently elaborated in the Stevens case, that category consists of "speech integral to criminal conduct."  Okay, then, suppose that the mob boss gives instructions to his henchman to commit tortious but non-criminal acts.  Now does strict scrutiny apply?


To be clear, I am not saying that the Court was wrong to apply strict scrutiny to the material support law.  I am saying that the Court's definition of content-based laws seems quite broad.


Meanwhile, there are difficulties in the other direction as well, which may explain why the Court errs in the direction it does (and note that there is no dissent on the point I'm discussing).  Suppose a state university adopts a rule forbidding students, staff, and faculty members from storing explicitly sexual computer image files on university-owned servers, even if the images are not legally obscene.  Now suppose that the rule is challenged and so the university changes its policy: It adopts a broader policy forbidding "misuse of university property," and disciplines students, staff, and faculty members for storing pornography on the university servers under the broader policy.  I can see upholding the porn policy on its own as a legitimate outcome, but it's very difficult to justify subjecting the porn-only policy to a higher level of judicial scrutiny than one uses to evaluate the porn-as-misuse approach.


What all of this may show is that the distinction between content-based and content-neutral regulations of speech is simply too blunt to capture the real stakes in many free speech cases--a point that my colleague Steve Shiffrin has made for some time.

Custody, Prison, and Pretense

By Sherry F. Colb

In my FindLaw column for this week, I discuss the Supreme Court's decision in Maryland v. Shatzer.  The respondent in the case, Michael Blaine Shatzer, Sr., was convicted of sexually abusing his three-year-old son.  He challenged the conviction on the ground that the trial judge erroneously ruled his confession admissible, in violation of his right to counsel.  His argument was that he gave his confession in response to an interrogation that should never have taken place.  Under Edwards v. Arizona, a suspect in custody who asks for a lawyer may not be further interrogated by law enforcement officials unless and until the suspect has an attorney with him.  This means that if the police come back to the suspect at a later point, while he is still in custody, and seek to interrogate him, any responses to that interrogation will be suppressed (warnings and waiver notwithstanding) unless the suspect himself initiated the conversation with the police.

With this law in the background, lower courts decided on their own to recognize a "break in custody" exception to the Edwards rule.  The exception permitted police to re-approach a suspect in custody who had previously invoked counsel if there had been a "break in custody" between the prior invocation of counsel and the current approach.  How might this exception apply to Shatzer?

In Shatzer's case, the police approached him two-and-a-half year after he had invoked his right to counsel, but he had been incarcerated in prison (for a different sexual crime) in between the two interviews.  The Supreme Court thus faced the following two questions:  Is there a "break in custody" exception to Edwards, as lower courts have assumed?  And if there is such an exception, does it apply even when the suspect has never left the penitentiary?  The Court answered "yes" to both questions and found that because Shatzer was living in the general prison population (rather than being held separately for interrogation) for more than two weeks, the Edwards presumption did not apply, and the police could re-approach him with Miranda warnings.

In my column, I discuss the Court's reasoning and conclude that the outcome may be correct, but the reasoning is flawed.  Specifically, I propose that the notion that a person incarcerated in prison is free of custody -- able to socialize and get advice from friends, as the Court suggests -- blinks reality.  In this post, I want to suggest that the Court's indulgence in such fiction is not unique to the Miranda context.

Another area in which one can find fiction deployed is the death penalty context.  There, the Supreme Court has repeatedly announced its fidelity to the principle that the government may not impose "cruel and unusual punishments" and that, consequently, executing people in a manner that is torturous or extremely painful violates the Eighth Amendment.  Yet the Court has upheld the administration of lethal injection, as practiced in most states, as a form of execution.

"But isn't lethal injection the most humane method available?," readers might object.  This is many people's reaction to the charge that lethal injection is cruel.  We imagine a person lying on a gurney and receiving an injection that makes him fall asleep forever.  What could be more humane?  Indeed, isn't this the sort of death that people seeking physician assistance in dying pray for?

That depends on what is injected into the person's veins.  If we gave the prisoner an overdose of heroin to end his life, that death would be humane.  Barring the use of a recreationally-abused drug, if we gave the prisoner an overdose of a barbiturate -- a sedative -- that death too would be humane (to the extent that any unwanted death can be characterized as "humane").  The lethal injection in most states, however, includes administration of three drugs in succession -- first a barbiturate, second a paralytic, and third a drug that causes cardiac arrest.  It is useful to know that everyone concedes that if the first drug -- the barbiturate -- were omitted, the lethal injection would be excruciatingly painful, involving both suffocation (because of the paralytic) and then cardiac arrest (which causes great pain to a conscious patient).  So the "humaneness" of lethal injection, as administered in most states, turns entirely on proper administration of the first drug.

The problem is that the people who mix the drug (by following instructions) are not trained experts, and there is therefore sometimes insufficient barbiturate administered to the prisoner to last until the prisoner's death.  Once the second drug -- a paralytic -- is administered, however, the prisoner who regains consciousness is unable to speak or move or otherwise register the fact that he is now conscious.  Imagine becoming conscious during surgery while remaining unable to speak or even move your face -- the surgeon would have no idea that you can feel the scalpel cutting into your body.  The paralytic can thus cause the sensation of suffocation without allowing the prisoner to evidence that sensation to those witnessing his execution.

The third drug then causes cardiac arrest, which eventually results in death but in the interim is terribly painful for a conscious person.  Yet the second drug continues to make movement -- and thus complaint or even grimacing -- impossible.  The prisoner may thus die with a peaceful look on his face while he experiences invisible agony.

In his opinion in Baze v. Rees, Chief Justice Roberts does not deny that this may happen to prisoners on occasion but says nonetheless that "Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States," adding that "[i]f administered as intended, that procedure will result in a painless death."  But "believing" something is humane does not make it so, and the "intent" of those who designed the procedure has little bearing on what occurs when predictable (but undetectable) errors are made in carrying out the complicated protocol.  To the argument that the paralytic serves no therapeutic purpose, the Court responds in part that the paralytic helps preserve the "dignity" of the proceedings by preventing convulsions and involuntary movements by the condemned.  But how "dignified" is it to die in excruciating pain without the ability to cry out?

It seems, from Chief Justice Roberts's discussion of lethal injection and from the Court's suggestion in Shatzer that prisoners in a penitentiary are not in "custody" (because they can supposedly interact with friends and get advice), that as long as the Justices can close their eyes and pretend something false is true, that is enough to satisfy their legal and moral obligations.  And the fact that few Justices see the inside of a prison -- and no one witnesses the pain of a person undergoing execution -- simply helps the illusion along.

In marveling at people's capacity for self-deception and willingness to participate in cruelty that is carefully hidden from view, I cannot help but note the obvious implications for people's consumption of animal flesh and secretions and the belief in the myths of "humane treatment" and "humane slaughter" that made that consumption possible. I will leave further discussion of that implication for another day, but it does bear mention here.  To paraphrase Upton Sinclair, it may be difficult to get people to understand something when their ability to sleep at night depends on their not understanding it.

Confirmation Symbolism

By Mike Dorf

A Supreme Court Justice can be expected to serve for decades; yet questions from Senators inevitably focus mostly on the here and now.  The resulting myopia can be accentuated by accidents of timing.  Consider the Sotomayor hearings.  The case most discussed by Sotomayor's interlocutors was Ricci v. DeStefano.  It's easy to see why the case made such good theater: 1) It involved race/affirmative action, which Sotomayor and Dems generally support, while Repubs and most Americans oppose it (though public support/opposition varies a good deal depending on how it's described by pollsters); 2) the Supreme Court opinion in Ricci directly reversed a ruling by Judge Sotomayor; and thus 3) the case gave Repubs their best opportunity to portray Sotomayor as a militant practitioner of identity politics, combining her vote in Ricci with the "wise Latina" remark.

That was good tv, to be sure, but Ricci is simply not a very important case.  Its holding--that the deliberate rejection of an employment screening device to avoid a mere hypothetical disparate impact lawsuit gives rise to a disparate treatment claim by the people who would have benefited from the selection device--is unlikely to have much practical impact going forward because: 1) employers can accomplish much the same thing without triggering a Ricci lawsuit by doing a better job of predicting the effects of their selection devices before using them; and 2) where there is a more substantial fear of a disparate impact lawsuit, employers can scrap an already-administered selection device, even under the Ricci test.  Thus, Ricci's role in the Sotomayor hearing was grossly inflated, relative to its actual doctrinal importance.  Its chief use was symbolic.

Looking forward to the Kagan confirmation hearing, which begins on Monday of next week, it is relatively easy to see how two cases will likely play an outsized role in her questioning: McDonald v. City of Chicago and Christian Legal Society v. Hastings.  Neither case has been decided.  There are only two days remaining on the Supreme Court calendar for handing down opinions: this Thursday, June 24, and next Monday, June 28, the very day the Kagan hearing commences.  Thus McDonald and CLS will be very much in the public consciousness as Kagan's hearing gets under way.

Both cases also potentially play to the picture of Kagan that at least some Republicans (Senator Coburn, for sure; others unclear) will likely try to present: liberal-out-of-touch-ivory-tower-elitist-anti-military.  Kagan's enforcement as Harvard Law School dean of the school's non-discrimination policy led her, like just about every other law school dean in the country, to keep military recruiters officially off-campus, at least until the Supreme Court's decision in FAIR v. RUMSFELD upheld the Solomon Amendment.  That stance (commonplace and relatively tepid though it was), will put both CLS and McDonald in play.

Consider the CLS case (about which I wrote a column here, as well as blog entries here and here.  That last link points to an exchange between me and Michael McConnell, who is representing the Christian Legal Society.  His main brief can be found here.  I am the principal author of an amicus brief for the Association of American Law Schools supporting Hastings). Like the Solomon Amendment dispute, the CLS case pits a law school administration enforcing a policy aimed at protecting LGBT students from discrimination against people and institutions that have enormous power in the larger society but tends to be under-represented on elite campuses--especially in places like Cambridge and San Francisco.  In CLS, the group consists of socially conservative Christians, while in the Solomon Amendment dispute it was the U.S. military.

The relevance of McDonald to Kagan's hearing is not as immediately obvious.  I expect the Court to hold--probably 5-4--that the Fourteenth Amendment makes the individual right to own and possess firearms protected by the Second Amendment applicable to states and municipalities.  Now Kagan has not, to my knowledge, said much about the Second Amendment.  Her academic writings say nothing about the substance of the provision; in her last confirmation hearing, she said she accepted the authority of the Heller case (really, what else would she say?); but as a law clerk for Justice Marshall she wrote that she was "not sympathetic" to a Second Amendment argument.  Of course, at the time, neither was the law, and there's no reason to think that Kagan was saying anything other than that, but if you're a Republican Senator looking to say something to fire up the folks back home, you could do worse than to suggest that the 1987 law clerk memo shows Kagan's true colors as an anti-gun liberal.

None of this would be fair, or even logically coherent.  After all, the argument against the result in Heller is that the right to use guns is restricted to the military context, so it's ridiculous to say that disagreement with the result in Heller (if it could be imputed to Kagan, which it cannot be, in all fairness), connotes opposition to the military.  But to repeat: These hearings are not about logic or even about predicting how a nominee will vote if confirmed.  They're about symbolism.

Blaming the Boomers

-- Posted by Neil H. Buchanan

My latest FindLaw column (available here) revisits the controversy over the Rand Paul interview on "The Rachel Maddow Show" last month. Although I initially described my reactions in a Dorf on Law post (here) shortly after the interview, my analysis on FindLaw focuses on two issues: (1) The incorrect subsequent framing of the controversy as a pointless rehash of a long-resolved policy debate from 1964, and (2) The disturbing underlying similarity (despite large apparent differences) between Paul's view of business regulation and President Obama's view. I will expand only on the first point here.

In my column, I refer to an opinion/analysis article (available here) in The New York Times by the political reporter Matt Bai. I cannot recall any of Bai's other articles at the moment, but I had developed a generally positive opinion of his work over time. His article about the Paul/Maddow controversy, however, was something else. Describing it as "fatuous" was not something I did lightly.

The article took two then-brewing controversies -- the Paul/Maddow interview, and the Times' revelation of Connecticut Senate candidate (and current Attorney General) Richard Blumenthal's false claims that he had served in the Vietnam War -- and clumsily tied them together by noting that they are both about things that happened in the 1960's. Why is that a big deal? Because, Bai argues, the Baby Boomers' political sensibilities were supposedly permanently warped by the issues of the 1960's, which makes the Paul and Blumenthal controversies just so much group therapy for the former Flower Children. Paul and Blumenthal were thus "sucked into the vortex that pulls us inexorably back to the 1960s."

It gets better/worse: "Mr. Paul, meanwhile, found himself hurtling into the past when, responding to questions from Rachel Maddow on MSNBC, he expressed philosophical reservations about the 1964 Civil Rights Act, specifically the provision that forced private businesses to integrate." Get it? Not only was he thrown into the past to have a debate that is long since over, but he merely expressed "philosophical reservations" about the public accommodations provisions in the Civil Rights Act. Why are Baby Boomers so unwilling to have debates about practical issues of current import?

As I argue in my column -- and as I would have thought was obvious to anyone who pays even modest attention to public affairs -- Paul's position is much more than philosophical, and it very much affects the present. His position, after all, is that governments have no right -- none -- to set the rules by which businesses may interact with the public. In fact, government has no right, under this view, to regulate businesses at all. A small fraction of the public endorses that view, but reaction to Paul's defense of BP (including the observation that "sometimes accidents happen," without any acknowledgment that accidents must be dealt with and responsibility assessed, in order to reduce the likelihood of future accidents) is only part of the evidence suggesting that most people want government to do most or all of the things that it currently does. True, they have been convinced that they should be upset about abstractions like "spending" and "deficits," but they repeatedly demonstrate that they like having their governments do exactly what Paul says they should stop doing. Even if I am wrong about the public's views, the debates over those questions -- including civil rights issues, but extending to broader business issues as well -- are in the here and now.

I will engage in a bit of jujitsu here and suggest that Bai's column represents a tendency among some post-Boomers to view the world through a lens that is distorted by their obsession with, and resentment of, the Baby Boomers. Because I study Social Security policy, and because I am engaged in ongoing projects studying justice between generations, I probably see this more than most people do; but there is definitely a "blame the Boomers" meme out there that is fed by columns like Bai's.

In part, this is merely the latest in a timeless series of younger generations blaming their parents and grandparents for everything. People a bit older than I am were told not to trust anyone over 30, and there are references to this kind of generational conflict stretching as far back as classic Greek writings.

This inevitable pattern of conflict between parents and children is intensified, however, by the sheer size of the Baby Boom. Post-Boomers have been convinced (quite incorrectly) that the Boomers will be too numerous (and too greedy) to support in their retirement, which can lead to rather extreme resentment toward people over 45. The Post-Boomers' fear is further fueled by the possibly distorting effect on politics of a growing cohort of elderly (high-turnout) voters.

If the Boomers were really so self-seeking, however, it would be difficult to explain why both U.S. political parties have bought into the highly contestable view that Social Security is "broken" or "in crisis" and needs to be fixed as soon as possible, rather than simply lavishing more benefits on the Baby Boomers. Even if one thinks that the Boomers should be doing more for their children and grandchildren than they already are, it is certainly true that the political trends are moving against expanding benefits for oldsters (and that those benefits are not currently as high as they could be).

The Post-Boomers' legitimate complaints about environmental and energy policy, by contrast, have nothing to do with the relative size of the generational cohorts, other than there being a larger number of people who are failing to use public transportation than there would be if the birth rate had not surged from 1946-64. The Baby Boom's failures in these crucial areas of policy are tied to poor decisions and missed opportunities, not in supposedly failing to shield Post-Boomers from the effects of their grandparents' fecundity.

Even so, our current version of the Generation Gap has definitely taken root in political discussion. It is often quite benign, but when it is used as a means of trivializing an extremely important political debate -- a debate, moreover, that will surely affect the civil and economic rights that Post-Boomers and their children will ultimately inherit from my generation -- it is perverse and dangerous.

Scalia Outflanks the Court on the Privacy Side

In Ontario v. Quon, the Supreme Court unanimously held that the police department of Ontario, California acted reasonably--and thus did not violate the 4th Amendment--when it retrieved private text messages sent by one of its employee officers from his department-issued pager (including some sexting) in order to determine whether overage charges from the service provider were properly billable to the department or should be charged to employees.  The Court is unanimous in the result and unanimous in most of its reasoning, except that Justice Scalia doesn't join one sub-Part of Justice Kennedy's majority opinion.


This time, the language Justice Scalia finds offensive does not invoke legislative history (as discussed here) but Justice Kennedy's broader disquisition on the role of the Court in deciding 4th Amendment cases involving new technology.  Here is the core of the point Justice Kennedy makes:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360–361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Justice Scalia objects that the majority's concern is "exaggerated."  Here is his defense of a more robust judicial role:

Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication, ante, at 10, that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.

Here are three observations about this tiff:


1) It's striking that Justice Scalia is outflanking the Court to the left, without any of the supposedly liberal Justices joining him.  One could readily imagine this language having come from Justice Brennan or Justice Marshall in response to what either might have regarded as a too-feeble judicial effort from CJ Burger or CJ Rehnquist.


2) Although directed at an opinion by Justice Kennedy, I read Justice Scalia here as really taking aim at CJ Roberts' stated preference for minimalism.  As a technical matter, there isn't any real space between what Scalia says here and what Roberts says elsewhere: Channeling Henry Friendly, Roberts says that if it's not necessary to decide an issue, it's necessary not to decide that issue; Scalia here purports to be criticizing only those judicial opinions that don't decide issues that it is necessary to decide.  But still, the tone is very different from the one Roberts has generally struck--and of course Roberts joined Kennedy's opinion.


3) Justice Kennedy's approach closely resembles the argument set forth by GW law prof (and former Kennedy clerk) Orin Kerr in a 2004 article in the Michigan Law Review (pre-publication version available here).  Kerr offers reasons why the judiciary is poorly suited to craft privacy protections relative to the legislature.  His argument is nuanced and subtle--which is not to say that it is necessarily right.  Cornell law prof and DoL blogger Sherry Colb wrote a reply in the same Michigan Law Review (not available free online but readily available from Westlaw, Lexis or Heinonline, at 102 Mich. L. Rev. 889) arguing that Kerr's interpretation of the 4th Amendment focuses too heavily on property, that he presents a false choice between courts and legislatures, and that there are institutional reasons why legislatures might under-protect privacy. I'm not going to referee their debate here, but I will say that it's unfortunate that the Justices didn't cite it.  Perhaps neither Justice Kennedy nor the law clerk(s) who worked on the case for him had read Kerr's article.  If they did, though, citing and invoking the argument would have made Kennedy's own opinion more solid.  And in turn, Justice Scalia might then have invoked Colb's analysis.  Instead, we have an exchange of views that mostly amounts to competing assertions.  Judges often complain that legal scholarship is not relevant to their work--but for this complaint to have bit, one would like to see them citing relevant legal scholarship where it is helpful.

The Mystery of LPs

By Mike Dorf

There is a wonderful scene in Dan Kennedy's hilarious memoir of his brief stint as a middle manager in the record industry during its collapse--Rock On: An Office Power Ballad--in which Kennedy succinctly describes the problem facing the industry, even without the worry of free file sharing: With individual songs available on iTunes for 99 cents apiece, the record labels could no longer charge $15 for a CD with two songs that listeners wanted to buy and ten or so others that they had to buy to get those two.

That struck me as a trenchant analysis, until I started thinking about an earlier transition.  In my youth, popular music came packaged mostly as albums: eventually as CDs but before that as vinyl LPs that spun at 33 and 1/3 rpm and played about 22 minutes per side.  But not that much earlier, pop music typically came packaged as "singles"--a misnomer because each 45 rpm record had both an A-side, featuring the song listeners wanted to buy, and a B-side, featuring less popular songs.  It was also a package, but one sold on much more favorable terms to the listener than the LP package that replaced it.

But here we have an apparent economic mystery.  If listeners really only ever wanted the A side of a 45 or two of the twelve songs on an LP or CD, then they shouldn't have been willing to pay anything extra to get the B side or those ten worthless songs.  Record companies should have been able to charge the monopoly price for the desired songs, whatever that was, without extracting a premium because they included additional unwanted songs.  And yet, the very fact that the industry substantially shifted from 45s to LPs leads me to think that they were able to extract additional money for the additional songs.

That, in turn, leads me to think that those extra songs had some value to listeners.  (LPs also had an obvious advantage relative to 45s and 78s for listeners of works of classical music and other genres that could fit on a single LP but required multiple disks in the other formats.)  And indeed, LPs and 45s coexisted for quite a long time during which LP albums were sold as having value beyond the value of the individual songs they contained.  And that was not simply a matter of marketing.  There really are only a few great songs on Abbey Road (Come Together; Something; Here Comes the Sun), but the other songs work together to create a whole that is greater than the sum of its parts.  The shuffle feature on an iPod may be very popular but something is lost in the shuffle.

Podcast for Children and Childish Adults: Nightlystory

By Mike Dorf

File this post under "shameless promotion of other ventures."  The good news is that like DoL, this other venture is completely pro bono.  Here goes.

Every night for the last several years, I have been making up stories of 5-10 minutes length for my two daughters, featuring their respective alter egos, code-named Rowena and Ophelia.  I occasionally include their friends.  The stories frequently feature time travel and other adventures, and mix material genuinely for children (mine are currently 8 and 6) with my own inside jokes that only adults can follow.  The quality is, admittedly, variable, depending on my own level of creativity on any given night, and how well the kids are behaving.  (They sometimes interrupt.)  But I've beta-tested it with a few friends and family, and there seems to be enough interest to launch it to the wider world.

Now you can listen in. I've created a podcast which you can access via the web or by searching for "nightlystory" in the iTunes store and then subscribing (or downloading individual podcasts).  The podcast is free either way.  I suggest you start with the first couple of stories (at the bottom of the webpage or at the bottom of the episode list in iTunes), because they provide background and context.  There will be a new story just about every day.  If you enjoy them, please spread the word.

Tomorrow, DoL will go back to law, politics, etc.

The Reality Behind My Confirmation Fantasy

By Mike Dorf

My latest FindLaw column imagines how the confirmation hearing for Elena Kagan might go.  Here I'll just note all of the places in which I used more or less actual past statements from the nominee and the Senators for my text.

-- The description of the "pincer movement" comes from then-Professor Kagan's article in the 1995 U Chicago L Rev.

-- Sen. Sessions has been vociferously arguing that Kagan's refusal (until the ruling in FAIR v. Rumsfeld) to exempt the military from Harvard's anti-discrimination policy amounts to hostility to the military.

-- Sen. Specter's switch to the Democratic Party occurred shortly after his vote against confirming Kagan to be SG.  Citing Scottish law, he voted that the charges against Pres. Clinton were "not proved."

-- As a Senator, Joe Biden called the confirmation hearing for then-Judge John Roberts a "kabuki dance."  Most of the balance of the statement I have attributed to him in the column is from his opening statement in the Roberts confirmation hearing.  The discussion of his Beretta is taken more or less verbatim from comments he made while campaigning for Vice President.  At the time, it was Barack Obama who, Biden said, would have a problem if he fooled with Biden's Beretta.

-- Sen. Cornyn is very fond of the Second Amendment.  He's from Texas, where he was a Justice of the Texas Supreme Court and Attorney General (not at the same time).  He's against same-sex marriage, which he once compared to marrying a box turtle.

-- Sen. Coburn told then-Judge Sotomayor that under certain circumstances, she "would have some 'splainin to do," thus channeling his inner Ricky Ricardo.  Given the Republicans' desperate desire not to appear anti-Latino, this can only be explained as a Freudian slip on par with Basil Faulty's failed effort not to mention the war:



-- Sen. Graham told then-Judge Sotomayor that she would be confirmed absent a complete meltdown.

-- To my knowledge, neither Senator Whitehouse, nor Senator Klobuchar, nor, for that matter, any Senator in history, has ever asked a Supreme Court nominee whether he or she likes kittens or puppies.  However, many Senators do view it as their job to lob softballs to nominees of a President from their own party.

-- Sen. Schumer likes the spotlight.

-- Sen. Franken is originally from Minnesota but during his many years as a writer and performer on Saturday Night Live and through his other ventures, he lived on the Upper West Side of Manhattan.  I used to see him in the neighborhood occasionally, and once at the dog run my dog Scooter (who was much bigger than his name would suggest) accidentally knocked Franken to the ground while chasing Franken's own dog, a black lab.  I know Franken was a high school wrestler, but when Scooter hit him, he went down like a sack of potatoes.

-- Sen. Franken questioned then-Judge Sotomayor at length about Perry Mason.  This was arguably his most coherent line of questioning.

My Strange Guilty Plea

By Mike Dorf

A few weeks ago, I received a speeding ticket for allegedly driving 53 mph in a 35 mph zone.  The alleged infraction occurred on a highway on which the regular speed limit is 55 mph but is punctuated by periodic "speed zones."  According to the state trooper who pulled me over, I was in one of these speed zones when he stopped me.  I wasn't so sure I was traveling nearly as fast as he said, or thought perhaps he had clocked me on his radar as I was beginning to decelerate from around 55 to around 35 as I entered the speed zone.  But he gave me the ticket anyway.

On the suggestion of a colleague, I contacted the D.A. in the municipality responsible for prosecuting these cases.  She sent me a form affidavit on which I then told the above story, attached a copy of my clean driving record, and asked for a lesser charge.  About a week later I received a plea offer in the mail.  Instead of charging me with "speeding in zone (10-20 mph above limit)," a violation that typically carries a substantial fine and 4 points, I was offered the charge of "disregarding a traffic device," a charge that typically carries a smaller fine and fewer points.  Some research on the web confirmed that this was considered a good deal and the best that I could reasonably hope for under the circumstances.  I took the plea.

Here I want to note the peculiarity of this particular reduction in charge.  I was not offered a plea of speeding in zone (<10 mph over limit) which is a lesser included offense of the original charge.  For me, that was a good thing, because apparently the penalty for "disregarding a traffic device" is less even than for speeding by <10 mph above the limit.  But the charge to which I pled guilty was not something I did.  Nobody--not the state trooper, not I, not the district attorney, and not the judge--thought that I really disregarded a traffic device.  There was no traffic device anywhere in the vicinity of the alleged offense.  And so this raised for me a number of questions.

1) Was I committing perjury by pleading guilty to disregarding a traffic device?  Was the D.A. suborning perjury?  I think the answer is no.  I read the form carefully and I was not swearing, nor was I signing under penalty of perjury.  Indeed, unlike in a plea in open court, there was no place for me to recite any facts at all.  I simply pled guilty, acknowledging that I was waiving my rights to trial, appeal, etc.

2) But I'm not confident that the same thing doesn't sometimes occur in open court.  There would be something very odd about a judge accepting a plea from someone like me if the defendant were required to say that he in fact disregarded a traffic device.

3) I wonder about the collateral consequences.  Suppose that two years from now I'm charged with running a red light and I take the stand and say "I've never run a red light."  Can the prosecution impeach me with my "disregard of a traffic device" conviction?  Fairness would require me to be able to then say that in fact it was a speeding ticket that led to the plea.  So should the prosecution not be permitted to bring up my prior in the first place?  And doesn't this further illustrate the oddness of this deal?

4) What are the limits on this sort of arrangement?  Could the D.A. have offered me the opportunity to plead to a wholly unrelated offense, like busking without a license or smoking in a public building, if one of those offenses happened to carry the right level of compromise penalty?  That seems crazy, but then is it any crazier than the actual deal by which I'm charged for an offense that no one thinks I committed?  Can there really be no limit here?  Suppose that the D.A. offers to let me off the hook for allegedly driving 18 mph over the speed limit if my sister pleads guilty to jaywalking (an offense that no one believes she committed).

5) Assuming there are limits on the unrelatedness of a charge for which a plea can be offered, what is their nature?  Is it simply a matter of judicial integrity, such that a judge cannot accept a plea for which there isn't the remotest factual basis?  Is it a matter of due process?  And would anyone have standing to complain, given that you can always just reject the proposed deal?

I welcome trenchant analysis in the comments.

Good and Bad Social Science Research: Medical Costs

-- Posted by Neil H. Buchanan

A new on-line legal periodical, whimsically titled Jotwell: The Journal of Things We Like (Lots), was launched last Fall. The idea behind the journal is to have law professors write short (500-1000 word) entries describing an important book, article, or work-in-progress in their field that they have read recently. The journal is, by all accounts, off to a very good start. The Tax Law section of Jotwell is edited by Allison Christians of Wisconsin and George Mundstock of Miami, and they were nice enough to invite me to be among the inaugural group of Contributing Editors.

My first entry, "Health Care Costs and Fiscal Infirmity," was posted last week. I discuss an article that appeared in June 2009 in The New Yorker, written by Harvard Medical School professor Atul Gawande: "The Cost Conundrum: What a Texas town can teach us about health care." I argue that tax policy is going to be driven in the next few decades by health care costs, and Gawande's article is an extremely good starting point to understand the issues involved in causing the U.S.'s disastrously high (and rising) health care costs.

I felt a bit awkward about reviewing an article from a non-academic journal, but I justified my decision in part by noting: "Although written for a non-academic audience, and although written by a medical doctor, Gawande’s article is in some ways among the best empirical social-science writing available." I pointed out that Gawande had found a "natural experiment," that is, a real-world comparison that can mimic the pure scientific method of laboratory experiments, with control groups and experimental groups. Specifically, Gawande identified two Texas cities, McAllen and El Paso, that were similar in every way that could be relevant to medical costs (age and ethnicity of the populations, diets, income levels, etc.) but that had wildly different medical care costs -- McAllen being twice as expensive as El Paso.

Looking at the data, Gawande then supplemented statistical analysis with old-fashioned interviewing: asking the relevant players in each city what they thought explained the enormous cost difference. He concluded that the difference between the two cities is that medical care providers in El Paso (the low-cost city) have not yet begun to respond to the economic incentives of the fee-for-service model, in which providers are reimbursed for "doing things to people," not for making them healthier.

Almost as a throwaway, I mentioned in my Jotwell piece Gawande's comment that McAllen is the second-highest-cost city in the country, and that Miami is the highest cost city. Miami, however, "has much higher labor and living costs." Gawande concluded, correctly, that it would be ridiculous to compare Miami to El Paso, because the higher medical care costs in Miami might simply be a result of having to pay doctors more to cover the local cost of living.

As obvious as that observation might be, The New York Times published a truly amazing article last week showing that similar simple adjustments were not made in one of the the most widely cited studies on health care costs in the country: The Dartmouth Atlas of Health Care. The article points out that the Atlas was extremely influential during the debate on the Democrats' health care bills in 2009 and 2010, and it was used repeatedly by the Obama administration to claim that there is a simple and straightforward way to lower Medicare costs. The Atlas shows the costs for hospitals in different regions of the country, seeming to show that hospitals in some parts of the country are more efficient while other areas are the source of Medicare's cost problems. Members of Congress asked the Administration to simply cut the reimbursements to the high-cost hospitals down to the levels that the low-cost hospitals spend, on the theory that all hospitals should be able to do their work as inexpensively as the least expensive hospitals already provide care.

This is an appealing prospect, because it purports to cut only "waste," not beneficial care. If a hospital in Mississippi, for example, costs 40% more than a hospital in Minnesota, then the Mississippi hospital should send its management team to learn the cost-cutting secrets of the Land of 10,000 Lakes. No danger of cutting necessary care. No death panels. What could be better?

The Atlas, however, has a major shortcoming: "Measures of the quality of care are not part of the formula." In other words, the Atlas merely shows who has low costs, for whatever reason. They are not only failing to control for patients' health, but they are not even taking into account local cost of living: "Neither patients’ health nor differences in prices are fully considered by the Dartmouth Atlas." The Times reporters offer the following interesting hypothetical: "[T]he atlas’s hospital rankings do not take into account care that prolongs or improves lives. If one hospital spends a lot on five patients and manages to keep four of them alive, while another spends less on each but all five die, the hospital that saved patients could rank lower because Dartmouth compares only costs before death."

The authors of the Atlas are, unfortunately, responding more like advocates than like scientists. In response to hospital administrators' anger at being downgraded even if they have better outcomes, the article notes that "making these administrators uncomfortable is the point of the rankings," quoting one of the principal authors as saying: "“When you name names, people start paying more attention. We never asserted and never claimed that we judged the quality of care at a hospital — only the cost." The article then points to examples showing that, in fact, the authors have made precisely such claims. (The author's response: He wasn't as careful as he should have been.)

Most jaw-dropping, I think, is their claim that "even if they adjusted more fully to reflect differences in regional costs and patients’ health, the overall effect on the atlas’s findings would be relatively small." If they know that to be true, then they must be able to demonstrate it. If they can, why don't they?

The article includes some other gems that I will leave readers to enjoy on their own. I will simply conclude by making the obvious point that good social science is evidence-based, and the evidence must be gathered, distilled, and described carefully. Atul Gawande has, as far as I know, no training as a social scientist. The Dartmouth study is co-authored by an economist. Gawande's conclusions are much more reliable.

Souter's Harvard Balancing Act

Most of the discussion I have seen of retired Justice David Souter's Harvard commencement speech--both laudatory and critical--has focused on the primary distinction Souter drew at the level of jurisprudential philosophy between what he called the "fair reading" model (by which he more or less means textualism or original-public-meaning originalism) and his own view (which we might associate with what is sometimes called "living Constitutionalism").  Here I want to add a few thoughts that operate at the level of doctrine.  I'd like to suggest that Souter's distinctive view of fundamental rights has, almost without anybody noticing, become the law.

In his speech, Souter ascribed the need for judges going beyond the four corners of the text to two factors: 1) the generality of much of the Constitution's key phrases; and 2) the fact that the Constitution serves conflicting values. He laid greater emphasis on the second point, and I shall focus there as well.  My claim is that this notion of the judge as weighing conflicting values in the law played an important role in Souter's work on the Court.

The constitutional law of most other countries and international human rights law is shot through with balancing and proportionality tests.  These bodies of law reflect a point that Isaiah Berlin and others have made over and over again: In a complex world, people can and do hold conflicting values.  Circumstances arise in which it is impossible to fully honor all of our fundamental values--and if a society has enshrined those values in a constitution, this will mean trading off one constitutional provision against another.

But generally not, as an official matter, in the United States.  Here we have tended to suppress conflict.  Our constitutional tests tend to categorize cases in such a way that either the rights claimant just about automatically loses (think of rational basis cases) or just about automatically wins (think of strict scrutiny cases).  Occasional efforts to develop intermediate categories (such as intermediate scrutiny) have not fared well, as American judges--obsessed by the fear of being labeled activist--do not like exercising judgment in ways that are too obvious.

It didn't have to be this way.  Over forty years ago, Ronald Dworkin potentially pointed the way towards balancing by positing that legal principles (what are sometimes called "standards") do not merely operate in an on/off fashion but often have a dimension of "weight," such that contrasting legal principles can be in play, but one must prevail over another in some set of circumstances.  Yet Dworkin's work did not ultimately lead to overt balancing because he also built much of his jurisprudential view on the idea that "rights are trumps," i.e., that rights operate in an on/off fashion: In a conflict between a right (a matter of principle) and a mere "policy," the trumps view means that the right always prevails.  The "trumps" idea fits in very well with the on/off approach.

Justice Souter mostly accepted the Court's rights doctrines but he placed a distinctive pro-balancing gloss on them.  The point is perhaps clearest in his concurrence in the judgment in Washington v. Glucksberg.  Souter joined in rejecting the claimed constitutional right to physician-assisted suicide but wrote separately to say that he thought that in different circumstances such a rights claim might prevail.  Although using the language of strict scrutiny applying to infringements on fundamental rights, he sought to reorient it in the direction in which he saw his role model--the second Justice Harlan--as pointing it: towards a balancing test, as exemplified by Harlan's dissent in Poe v. Ullman.  Souter had said much the same thing during his confirmation hearing.

Justice Souter was on his own in his Glucksberg concurrence and he did not consistently write separately to expound his idiosyncratic view of substantive due process rights.  Yet somehow, without anyone seeming to notice, his view more or less became the law.  Although bar exams and hornbooks are still written as though the recognition of a fundamental right triggers strict scrutiny, the doctrine has moved much closer to the sort of open-ended balancing Justice Souter favored, most clearly in Lawrence v. Texas, where Justice Kennedy's opinion never says what level of scrutiny the challenged law is under.  To those accustomed to the conventional categories, this is frustrating.  To Justice Souter, it must have seemed perfectly natural.

I'll conclude by noting that I'm not sure exactly where Justice Souter's preference for balancing comes from, but that it fits naturally with the rest of his anti-formalist jurisprudence.  After all, his chief foil--and the unnamed ostensibly hypothetical interlocutor in his Harvard speech--has been Justice Scalia.  And Scalia hates balancing above all else.  I'm not saying that's a sufficient ground for Souter to love it.  I am saying that the confluence is unlikely to be an accident.

Institutional Versus Linguistic Textualism

By Mike Dorf


As I observed in my FindLaw column and accompanying blog entry last week, Justice Scalia's allergy to legislative history appears to be stronger than the corresponding distaste felt by any of his colleagues.  Monday's decision in Kapruski v. Costa Crucierc, S.P.A. provides further evidence of distance between Justice Scalia and even the Court's other textualists--at least with respect to the felt need to make a point.  Kapruski unanimously holds that the question of whether a complaint that mis-names the defendant will count as timely under Federal Rule of Civil Procedure 15(c), should be resolved by asking whether the new defendant had notice of the suit during the period permitted for service under the statute of limitations (and the applicable tolling and service rules).  Justice Scalia joined Justice Sotomayor's opinion for the Court except for its reliance on the Notes of the Advisory Committee.


Here is the substance of Justice Scalia's objection:

The Advisory Committee’s insights into the proper interpretation of a Rule’s text are useful to the same extent as any scholarly commentary. But the Committee’s intentions have no effect on the Rule’s meaning.  Even assuming that we and the Congress that allowed the Rule to take effect read and agreed with those intentions, it is the text of the Rule that controls.

That needs a bit of explanation for those of you who aren't federal court litigators and forgot (or never learned) civil procedure.   Under the federal Rules Enabling Act, the original Rules of Civil Procedure and Amendments thereto come into effect as a result of three steps (more or less): 1) The Rules Advisory Committee--a body of lawyers, judges and legal academics--makes a study of the needs of the civil litigation system, soliciting input from the profession and the public, and then proposes new Rules or Amendments; 2) Such proposals then go to the Supreme Court, which usually (though not invariably), adopts new Rules or Amendments; but 3) At least six months before such new Rules or Amendments go into effect, the Supreme Court has to transmit them to Congress.  That way, if Congress doesn't like the change, it can pass legislation canceling it.


That procedure may seem odd, but it has long been understood as an acceptable variation on the traditional power of courts to adopt their own rules of civil procedure.  Thus, even though Justice Scalia dissented from the Supreme Court's 1989 decision in the Mistretta case on the ground that Congress cannot give a judicial administrative body the power to make what he regarded as substantive decisions about the criminal law, he has accepted that the Rules Advisory Committee process is permissible.  (Justice Scalia said so in his Mistretta dissent, accepting the authority of the Sibbach case.)


Now note what Justice Scalia is doing in his Kapruski concurrence: He is applying his brand of textualism to the Rules Advisory Committee process.  In his view, the Notes of the Rules Advisory Committee are analogous to the House or Senate Committee Report on a bill before enacted by Congress--a gloss that may or may not reflect the intent of the enactors, but, in any event, is not part of the enacted law, and not even relevant as any kind of authoritative source for resolving ambiguity in the law.


Yet even if one accepts Justice Scalia's critique of the use of legislative history in the construction of federal statutes, it is not obvious that the Notes of the Rules Advisory Committee are equally irrelevant to the construction of a Rule of Civil Procedure.   To begin, as I explained in my column, perhaps the best argument for textualism in statutory construction is to implement the principle that Congress cannot delegate power to a subset of itself.  Yet that principle has no bearing on rules promulgated by bodies wholly outside of Congress. Indeed, in other settings, Justice Scalia has been sensitive to this sort of difference.  Thus, he accepts the authority of the "Application Notes" that accompany the Sentencing Guidelines: Promulgated together with the Guidelines themselves and by the very same body (the Sentencing Commission), they can be treated as authoritative.


Now I suppose that one could develop an explanation for why the Rules Advisory Committee Notes should be treated as potentially misleading gloss analogous to Justice Scalia's view of legislative history, but what is interesting about his concurrence in Kapruski is that Justice Scalia doesn't seem to think that it is necessary to do so.  He appears to think that textualism is simply a product of what it means to read a text.  As he said fifteen years ago in Tome v. United States, when first espousing the view that the Rules Advisory Committee Notes should not be given any authoritative weight: "Like a judicial opinion and like a statute, the promulgated Rule says what it says, regardless of the intent of its drafters."  This is a linguistic account of textualism, not an institutional one (of the sort that public choice scholars and others have defended).


I don't think that this objective theory of language is necessarily a bad theory, but what makes it peculiar, in my view, is that Justice Scalia seems to think this is simply a matter of the nature of communication--even as intentionalists also think that their directly contrary view is simply a matter of the nature of communication.  Justice Scalia thinks that when Doe says "X" he means whatever his audience will reasonably understand "X" to mean, regardless of Doe's subjective intent, whereas Stanley Fish thinks that when Doe says "X" he means whatever Doe intends, regardless of what his audience will (reasonably or otherwise) understand.


To my mind, we have two different conceptions of the meaning of language at work here, one subjective and the other objective (or perhaps inter-subjective).  It is not especially useful for each side to insist that its conception of meaning is correct.  They would much more usefully argue over what consequences follow from adopting one or another conception of meaning in different contexts.  The institutional claims for and against textualism do that; the insistence on textualism as simply a matter of linguistics does not.