Free Speech Consensus

By Mike Dorf

Yesterday I gave the Keynote Address at the annual luncheon of the Boston Bar Ass'n.  My remarks were too long to reproduce fully in a blog entry, but I'll nonetheless try to summarize the high points.  The title of my speech was "The Cross-Ideological Consensus on Freedom of Speech."  Here's the condensed version.

Consider three Free Speech Cases the Supreme Court decided in the term that ended this past June:

 

1) In Holder v. Humanitarian Law Project the Court split on ideological lines (except for Stevens joining the conservatives) to uphold the application of the "material aid" law to people who wanted to assist the non-violent wings of listed terrorist organizations by training them in peaceful conflict resolution.

2) In Citizens United v. FEC the Court split 5-4 on ideological grounds to invalidate the ban on corporate independent expenditures for "campaign speech" during the statutorily defined election period.

3) In Christian Legal Society v. Martinez, the Court split 5-4 on ideological grounds (with Kennedy swinging liberal here) to reject the expressive association claim of a putative student organization that objected to a public law school's requirement that it take as a member any student who wished to join.

If you're keeping score at home, we can summarize as follows:

Humanitarian Law Project: Liberals (minus Stevens) support speech claim; conservatives (plus Stevens) oppose speech claim; conservatives win.

 

Citizens United: Conservatives (including Kennedy) support speech claim; liberals oppose speech claim; conservatives win.

 

Christian Legal Society: Conservatives support speech claim; liberals (with Kennedy) oppose speech claim; liberals win.

 

Judging by just these three cases, we seem to have here a vindication of the political science view of the Court as essentially political.  The liberals are civil libertarians who worry about protecting dissident speech but egalitarians even more so.  The conservatives support speech claims when they benefit powerful corporations and a socially conservative Christian organization. Despite the evidence of these three cases, and while I think there is definitely something to the general view of the political scientists, I think it's not especially accurate with respect to free speech.

Consider that in two other free speech cases last Term, the Court was nearly unanimous: In Doe v. Reed, the Court found that disclosure of the identities of petition signers did not, absent a particularized showing, so chill their petition signing as to violate their free speech rights; and in United States v. Stevens the Court facially invalidated the federal law forbidding pictures or depictions of animal cruelty as overbroad.

Taken as a whole, last Term's cases show that far from being divided on the value of free speech, the Court as a whole is committed to it; ideology enters into the picture only where the doctrine is unclear.  But that is a substantially different situation from what we see in other settings, where the Court is divided on the very question of whether any judicial protection at all is appropriate.  Consider, in this regard, the right to keep and bear arms (conservatives embrace it, while the liberals reject it), states' rights (conservatives embrace it, while the liberals mostly reject it), and what used to be known as the unenumerated right to privacy (liberals embrace it, while the conservatives mostly reject it).

Consider as further evidence for my core claim here how difficult it is to handicap two free speech cases on the Court's docket for the Term that begins on Monday: Schwarzenegger v. EMA, concerning a ban on the sale of violent video games to minors; and Snyder v. Phelps, concerning liability for offensive speech near a funeral.  It is easy to imagine the Court dividing in either case, but it is not at all obvious what the ideological valence of either case is.  And that's because "free speech" as a general category lacks an ideological valence.

It wasn't always thus.  For one thing, free speech was not an important value for judges or lawyers of any ideological stripe until the mid-to-late 20th century.  As O.W. Holmes Jr. famously wrote in a 1918 letter to Learned Hand, "free speech stands no differently than freedom from vaccination."  In case you're wondering, Holmes did not think much of freedom from vaccination either.  He eventually fell under the influence of Brandeis to become more sympathetic to speech claims, but only in dissent.

Led by its liberal wing, the Court did make strides for free speech in mid-century, especially in the Barnette case, but the Justices then retreated, becoming quite timid during the McCarthy era.  It was not really until the Civil Rights movement of the 1960s that liberals both on and off the Court fully embraced free speech as one of their cherished values.  No doubt they did so at least in part because of the utility of free speech for those who seek to change the status quo.

For about two decades, conservatives lagged behind liberals on such matters, but by the end of the 1980s the ideological valence of free speech had become scrambled, so that the lineup in Texas v. Johnson, invalidating a prosecution for flag burning was:

Majority: Brennan, Marshall, Blackmun, Scalia, Kennedy

Dissent: Rehnquist, White, Stevens, O'Connor

And by now, just about everybody accepts Texas v. Johnson and treats judicial protection for freedom of speech as a starting point--so much so that in his opinion in Heller, Justice Scalia repeatedly comes back to the First Amendment as his model for interpretation of the Second.

This raises a question: If the civil rights movement showed liberals the value of freedom of speech, what did it for the conservatives?  I would venture that at least four factors galvanized the right:

1) Commercial speech

2) Opposition to campaign finance regulation

3) Perceptions of Political Correctness stifling the expression of conservative views on college campuses and elsewhere

4) The recognition that religious conservatives could advance their cause more effectively under the rubric of free speech than free exercise of religion.

 

Thus, today, we have a cross-ideological consensus for robust protection of freedom of speech.  That's a remarkable development that is worth celebrating--or at least worth noting.

Severability's Double-Edged Sword

By Mike Dorf

As I have previously explained (here and here), under the most straightforward reading of existing Commerce Clause precedents, the individual mandate in the health-care reform law is valid.  To my mind, the fact that Congress has not previously directly required anyone to participate in a market transaction is simply beside the point, given the clear economic impact of failing to purchase health insurance.  And that's to say nothing of the law's sustainability as an exercise of the taxing power.

Nonetheless, I have come to think that just as in the run-up to Bush v. Gore, I am underestimating the framing power of politics.  Then, I thought that given the traditional deference shown to state courts on matters of state law, the SCOTUS wouldn't take the case.  I didn't reckon with the possibility that ideological and partisan druthers would frame the issue for conservative Justices quite differently than for liberal Justices.  (Note first that I'm not saying that the Justices in Bush v. Gore or any other case consciously decided based on partisan grounds.  Note second that I'm sure these and other issues look exactly the opposite to conservatives.  They likely think that there are cases in which the extant law clearly requires conservative results but that the ideological stakes frame the issues differently for liberal judges.  But I digress.)

So too with health care, I now think it's just very hard to predict what the SCOTUS will do when the health care law eventually comes to it.  As  Jeff Toobin writes in last week's New Yorker, "the constitutionality of health-care reform must, at this point, be seen as an open question that can be resolved only by the Supreme Court."  (Toobin's profile of Justice Breyer, from which I have taken the quoted language, is only available in the print edition or online for subscribers.)

Here I want to add a thought about severability.  A number of conservative bloggers have noted that the health-care law contains no severability clause.  This is true as far as I can ascertain by searching the text for variants on the word "severable" but I haven't read the whole law line by line.  Assuming no severability clause  lurks in the text, the law would nonetheless be presumed severable.  Supreme Court cases treat invalid provisions of a law as presumptively severable from valid ones--regardless of whether the law in question contains a severability clause.  However, where the invalidation of a single provision of a law would impede the ability of the remaining provisions to function as a whole, the presumption of severability will be overcome.  Would that be true for the individual mandate?

Here the core Commerce Clause argument is a double-edged sword.  The best arguments for sustaining the individual mandate as an exercise of the Commerce Power build on the Comstock  and Raich decisions, in which the Court held, respectively that: a federal law providing for civil detention of prisoners following the completion of their sentences was necessary and proper to carrying out the power to criminalize the conduct that landed them in prison in the first place, even absent any direct authority for civil detention; and federal law could validly criminalize intrastate cultivation and possession of marijuana for personal medical use because of the possibility of legalized medical marijuana finding its way into the illegal market for recreational marijuana.  In each case, the validity of upstream regulations of interstate commerce (or the upstream exercise of some other power in some of the statutes within Comstock's reach) validated the downstream application to activities that might not in themselves amount to interstate commerce (or otherwise regulable acts).  So too with health care, healthy people who fail to purchase health care until they become sick deprive the insurance pool of premium payments needed to spread the risk, thereby undermining the effectiveness of the prohibition on dropping coverage for pre-existing conditions; that makes them regulable even if their failure to purchase health insurance would not otherwise constitute interstate commerce (or even "economic activity" within the meaning of Lopez, Morrison, and Raich).

Suppose the Court were to reject the foregoing argument as a basis for sustaining the individual mandate.  It would be saying that the individual mandate is not necessary to effectuate the prohibition on dropping coverage for pre-existing conditions.  But if that were true for purposes of affirmative power, then it would also seem to follow that the individual mandate is not necessary for severability purposes; the law could function as a whole without it.  In other words, in order to accept the constitutional challenge to the individual mandate, the Court would have to find the predicate conditions for the further conclusion that the (putatively) invalid individual mandate is severable from the rest of the law.  So, as a matter of logic, the scope of the victory that can be obtained by those challenging the mandate is limited; to defeat the mandate they must gift-wrap an argument for sustaining the rest of the Act.

Except of course that my conclusions about severability are subject to the same possible political framing effects as the merits.

Why Would Congress Pass a Completely Useless Law?

By Mike Dorf


Last week I was a panelist on an ABA-sponsored "webinar" discussing last Term's "crush video" case, U.S. v. Stevens, and its aftermath.  My assigned task during the affirmative presentations was to describe the Supreme Court's First Amendment holding in the case, but during the Q&A, I raised the issue that has concerned me about the Stevens case since the Court first granted cert: Whether the law banning depictions of deviant animal cruelty was counter-productive to the wellbeing of non-human animals because it permits people who enjoy the fruits of animal suffering and death by eating and wearing them to feel as though they are better than people who derive sexual or other pleasure from observing photos and videos of such suffering and death.  (I have blogged about this issue before, and Sherry Colb wrote a FindLaw column on the topic.)  We had a lively and respectful exchange on the efficacy of the law at issue in Stevens and about animal welfare laws more generally.


Here I want to note another aspect of the webinar: Our discussion of the bill currently pending before Congress that would respond to Stevens  with a more narrowly drawn prohibition..  The Supreme Court in Stevens both declined to recognize "depictions of animal cruelty" as a new category of unprotected speech and held that the particular statute--18 U.S.C. sec. 48--was overbroad.  The Court left open the possibility that a statute forbidding only crush videos and depictions of illegal animal fighting might be constitutionally valid as surviving strict scrutiny.


After the introduction of a number of different bills, H.R. 5566 passed the House last month.  It forbids "animal crush videos" but not depictions of animal fighting.  The bill defines crush videos as follows:

the term ‘animal crush video’ means any obscene photograph, motion-picture film, video recording, or electronic image that depicts actual conduct in which one or more living animals is intentionally crushed, burned, drowned, suffocated, or impaled in a manner that would violate a criminal prohibition on cruelty to animals under Federal law or the law of the State in which the depiction is created, sold, distributed, or offered for sale or distribution.

Is that constitutionally valid?  Certainly.  Why?  Because it forbids nothing.  Why is that?  Because under 
Miller v. California, to qualify as obscenity, proscribed material must, among other things, "depict[] or describe[], in a patently offensive way, sexual conduct specifically defined by the applicable . . . law."  But H.R. 5566 does not define any sexual conduct.  The fact that some people are turned on by crush videos does not make crush videos into depictions or descriptions of "sexual conduct."  (If someone were turned on by pictures of kneecaps or videos of the Los Angeles Dodgers playing baseball, that wouldn't make the kneecap photos or the Dodgers videos depictions of sexual conduct either.)  So H.R. 5566 would only apply if a crush video ALSO happened to contain obscene sex acts.  But what would make the video proscribable would not be the animal torture but the sexual conduct as defined by some other statute.


To be sure, H.R. 5566 contains a "finding" that "Animal crush videos appeal to the prurient interest and are obscene."  But under Miller, appeal to the prurient interest isn't enough; the material must still be sexual in nature; and a congressional declaration that matter is obscene does not by itself satisfy Miller.  Thus, I conclude that H.R. 5566 would do literally nothing.


In a sense, the bill is a perfect metaphor for itself.   As noted above, I had feared that the version of the law struck down in Stevens was on the books largely for symbolic reasons.  By treating depictions of a tiny slice of cruelty to animals as the product of evil deviants, the law normalized the billions of cases of non-deviant cruelty.  H.R. 5566 perfects the fantastic dichotomy by singling out an even more despicable category of deviant cruelty to animals--cruelty that is so deviant it does not exist. 

Waste, Political Degradation, and Tubes of Money

-- Posted by Neil H. Buchanan (from London)

Professor Dorf apparently viewed my departure from the country as an opportunity to turn his attention to economics, posting some very useful thoughts last Thursday about the new national obsession with government spending. I have very mixed feelings about how knowledgeable Mike -- a con law scholar -- is about Keynesianism, given how little con law I know. (My reference to Griswold last week hardly counts.) Need I ever return to the U.S.? Maybe.

In the extremely good discussion of Mike's post on the comments board, a question arose about the value of wasteful (and even destructive) government spending. Even someone with a rather sophisticated understanding of Keynesian policy recommendations during a recession could understandably -- though incorrectly -- conclude that Keynes was indifferent to the content of the spending that a government might undertake to bring the economy back to full employment. Indeed, the scorn among some on the left for "military Keynesianism" is based precisely on this idea.

That is, it is a matter of some embarrassment that the first truly successful Keynesian stimulus program was enacted in Nazi Germany. The German economy finally arose from its prolonged economic disaster (which had been made much worse by the victorious allies' insistence on receiving compensation payments for WWI), quickly becoming a global economic powerhouse, by putting people to work building tanks, bombs, airplanes, guns, bullets, uniforms, and so on. The U.S. also never really emerged from the Great Depression until we went to war, which gave us the excuse to increase the debt ("Buy Bonds!") in order to win an existential conflict.

In fact, the quasi-Marxist left has taken the point further and claimed that a modern capitalist economy cannot maintain full employment without periodic bouts of outright destruction. Under certain (actually not outlandish) assumptions, one can show that a modern economy can only be kept at full employment by engaging in so much investment that the capacity of the economy will grow systematically faster than the labor market, preventing the labor market from catching up with the moving target of the economy's growing productive capacity. Hence, the need for a jolly good war every now and then, to allow the capital stock (and that pesky population of the unwashed) to be knocked back down to size.

One need not be nearly so pessimistic or cynical, however, to imagine that Keynesians are perfectly happy with wasteful spending during a recession. Even a Keynesian peacenik, one imagines, could think of some clever ways to put people to work such that they do not add to the productive capital stock, yet still paving the way for a return to full employment.

Which brings us to the buried tubes of money. As Mike noted in response to a question on the comments board, Keynes once described a truly silly way for the government to put people back to work. Professor Hockett corrected him on some minor details, but the basic story was right, as far as it went. Keynes really did describe a plan to have the government hire thousands of unemployed people to go into the forests and bury tubes filled with money in unmarked spots. He did not, however, say that the government should then hire other people to dig up the money.

The context of the money tubes suggestion makes quite clear that it was a sarcastic joke. The import of the joke, however, was not to make the point that "it doesn't matter what we spend it on, so long as we spend it." That is true during a recession, and it is an absolutely essential insight, as far as it goes; but the point that Keynes was making was much deeper. Keynes was, in that passage, ridiculing "the captains of industry" for their self-satisfied adherence to what we would now call (thanks to one of Keynes's disciples, John Kenneth Galbraith) the conventional wisdom. Specifically, Keynes said that the problem of inadequate spending should be an occasion for engaging in public investments, such as building adequate housing for the poor. The captains of industry, however, will always soberly warn us that having the government build housing for the poor is bad business, for all of the reasons that were already old hat in the 1930's.

What do the captains of industry (today known as Big Business) think is good business? Sending people out into the wilderness to dig holes in search of money! Keynes was, in other words, noting that the people who were against "wasteful spending" thought nothing of having businesses hire people to extract gold from the ground -- even though there is no good reason for any country's monetary system to be based on gold. (Note that people like Glenn Beck today are hawking gold as "real money" and "a safe investment," in response to Obama's flight into socialism, communism, Nazism, and his father's fevered Kenyan dreams.)

The brilliance of Keynes's example of the money tubes, therefore, was actually in its second step. After the government-hired workers had buried the money, entrepreneurs (who are ever assumed to be hard-headed and always rational in their pursuit of profit, mediated by the market to guarantee efficient outcomes) would then organize companies to hire workers who would go out and find the tubes, dig them up, and then bring the tubes of money back to the entrepreneurs. This, the captains of industry would agree, is good business. (I'm tempted to invoke the immortal line, "It's a series of tubes!" but I just can't figure out a way to make it relevant.)

The money tubes suggestion was thus a way to show that the implicit priorities of the moneyed classes were (and still are) deeply perverse. People being hired to do useful things like build houses, hospitals, and schools? Preposterous! People being hired to dig up pieces of paper? All hail the profit motive and Sound Money!

Of course, no government would want to do anything so silly as to hire armies of people to bury tubes of money in the first place. Unless they had no choice. If the political culture is so degraded that valuable public investments are off the table, simply because of the (repeatedly-disproved) belief that the government can never do anything right, then it is time to opt for choices that are politically thinkable and that at least have the virtue of putting people back to work -- even though they do so without creating long-term value.

Today, sadly, the political culture is even more degraded. Productive public investments are off the table, jobs programs are off the table, and government spending to hire privately-employed workers is off the table. Only spending cuts, and tax cuts for the rich, remain. Which makes that idea about the money tubes look pretty smart by comparison.

Consent of the Governed

By Mike Dorf


On Wednesday, I was the commentator on a Federalist Society-sponsored presentation by libertarian lawyer Clark Neily at Cornell Law School.  Mr. Neily argued for more robust judicial scrutiny of all laws that infringe liberty, regardless of whether they infringe fundamental rights.  I expressed skepticism about the possibility of cabining this approach, given the experience of the Lochner era.  All in all, it was a fun, respectful exchange.


Here I want to comment on a point Mr. Neily made in passing.  Although his core argument focused on rights, he also expressed the view that the Supreme Court's acquiescence in the growth of the federal government called into question the notion of a government of enumerated powers.  The same argument was made by Thomas Jefferson in opposing the Bank of the United States during the Administration of George Washington.   Jefferson lost internally.  Once in office, the Jeffersonians permitted the Bank's charter to expire, which was widely regarded as a cause of the calamitous course of the War of 1812, so that even Jeffersonians eventually gave up on the point.  But hey, if you're speaking to an academic audience, there's nothing wrong with re-fighting old fights.  Accordingly, Mr. Neily pressed on.


One of his contentions was that overreaching by the federal government accounts for a July Rasmussen poll finding that only 23% of Americans think the federal government has the consent of the governed (up only 2% from a January survey).  Now for some skepticism about what this entails:


1) Rasmussen is a legitimate polling outfit but its results typically skew to the right.


2) Both the July and the January stories on the Rasmussen website segue seamlessly from touting the respective poll findings to touting a recent book by Scott Rasmussen (in identical language), which doesn't exactly invalidate the findings, but makes one wonder about the larger point.


3) According to the July report, "most liberal voters (58%) think the federal government has the consent of the governed. Most moderates (57%) and most conservatives (84%) disagree."  That VERY stark ideological polarization very strongly suggests that the poll is not in fact measuring "consent of the governed" in a strong sense but instead is measuring whether the poll respondents support what they perceive as current federal policies.  Indeed, to an average poll respondent, "consent of the governed" probably sounds a lot like "your agreement" or "your support."  That would likely explain the ideological polarization during a Democratic Administration.  I'd be willing to bet an enormous sum of money that if the same question had been asked in January of 2001, the liberal/conservative breakdown would have been reversed.


4) When political theorists talk about "consent of the governed" I do not think they mean support for any particular policy or administration.  They mean something much thinner.  How might one go about measuring that thinner thing by polling?  A better question might be "Do you believe that the American system of government offers people a reasonably fair opportunity to influence government policy?"


5) Even then, I suspect that many actual poll respondents would still answer based on whether the candidates they supported in the then-most-recent election won.


6) Finally, to pick up on a point I made yesterday, there is a substantial difference between expressed and revealed preferences.  It's one thing to tell a telephone pollster that you think the government lacks the consent of the governed.  It's something else to write a letter to the editor or go to a peaceful protest.  It's quite another thing entirely to take to the streets to demand or bring about the overthrow of the government.  It takes something like that last act to show a lack of consent of the governed in the strong sense.

It's the Ignorance, Stupid

By Mike Dorf


On last Thursday's Wall Street Journal op-ed page, Daniel Henninger penned a piece titled "It's the Spending Stupid," in which he touted that slogan as a sign of the times.  And sure enough, that very day I saw two bumper stickers with that slogan on them.  According to Henninger, tea partiers and Americans more broadly have been concerned for a long time about "the federal-spending balloon," with the concern boiling into rage quite recently.  I think Henninger is probably right--at least superficially--about most of the tea partiers but quite wrong about the broader point.


Here's the heart of Henninger's case:

The most important and startling number in American politics today is Congress's approval rating: 23%. This is a no-confidence vote. The second branch of government is losing the country. Surely it's about the spending. What else? That Congress hasn't spent enough?

In a word: Yes.  When it mattered most, Congress didn't spend enough.  In order to get to 60 votes in the Senate in 2009, the Obama Administration proposed a stimulus package that was substantially smaller, and contained less in the way of direct government spending, than leading Keynesians thought necessary.  They warned at the time that this could be the worst of both worlds: A stimulus too small to jump-start the private sector would through its inadequacy be used as evidence that stimulus doesn't work.  And this is indeed more or less what happened, leaving the White House and Congressional Dems to argue that things would have been much worse without the stimulus, which is probably true, but not a great political selling point.


If Congress had enacted a larger stimulus in early 2009, and if it had worked in the way that Krugman, Stiglitz, et al thought it would, then the public would not be in a throw-the-bums-out mood.  How do I know?  Because there is actually good evidence for the original aphorism that "Spending Stupid" uses for its riff.  That, of course, was the reminder Bill Clinton set for himself and his staff in 1992: "It's the Economy, Stupid."  Based on a mountain of data, Clinton knew that what voters care about above all else is their economic wellbeing.  That was true in 1992 and there's no reason to think it's not still true in 2010.


So why do people say they care about spending as such?  I would divide public opinion into two groups: 1) Some substantial fraction of the core of the tea party movement are long-time conservative ideologues who simply oppose government spending.  2) The great mass of the American public, including those who think they are angry about government spending, are understandably angry about having lost or fearing loss of jobs, nest eggs, and homes, but have seized on spending as the butt of their anger, without any clear understanding of what exactly TARP, the stimulus, healthcare, and various other measures adopted in the late Bush Administration and the Obama Administration do or why.  Both the Obama Administration and the news media share some of the blame for this state of affairs--the former for not clearly and repeatedly explaining their economic policy, and the latter for not reporting on these matters in a way that makes them accessible to the public.


The wonder of it all is not that so many people are currently in a state of confusion.  That's understandable because Keynesianism is quite counter-intuitive: We got into the Great Recession as a result of a decade of personal and national spending that we couldn't afford, subsidized through low interest rates made possible by borrowing from abroad.  It's odd that the way out of the resulting downturn is more of the same, except that it's true--up to a point anyway.  But when demagogues and ideologues suggest that a stimulus bill in 2009 and a health care bill in 2010 (which they deliberately conflate with TARP and bailouts in late 2008) caused the economic bust that preceded these legislative events, they are saying something at once preposterous (absent time travel) and appealing to those not paying close attention: borrowing to spend is unsustainable.


Against this backdrop, the true wonder is that American voters appear to be quite sensible over the long run: They may express a preference for reduced spending or for lower deficits but their revealed preferences are for modest, sustainable deficits.  But of course that is over the long run, and as long as we're talking about Keynes, it's worth recalling what he said about the long run.

How Should the Supreme Court Decide Whether to Permit Cameras in the Courtroom?

By Mike Dorf

In my latest FindLaw column I consider the constitutionality of a bill sponsored by Sen. Arlen Specter that would require the Supreme Court to permit television cameras in the court except in those rare instances in which doing so would violate the due process rights of a party.  As I explain in the column, although the bill raises some serious issues of separation of powers, those issues are probably best resolved in favor of the law's validity.  Nonetheless, on grounds of inter-branch comity, I conclude that Congress should not enact the law.  Here I want to address the question of what procedure the Court ought to use to resolve this and related questions of courtroom procedure and etiquette.

As I say in the column, on the merits I think this is a relatively easy question: The Court should open itself to tv camera coverage.  The concern that the dynamic of oral argument would change seems to me overblown and, in any event, outweighed by the public interest.  Audiovisual transmission is the most effective way for the public to find out what happens in the Supreme Court.  Is there a risk that people will get a distorted view of oral arguments from snippets on the evening news?  Sure, but: a) Nobody younger than the Justices even watches the evening news anymore; and b) It's hard to believe that the distorted view would leave people worse informed than the current approach of barring cameras.  In the end, I just don't see the case for keeping tv out, anymore than I see the case for making reporters write their stories about the Court using quill pens.

But presumably the Justices are divided on the matter and so the question arises of how they should decide it.  (One argument for taking the power to decide this issue away from the Justices that I do not discuss in the column raises a concern about self-interest: From the Justices' perspective, perhaps the best reason for keeping cameras out of the Court is that doing so preserves their relative anonymity.  I'll put that aside.)  Here are a few possibilities:

1) Majority vote.  This seems like the easiest way to decide the matter.  With the exception of granting cert--which takes only 4 votes--the Court generally takes action by majority vote.  It could do so with respect to this matter as well.  An analogy might be to the Court's role in approving changes to the Federal Rules of Civil Procedure or to its own rules.  Seen as a kind of rule of procedure, whether to have cameras  in the courtroom would be decided by majority.

2) Let the Chief Justice decide.  The Chief makes various administrative decisions for the Court, typically in consultation with the other Justices, but insofar as he has a special administrative role that the others lack, he could tackle this one.  I tend to think that CJ Roberts would not want this task--especially if he favors permitting cameras and one or more colleagues strongly oppose (as they do).  If you're going to override strong opposition, you'd like some cover.

3) Delegate the decision to a single Justice or a Committee.   Like a tiny faculty, the Court parcels up committee work.  It might do so here, but the same factors that lead me to think the CJ wouldn't want to go it alone here lead me to think that no one would want this thankless task.

4) Require unanimity to change the policy.  This may well be the actual rule, even if unofficially so.  Insofar as any individual Justice really doesn't want to be on tv, the others could be deferring to him or her.  But I question the legitimacy of such an approach.  If the holdout is worried about changing the dynamic of oral argument, that is either a worry about his colleagues--in which case the fact that they're not worried should count for a lot more--or a worry about himself--which is peculiar: he should just try to exercise some self-restraint.  I wonder if instead the concern here is that overriding any Justice's wishes to permit cameras in the courtroom feels like an invasion of that Justice's privacy.  This strikes me as misguided--especially if coming from a Court that does not seem to value actual privacy all that much.

5) Require consensus to change the policy.  This is simply a variant on unanimity and should probably be avoided for similar reasons.

So, bottom line: I would favor having the Justices decide this issue by majority vote, with no Justice taking account of the existence or strength of any other Justices' views as such (as opposed to listening respectfully to their arguments).  But I think it's more likely that it will take either unanimity or consensus to change the policy.

Judicial Activism and Police Authority, or, I Lost in Traffic Court and Now I Want to Grouse About It

-- Posted by Neil H. Buchanan

Early in August, I was stopped in Ithaca for a traffic violation. The officer said that I had failed to stop at a stop sign. I told him that I did stop, and he tried a number of tactics designed to get me to admit that I did not. When none of those ploys succeeded, the clearly-frustrated officer gave me the ticket anyway; but he did tell me that I could contest the ticket in court. Based on Professor Dorf's recent experience with a nearby town's traffic court, as well as word of mouth from other friends and colleagues who live in other New York towns, I had reason to believe that there is a semi-formal plea bargaining system at work in most of the state's traffic courts; so I thought I would go through the process to see what would happen. I also thought that it would be interesting just to see it all through to the end, even if there was no offer-in-compromise forthcoming. (Being on sabbatical has its advantages.)

There are actually some pretty troubling legal issues involved in this otherwise-mundane incident. As an initial matter, the traffic stop includes some rather interesting Miranda-type questions. The officers in Ithaca are apparently trained to get motorists to make statements that could be construed as admissions of guilt. For example, the officer who stopped me said, "You know why I stopped you, right?" and, "Maybe you think that just stepping on the brake counts as stopping?" and, "I'm going to give you a ticket. Is that OK?" Any of these questions could induce a flustered and unwary motorist to say things that would look bad in court. It turns out that a traffic ticket in Ithaca includes a section filled out by the officer that includes any statements made by the motorist that could be deemed incriminating; and the ticket -- which the motorist receives after the contact with the officer -- warns the motorist that that section of the ticket constitutes a deposition admissible in court. In my case, however, none of these tactics worked. My only statement entered on the deposition section was: "I stopped. I don't roll stop signs." Why he put anything in that section is a mystery.

In the first week of September, I went to the traffic court hearing, at which I expected either to be offered a deal or given the opportunity to contest the violation. Neither happened. Instead, it turned out to be a simple plea hearing, after which I was given a trial date. I considered simply paying the fine at that point, but the judge told me that the standard of proof was beyond a reasonable doubt, and he did not seem annoyed by the idea that I was insisting on my day in court. If nothing else, I thought, I would have a story to tell my students about New York State's odd system of local courts (which I discussed in a post during Dorf on Law's infancy).

The trial was handled very informally by an avuncular judge (although I am not sure if he was an actual judge or merely a non-lawyer "justice" in the local system, the court's website providing no relevant information). The judge explained how the trial would work, reiterating the standard of proof, and the officer then recited the circumstances of the traffic stop. I was then sworn under oath and testified that I did, indeed, stop. I also offered testimony that is too personal to relate here, but it was medical information supporting my position. As one would imagine, this entire process lasted only a few minutes.

The judge then said that he was finding me guilty. His explanation was fascinating. He told me that my testimony did not create reasonable doubt, because I was a self-interested party and thus could be expected to lie (although he did not use that word). He then said that my medical information was insufficient, because I would have had to bring in an expert witness (to traffic court!) to testify that there was "no doubt" that my testimony was accurate.

Therefore, assuming that the judge's comments accurately reflected his reasoning, he based his verdict on two very disturbing premises: (1) Everyone who testifies on their own behalf in traffic court is a perjurer, meaning that he does not need to worry about assessing witnesses' credibility or any of the other duties that we normally associate with triers of fact, and (2) The burden of proof is not merely reversed, but is actually higher than the reasonable doubt standard, i.e., a "no doubt" standard that can only be met by expert witnesses -- although it is unclear if even an expert could meet that standard, if the judge felt that an expert that I hired would be presumptively biased in my favor.

As a matter of policy, I could well imagine a regime in which traffic tickets are viewed under different legal standards. It is easy to imagine word getting out that all one must do to beat a ticket is to be willing to spend some time in court and then lie on the stand. We routinely offer a great deal of discretion to police officers, and juries typically believe their testimony in much more serious cases. If we allow traffic court judges to start saying, "I don't believe police officers, even some of the time," the public could come to view the traffic laws with even less respect than they already do.

On the other hand, with constantly-improving technology, it is easy to see how any jurisdiction could solve this problem. We have videos of police stops in most jurisdictions, cameras mounted on traffic lights to catch violators, and so on. Making a video of a stop sign violator should not be difficult for an officer assigned to a particular intersection. Moreover, it actually does take a lot of time to go through the system. Two court appearances, including waiting through other hearings, is more of a commitment of time than many people would be willing or able to undergo, especially since there is no guarantee that the judge would view their testimony as credible (for legitimate reasons, not as a presumption). It does not seem, as a predictive matter, that actually taking the legal standards seriously would lead to lawlessness.

In any event, this is a classic case where a judicial actor has usurped a legislative role. If it does not make sense to try traffic cases on the beyond-a-reasonable-doubt standard, or to believe that people who testify under oath are telling the truth, then it is the state legislature that should say so. No matter where one stands on, say, Griswold, nearly everyone with legal training would view this as rank judicial activism. Low-bore judicial activism, to be sure, but clearly judicial activism.

Returning from this simple legal theory discussion for the first week of 1L, I should add that this loss was otherwise easy for me to take. The judge reduced my fine in recognition of my time spent in court (although he did not tell me what the full penalty would have been, making it impossible for me to know how much leniency was bestowed upon me); and it turns out that violators can erase the "points" from their driving record by taking an on-line defensive driving course. As disappointing outcomes go, this will not keep me awake at night.

Moreover, as a career academic who has never practiced law (and never will), I now have a courtroom war story. And I am retiring with a perfect trial record!

Of Fear, Fuzz, and 'Uncertainty'

By Bob Hockett

I wonder whether, like Neil (see last Friday's great post) and like me, you who are reading this post have noticed the frequency with which a new word appears to be finding its way into the public statements of Republicans and their wealthy clients these days.  The word is 'uncertainty.'

Wednesday morning last week I heard the representative of a trade group, who is lobbying for the repeal of certain regulatory paperwork requirements to which some businesses are subject, employ the 'u' word in justifying the sought repeal.  Businesses, he said, were faced with 'uncertainty' insofar as they had to fill out such forms, which is unfortunate indeed during slump times when firms are still hesitant about new investment outlays and hiring, and when banks are in any case hoarding.

The weekend immediately preceding that Wednesday, I heard House Minority Leader Boehner employ the same word in attempting to justify new lower tax rates for millionaires and billionaires.  Allowing the astonishingly large 2001 Bush tax cuts for millionaires and billionaires to lapse early next year as the 2001 legislation itself mandated, he claimed, would induce 'uncertainty' among business executives, which would be unfortunate indeed during slump times when firms are still hesitant about new investment outlays and hiring, and when banks are in any case hoarding.

Prior to that weekend, I heard many additional uses of the 'u' word from other Republicans and their clients, in each case to justify some benefit -- either in pecuniary or in regulation-evasive form -- for millionaires, billionaires, or 'small businesses.'  Neil this past Friday catalogued some from this past summer.  Hmm, I wonder, what -- apart from the government to the wealthy, per these Republicans' wishes -- gives?

To be perfectly candid, my first, albeit naive and fleeting reaction upon hearing the word 'uncertainty' employed with such abandon by Republicans was something on the order of, 'wow, this is welcome news!'  For, as many of us who have sought to diagnose either or both the nation's recent financial woes and its continuing economic slump have been arguing, our financial markets and our macroeconomy are very Keynesian things: 'Keynes Chapter 12,' or 'Knightian' uncertainty as distinguished from actuarial risk is by far their most salient characteristic in times of boom and in times of bust.  And many mistakes made by Republicans and 'moderate' Democrats alike where the regulation of financial markets and the framing of fiscal and monetary policy are concerned, for their part, are attributable precisely to these people's not having hewed to, or in most cases so much as noticed, the distinction.  (For more on its significance, see my post here in September of last year, on Keynes, Richard Posner, and James Dean.)

The false belief that rational expectations on the part of economic actors -- which might indeed be formed and acted upon by most -- are always accompanied by a capacity to assign determinate probabilities to all future contigencies, for example, seems to have led most Republicans and many Democrats to think silly things.  (See the aforementioned post.)  They appear to have supposed, for example, that bubbles and busts in financial markets are incompatible with individual rationality and informational efficiency in those markets.  And they have sometimes suggested that sundry monetary and even fiscal policy changes are doomed to ineffectuality simply by dint of affected parties' capacity precisely to anticipate, calculate, and 'discount' -- that is, in this case, to sidestep or otherwise neutralize -- with precision all effects of those changes in advance.  A favorite trope, that one, of those who brouht you the so-called 'rational expectations revolution' in macroeconomic 'thought' late in the 20th century.  Such suggestions have proved erroneous precisely by dint of their resting upon the conflation of uncertainty with actuarial risk.

Against this backdrop, then, it naturally seemed good news, at least at first, that Republicans were now embracing the category of Knightian uncertainty -- particularly as their party had conspicuously embraced the thinking of the aforementioned 'rational expectations' types in the 1970s and especially '80s.  So 'if only,' one thought, 'Alan Greenspan and his acolytes had discovered the "u" word ten or more years ago!  But better late than never.' 

And yet now comes a puzzle:  Uncertainty, or even risk for that matter, seems to have no application what ever to the Bush millionaire/billionair tax cuts, as Neil nicely brought out last week.  Nor does it seem to have much if any bearing on regulatory paperwork.  After all, what could be more certain, or even more measurable, than the changes long set -- set for ten years! -- to take place in the taxes owed by millionaires and billionaires come 2011?  And what could be less uncertain than what is required, in the way of paperwork, by legally prescribed boilerplate forms?  In view of the manifest determinacy and long-anticipated occurrence of these now finally imminent occurrences, the affixing of the predicate 'uncertain' to them by Republicans right now seems initially curious indeed.  Is it just a case of poor word-choice?

I think, sad to say, that there might be a better explanation.  The first clue emerges when we recall certain rhetorical and related political strategies characteristic of the Bush campaign in 2000.  Further, supporting clues emerge when we turn then to political strategies employed by both the Bush administration and the Republican Congressional caucus, from about 2002 through 2008.  Here is the tentative story, which I admit to be merely conjectural for now:

To begin with, first recall a puzzling exchange that occurred during the first Bush-Gore presidential debate in the autumn of 2000.  In discussing candidate Bush's then-proposed massive tax cut plan and Social Security privatization scheme, Gore cited the recklessness of both proposals, and provided precise CBO estimates of the likely fiscal and budgetary impact of the tax cut plan in particular.  Bush for his part had no rebuttal at all.  He offered no reason to doubt the budget projections, and offered no contrary figures of his own.  Instead he said, simply, 'fuzzy math,' while wearing one of the more fuzzy expressions I've ever seen on a human face.  (He proved capable of continuing to wear it for many years thereafter.)

In thinking about Bush's surprisingly weak response (even for  Bush) at the time, it occurred to me that what Bush was doing was probably no more than acting upon a very well Rove-calculated strategy.  The aim, I hypothesized, was effectively to 'implant,' by suggestion, a perception of fuzziness or indeterminacy in the minds of debate viewers, whom Rove probably had (not implausibly) guessed were innumerate and readily manipulable where attitudes toward budget projections were concerned.  'Get Bush conclusorily to ascribe fuzziness and look puzzled himself,' I surmised Rove to have probably calculated, 'and you will effectively exploit viewers' mirror neurons and get them to experience something like fuzziness and indeterminacy, and thus to discount Gore's knock-down argument.'  How I then yearned for a 'Senator, you're no Jack Kennedy' moment -- in this case, some such rejoinder from Gore as 'the arithmetic's clear, Mr. Governor, any fuzz here is strictly in your confused head.'

My provisional interpretation of the bizarre 'fuzzy math' trope later found what struck me as corroboration in the subsequent strategy of global warming skeptics and their deep pocketed petroleum-extracting sponsors, to finance and promote sundry self-styled 'studies' purporting to show that the case for climate change is still undecided and up for grabs.  Make it look as if there's still real 'debate,' on this question, as Neil has noted these people to reason, and you will induce in them doubt and uncertainty about what to believe, hence induce them to fall back on stasis.  For one tends, where there's doubt, simply to keep doing what's been done -- a Burkean variation on the tendency that Keynes noted on all of our parts to assume, absent affirmative reason to the contrary, that tomorrow will be more or less much like today.

So here is my conjecture about Republicans' recent discovery of the 'u' word: I'll bet the Republicans are now acting, pursuant to deliberate strategy, to instill the uncertainty they pretend attaches to expiring millionaire/billionaire tax cuts and to all forms of externality-preventive regulation.  They're aiming to do so, in part, just as Rove did  in programming Bush to say 'fuzzy math' and look, well, fuzzy-faced in that first debate.  That is, again, by 'communicating' (in the 'communicable disease' sense) or inducing that sense of uncertainty by suggestion, in effect commandeering our mirror neurons -- the things that lead us to smile when we see smiling, to tear up when we see weeping, and to fear when we see others fearing -- to manipulate our very perceptions and mood. 

Republicans also appear to be aiming to do this -- to foment slump-sustaining uncertainty -- by another, by now more familiar and complementary means.  That is by randomly obstructing most pending recovery-facilitative legislation, while occasionally letting some through.  For erratic governance of course does constitute a ground for uncertainty.  The party of 'no' is in this sense holding our economic recovery hostage. 

Why would Republicans do this?  I can see two related possible reasons:  First, as Mike and I have discussed together in recent days, by so doing the Republicans can (falsely) attribute the uncertainty that many now Keyesianly -- and rightly -- blame for our ongoing hording and slump, to what are quite unrelated factors that the Republicans are bent upon changing for reasons having nothing to do with the health of the economy.  Tax cuts for millionaires and billionaires, for example, only fuel speculative bubbles, not real investment or economic growth.  For millionaires and billionaires manifest very low marginal propensities to consume.  But Republicans nevertheless have other reasons to channel money to these -- their bankrollers -- notwithstanding their harm to the broader economy.

Second, by actually causing, instilling or fomenting continuing uncertainty, hence continued economic slump, Republicans can enhance their own electoral prospects.  That is the case precisely by dint of the public's oft-encountered Pavlovian tendency (itself actively encouraged by Republicans but also by others when out of power) to blame whoever is currently in the White House for the economy's current performance.

If I am right about this, then Republicans effectively just are the disease for which they puport to be offering a 'cure,' as Karl Krauss might have put it.  They are the cause of continuing slump-protracting uncertainty, hence the cause of continuing slump.  And that is a shame -- not to mention a dangerous game.  It is even more dangerous, in view of the present state our economy, than was Bush's bizarre claim in 2005 that the Social Security trust fund required privatization because it contained 'only IOUs.'  As if Federal Reserve notes -- yep, dollar bills -- didn't themselves rest on trust for their value, and as if U.S. Treasury bills had not long been the gold standard, virtually equivalent to cash, where safe investment vehicles are concerned.

Is my conjecture correct, then?  Are the Republicans in fact aiming to cause the very uncertainty -- and with it the very dangers -- that they ridiculously attribute to long-anticipated phase-outs to destructive and budget-busting millionaire/billionaire tax cuts from 2001, and to familiar boilerplate regulatory requirements?  Well, one reason to think so is the obvious implausibility just mentioned -- that of the link they attempt to draw between continuing uncertainty on the one hand, and the tax cut phase-out and regulatory boilerplate on the other.  Another reason to think so is the Republicans' regular resort to fear -- 'terrorism uncertainty,' let's call it -- as a political strategy from 2001 through 2008.  Against that recent historical backdrop, the Republicans' late discovery of Knightian uncertainty looks simply to be a retooling of the by now shop-worn terrorist fear strategy for use in the economic domain, capitalizing on the recent rediscovery of the wisdom of Keynes in so doing to boot.  Surely it isn't implausible to hypothesize some such strategy as this on the part of the Republican party.  If you are finally learning that 'it's the economy, stupid,' after all, but at the same time are still inclined to appeal to anger, fear, and others of our baser attributes rather than to hope, charity, and solidarity, then inducing Knightian uncertainty is for you.  It is your Terror Paranoia 2.0.

However plausible my conjecture, though, the real clincher -- what would make clearest of all that the Republicans are up to what I'm supposing -- would be our finding another nice memo from Frank Luntz.  Mr. Luntz, recall, is the current crown prince of negative Pavlovian political strategy among the Republicans, whom we've found occasion to notice before here at DoL.  Just as Luntz counseled Republicans simply to repeat, over and over and over again, the word 'takeover' in connection with health insurance reform, and then the word 'bailout' in connection with finance-regulatory reform, he might well have counseled, in a similar memorandum, that Republicans now begin to incant the 'u' word over and over and over again in connection with millionaire/billionaire tax cuts, as well as with all forms of externality-preventing regulation.  Let us, then, look for this memo.  It's virtually certain to be out there!

And while we are searching, as an antidote to this latest round of Republican anger-, fear-, and 'uncertainty'-mongering, let us recall the level headed wisdom of this great Republican of the not so distant past, who acted to calm the nation at another time of politically prompted paranoia:  .  And let us remember the wisdom of this great Democrat as well, who presided the last time we lived through economic times like those we're now seeing.  When he said that all we have to fear is fear itself, he wasn't just playing on words.  He meant it.  Contrast that with today's Republicans, who seem to fear, most of all, that you won't be afraid come November.

The Bush Tax Cuts and Uncertainty

-- Posted by Neil H. Buchanan

The imminent expiration of the 2001 tax cuts has continued to dominate the political debate this week. In a post on this blog on Tuesday, Professor Dorf nicely described the political dynamics of the debate; so when I sat down to write my FindLaw column for the week (published yesterday here), I thought I would discuss the economic arguments in favor of the Republicans' desire to extend the tax breaks for people with incomes over $250,000 per year. (I had also discussed the extension of the Bush tax cuts earlier this month in a radio interview, which is available here.) As some people have finally started to point out, extending the cuts for the lower 98% also helps the highest 2%, because the extension of the tax cuts will apply to the first $250,000 for everyone, even the rich. Therefore, the real argument is about extending the considerable tax advantages in the 2001 bill that benefit only the richest taxpayers.

Perhaps unsurprisingly, the economic arguments in favor of this position are so weak that the discussion ultimately returned to politics. The non-political arguments to extend the high-end cuts boil down to hoary trickle-down economics (taxes on rich people and businesses should never go up, because those groups always respond to taxes negatively) and its variants (taxing rich people will cause them to stop spending and/or shrink their small businesses). None of those arguments withstands even the most passing scrutiny.

One of the arguments that I discuss in the column is contained in a letter from some "red-district Democrats" to House Speaker Pelosi, who argued that "in times of economic recovery it makes good sense to maintain things as they are in the short term, to provide families and businesses the certainty required to plan and make sound budget decisions." As I point out, the best way to provide certainty is simply to make a decision as soon as possible, whether that involves extending all, some, or none of the tax cuts. Because people currently know only that the default is unacceptable to everyone, only political gridlock can result in the tax cuts simply expiring. If the Obama plan were enacted today, it would remove that uncertainty no less than enacting the Republicans' plan. The real argument, therefore, is not about uncertainty but about the merits of allowing taxes to increase on the top two percent of earners.

This general theme, that it is uncertainty that is killing the recovery, has become a constant refrain from those who oppose Obama's policies. For example, in a blog post over the summer, I discussed a David Brooks NYT op-ed in which he claimed that small business owners in Yakima and Racine are so scared about possible new taxes and a fiscal crisis that they are refusing to hire new workers. Similarly, in July I discussed a claim in a Washington Post editorial that businesses are too shaken up by real or proposed changes in health care, financial regulation, and energy law to be confident about the future. Again, it seems obvious that these are merely excuses, because a failure by Congress to address problems in health care, financial regulation, and energy law could also have been blamed for businesses' uncertainty about the future.

Earlier this week, an economist at Harvard published an op-ed in the Wall Street Journal, in which he claimed to have demonstrated empirically that spending cuts -- not Keynesian spending increases -- are expansionary. The op-ed is rather poorly written, to be honest, making it difficult to follow whether he is against spending increases or tax increases, or some combination of spending and tax changes, under some ever-shifting set of economic circumstances. Even after sorting that out, however, at least two problems remain: (1) As pointed out here, the empirical analysis (based on fiscal policy changes in the 21 OECD countries from the 1970s onward) simply doesn't support the conclusion that a country in a deep recession with near-zero interest rates (like the U.S. today) can expand by contracting; or as Paul Krugman put it: "Here’s a comprehensive list of [cases where austerity led to growth]: Ireland 1987"; and (2) The claimed theoretical basis for this claim is once again either trickle-down ("Consumers and especially investors are more willing to spend if they expect that spending and taxes will remain limited over a sustained period of time.") or based on businesses' need for certainty ("[American businesses'] uncertainty over regulation and taxes discourages them from risk-taking, investment and consumption.")

As a Keynesian, and thus a believer in the importance of "animal spirits" in determining business investment, I cannot simply dismiss the idea that businesses might worry about future changes in economic policies. Even so, there is nothing about a cut in government spending that would create greater certainty for businesses. They would know, after all, that if spending cuts do not succeed in helping the economy, then policy could be changed later. (For that matter, they know that policy can be changed later for any reason.) They also know that spending increases could later be cut back if the economy begins to recover. Indeed, even if businesses do not expect government spending increases ever to be repealed, standard conservative economics tells us that businesses will accurately forecast an increase in future taxes to pay for that spending. That is why they are supposedly scared of spending increases today, even though those spending increases will result in more customers for those businesses immediately.

It is, therefore, not a matter of uncertainty, but a fear of higher taxes that drives this explanation. In other words, "Spending cuts will help by making future tax increases unnecessary and by reducing uncertainty," really means, "Spending cuts will make future tax increases unnecessary." And now we're back to trickle-down theory: cut taxes for the rich and for businesses, and they will make us all rich.

This is not the place to replay the weakness of trickle-down economics, except to say that it has no stopping point. Even zero rates are not enough, because it is always possible to subsidize businesses (giving them negative tax rates), financed by taxes on working people. It is worth pointing out, however, that there is a role for uncertainty in the explanation of the business cycle: Businesses are not willing to invest or hire when they see no reason to expect more customers. Blaming free-floating uncertainty about possible future policy changes, however, proves too much -- and therefore nothing at all.

Is 'Meat Apparel' Offensive? If So, Are Leather-Bound Bibles, Leather Jackets, Shoes, Watchbands, Etc.?

By Bob Hockett


(N.B. This post is cross-posted on ReligiousLeftLaw.com)

As someone whose law school was recently compared to this artist by the Wall Street Journal --  http://blogs.wsj.com/law/2010/02/03/the-cornell-law-mystery-continues-or-why-cls-is-like-lady-gaga/ -- I suppose I am under something akin to a fiduciary duty to learn more about Lady What's-Her-Name. But alas, I doubt I could pick her out of a lineup that included herself, Brittney Spears, Madonna, or even Debbie Harry in some of her past guises.

As it happens, I often am plagued by this problem, and in a much more general way, where celebrity is concerned. In the past, for example, I have wondered 'just what's the difference between Rob Lowe, Matthew Broderick, and Tom Cruise, anyway' or even among Lee Iacocca, Ed McMahon, and Helmut Kohl for that matter. Incessantly assaulted by their vaguely cross-reminiscent images as I've been, I have done what I suppose any creature with limited RAM would do: I have made them share memory space, so as to leave room for other, more interesting fare.

This tendency of mine, I admit, might be partly the product of a hermit's or nerd's or curmudgeon's sensibility. After all, is there really any doubt that Helmut Kohl and Ed McMahon were not the same person? They didn't even occupy similar roles, for heaven's sake! But at least where the celebrities in question are celebrated for little more than their 'fashion statements,' I think my lumping of some folk together might be pardonable. For it does seem that most who are known for these things tend to recycle earlier such 'statements' all of the time. They invite assimilation to others.

At last Sunday night's Video Music Awards (VMA), for example, a number of notables whom I've never happened to note or notice before evidently wore something called 'garbage bag dresses' -- outfits made to look like large black plastic refuse bags, as if the wearers had been dressed by the 'Man from Glad.' See, e.g., here: http://celebs.gather.com/viewArticle.action?articleId=281474978515060 . And so, well, 'how delightfully nostalgic,' I thought upon hearing about this on Monday. For I recall reading, in a memoir of hip 1970s New York, that Debbie Harry used to wear something like this, fashioned in her case of real garbage bags, at Max's Kansas City on Park Avenue during what was surely one of the hippest periods in recent history. (Here's a somewhat disppointingly glitzed version of the outfit as she wore it on a British television program later on, in the 1980s: http://www.youtube.com/watch?v=dYON9Uv9MBU .) And those were times that I sometimes wish that I could have been part of. (Incidentally, Sherry's, Mike's, and my colleague Kevin Clermont, I am told, used to attend some of Andy Warhol's factory events, at which the Velvets played and Gerard Malanga and Edie Sedgwick danced like ecstatic lunatics. (Here's what it would have looked like to Kevin: http://www.youtube.com/watch?v=iNwp4nNTeJg&feature=related .) Yet another respect in which I can only envy, never equal, the man!)

Most talk of Sunday night's VMA fashion, however, has centered not around garbage bag apparel, but yet another fashion statement on the part of the aforementioned Lady What's-Her-Name -- in this case, a 'meat dress.' Here are two images: http://www.huffingtonpost.com/2010/09/13/lady-gagas-meat-dress-photos_n_714117.html .

My first thought upon hearing this Monday was, 'hey, that's my idea!' The reason, you see, is that some bandmate/artist friends and I, during the brief period that we were sort of 'cool,' conceived a music video back in the '90s in which we would wear something we called (simulated) 'meat bikinis.' And, wouldn't you know, it turns out that Lady What's-Her-Name has worn one of those too, on the cover of some version of Vogue magazine: http://www.huffingtonpost.com/2010/09/07/lady-gagas-meat-bikini-vogue-hommes_n_707357.html .

Apart from feeling a bit robbed, however, I didn't take any offense at this 'statement.' Yet others have. If you click on the link just prior to the last, for example, you will note that HuffPo polled readers on the matter, a majority of whom upon last viewing were deeming the outfit 'offensive' rather than 'awesome.' (I'd simply call it 'bloody,' and perhaps a bit more 'fatty' than I'd have thought a modern fashion-conscious celebrity to be comfortable with.)

What I can't quite figure out is, why is it that so many evidently find M. Gaga's outfit offensive? Do not scores of millions of Americans, day after day, wear meat jackets, meat shoes, meat watchbands, and the like? Don't others sit daily on meat seats when driving their expensive sportscars, read meat-bound Bibles and other holy books, and, of course, consume meat meals all of the time? If so, then don't most Americans do daily more or less the same thing that Ms. G did last night, only moreso and more regularly? Is there any more distinction between her and us than there is between Mickey Rourke and Bruce Willis?

One possible distinction between Lady G and others was proposed by Mike in an email conversation with Sherry, moi, and a number of other conscientious objectors to animal exploitation: It is that the objectors might be objecting to the sheer waste involved in Ms. G-g's couture, which waste they do not perceive in their own consumption of animal products because we all must, after all, dine and protect ourselves from the elements.

I think Mike's conjecture quite as plausible as it is characteristically charitable. But I can't help but think there's another element at work here as well: Perhaps those who object to Ms. G-g's apparel are especially disturbed by the waste it involves precisely because it occasions their (at least subconsciously) noticing the waste involved in their own practices. For, as Mike also suggested in the mentioned conversation today, as well as in earlier weblog posts of his own, to kill our fellow creatures for clothing and nourishment is itself wasteful, not to mention unhealthy, inasmuch as we're able to nourish and clothe ourselves now without resort to such expedients.

Perhaps some such thought-provocation as this is what Lady G had in mind in her choice of apparel last night. Certainly it is what my bandmate/artist friends and I had in mind with the video I mentioned -- though in this case the point was to drive home not only the animal-exploitation 'message,' but also a more general woman- and even humanity-exploitation message that magazine cover and mass media life-culture had brought to our not very subtle young minds. (We were great fans, in those days, of Guy Debord's situationist manifesto, The Society of the Spectacle, and convinced that mondern American life had become little more than a bad television program with lots of canned laugh-tracks, baddabooms, impossibly emaciated barely clad women, and comical 'tragedies' like tattered shag carpets and shattered lava lamps.)

As it happens, however, I doubt that any of this is what Ms. Gaga had in mind. But who cares? If the apparel gets people to thinking, or to confronting their own less-shocking-only-because-more-familiar practices, it will have served a useful purpose. And that is surely one function of art. Ms. G-g's is a lumpen, mass-marketed sort of art, to be sure, but a 'prole art threat' is no less potentially salutary for that: http://www.youtube.com/watch?v=kvG5fUDTaFc&feature=related .

Comparing Invasions of Privacy

By Sherry F. Colb

In my FindLaw column for this week, I discuss the D.C. Circuit case of United States v. Maynard, in which the court held that police must adhere to Fourth Amendment "reasonable search" requirements when using a GPS device to monitor the location of a target's vehicle 24/7 for a month.  The column considers the viability of this holding, part of a circuit split, once the Supreme Court takes the question whether GPS monitoring qualifies as a "search" falling within the protection of the Fourth Amendment.  The D.C. Circuit's theory is that unlike people on the street (who can see your car out in public), no individual in public will -- in the absence of GPS technology -- be in a position to observe all of your comings and goings in your car.  Such observation enables an understanding of your routines, and departures from those routines, that conveys far more information about you than the discrete snippets available for public viewing when you venture out in your car.

In this post, I want to consider respects in which GPS monitoring might actually be less intrusive than an analogous viewing in public by police.  That is, although the GPS provides far more (and more thorough) information about you than someone driving behind you on the roads would be privy to, there are also ways in which being followed is worse than having one's movements tracked by GPS device, all other things being equal, although, of course, they are not.

First, when police follow you (as opposed to tracking you via a GPS), they can see you and therefore see what you do while in your car, whether you place anything in your trunk, and whether you take passengers, either from the beginning of the journey or in the course of your travels.  A GPS will not give police any of this information.  If one were given the choice, then, of being followed by police all of the time while in one's car, or being tracked with a GPS, one might well prefer the latter to the former.

Second, when police follow a person, the person can see the police in pursuit.  This "transparency" has the advantage of allowing the person to act in a way in which she feels comfortable acting in front of a watcher.  On the other hand, and for similar reasons, this transparency is also quite inhibiting and potentially intimidating.  Where you might otherwise have played music and sung along with your radio, you could now worry about how this might appear to the police behind you and leave the radio off.  Where you might have stopped your car at the corner and handed money to a homeless person, you could now worry that this would appear to be some sort of illegal transaction.  And where you might have given your companion a kiss at the red light, you could feel uncomfortable about doing that in front of the police.  Finally, you might feel a sense of constant anxiety about whether the police will, mistakenly (or perhaps correctly) believe that you are acting in violation of the myriad traffic laws that apply on the road.  Installation of a GPS device on your car would have few of these effects.  In this sense, your ignorance of the surveillance might represent bliss.

Third, if police were to follow you, neighbors and others in the vicinity of your car might well assume that you have done something to trigger the officers' suspicion (despite the fact that police need not have any suspicion at all to justify their following you, as a matter of Fourth Amendment law).  This could be quite humiliating even if only strangers are in a position to watch, and might damage your reputation in the community, if people recognize the person being followed as you.  To the extent that you enjoy anonymity in your car, a police "escort" of this sort singles you out for derision.  For this reason, for example, although the Supreme Court considers home arrests more intrusive than public arrests (and therefore requires an arrest warrant only for the former but not the latter), some people would doubtless prefer to be arrested in the privacy of their own home rather than in full view of every person, stranger and acquaintance, walking down the street at the time.

As I said above, of course, all things are not equal, and the police do not have the resources to place a constant tail on people for no reason.  GPS monitoring, on the other hand, is quite cheap and therefore requires little sacrifice or resource allocation by the police.  As a result, as a practical matter, police will generally not be in a position to follow people physically for extensive periods of time (comparable to the month-long GPS surveillance at issue in Maynard).  The choice will therefore rarely be "should we attach a GPS device or have an officer follow the person around all of the time?"  If the former requires a warrant, then the police will be left with one option:  develop probable cause and obtain warrant, or leave the person alone.  It is therefore the inefficiency of physical surveillance -- and not necessarily the special intrusiveness that GPS tracking entails relative to its physical analogue -- that makes the GPS device such a threat in police hands.