Friday, February 26, 2010

Loving the Enforcers

-- Posted by Neil H. Buchanan

My FindLaw column this week, published yesterday, discusses the recent attack on the IRS building in Austin. My major purpose in writing the column was to defend the IRS and its employees against the irresponsible and utterly false attacks from those politicians and commentators who pander to anti-IRS and anti-tax sentiment.

As I often tell my students in the basic Federal Income Taxation course, the truly surprising thing about the IRS is how well it is run. Even though it is systematically and chronically under-funded (precisely because of the political pressures that reflect -- and reinforce -- public hatred of the agency), and even though it faces the Herculean task of interacting each year with virtually every adult and business in the country; it has an enviable record of professionalism.

Consider the records of just a few other agencies (public and private). During George W. Bush’s tenure, the Department of the Interior was rocked by a scandal involving sex and drugs in exchange for favorable treatment for those whom the department was supposed to regulate. Police forces are accused of unjustified killings of civilians, and some of those accusations are found to be true upon investigation. Financial ratings agencies “work the numbers” to keep clients happy. By contrast, the IRS has many thousands more employees, with literally trillions of dollars flowing through the agency each year, yet repeated investigations into the Service’s activities turn up no systemic problems and amazingly low numbers of isolated errors.

One particular aspect of my column is worth emphasizing. I point to the 1998 hearings held in the Senate Finance Committee at the end of the second Gingrich Congress. The committee held hearings that were designed to expose the IRS as a corrupt, arrogant, abusive agency that had spun out of control. People were brought in to tell their tales of horror, with a sympathetic committee assembled to listen.

As I describe in my column, not only was the most shocking horror story later exposed as a tissue of lies -- the person who testified to having seen the events later admitting that he had not even been present, and the other participants denying the explosive testimony that he had offered to Congress -- but the more pedestrian claims turned out not only to be tiny in number, but also largely baseless.

Writing a column like that one, of course, is one of the benefits of tenure. Being known as “the guy who loves the IRS” might lead to some hostility, but I am not in danger of being fired for my unpopular views. Politicians who know that the IRS is a convenient scapegoat, however, have no guaranteed tenure, and thus they refuse to step up and defend the Service and its employees from irresponsible accusations. This is a tragedy, not only because of the recent Austin attack on an IRS building but because day-to-day threats against IRS employees are high and rising.

None of which should be a partisan matter. In fact, if anything, the group that likes to think of itself as the "party of law and order" should be expected to be especially worked up about showing proper respect for those who are on the front lines of enforcing the law. It is thus interesting to think about when and how different people respond to the suggestion that there is a reason to resist and criticize law enforcement.

In the 1950's and 1960's, liberals frequently disparaged the police and the military. This was based on the belief that the laws were not only unjust but that the enforcers of that law were making matters worse. The civil rights movement faced institutionalized racism, racism that frequently showed itself in brutal police tactics. (The most enduring image is probably Bull Connor's men attacking African Americans in the streets of Birmingham.) The movement against the Vietnam war had two especially memorable moments of violence: the Chicago police attacks on protesters at the 1968 Democratic convention, and the killing of four students at Kent State University in Ohio. Some people took to calling the police "pigs," and the public at large (even those who did not call the police names) was shocked. By the time the seventies came along, the atmosphere of anger toward police was widespread enough that defenders of the police took to putting bumper stickers on their cars with slogans like: "If you don't like cops, next time you're in trouble, call a hippie!"

It would appear, then, that there is a nice parallel: Liberals (loosely speaking) grew to dislike the police and the military because of their belief that those institutions were out of control and not on the side of "the people." Conservatives (again loosely speaking) today dislike the IRS because of their belief that the Service is out of control and not on the side of "the people."

It is a nice parallel at first glance, but it breaks down almost immediately. The evidence was plentiful in the 50's and 60's that more than a few police officers and some military personnel actually had engaged in violent activities aimed at particular groups. Moreover, liberals never claimed that the police or the military were irredeemable or that their basic functions were illegitimate. Instead, institutions like citizens' review boards came into being, in an attempt to end the abuses that we had seen with far too much frequency. Those who vilify the IRS, by contrast, simply believe as a matter of faith -- beyond all objective evidence -- that tax collectors are abusive and corrupt. They do not look for reasonable approaches to improve IRS conduct but claim instead that the Service is beyond salvation. The good news, that the enforcers really are following the rules, is simply too inconvenient.

As I said in my column, no one likes to be caught doing something wrong; and the enforcers of laws will, therefore, always be met with some hostility. What separates those who hate the tax enforcers from everyone else is that the IRS bashers are not reality-based. Why does that problem seem so familiar?

Thursday, February 25, 2010

Constitutions and Restaurants

By Mike Dorf

As promised yesterday, here is a further thought on my latest FindLaw column. In the column, I argue that issues of constitutional law are never fully settled, because they are always open to the possibility of re-examination. If I'm right, that creates a problem, because one of the basic purposes of law is what is sometimes called "the settlement function," i.e., the law's ability to resolve questions so that everyone knows the answer and energy is not wasted fighting over the law's meaning. Settled law permits people to rely on the law, and thus to make investments based on relatively certain expectations. People who think the settlement function of law very important relative to other functions of law (such as substantive justice) tend also to have a commitment to rules rather than standards and, typically, to static interpretive approaches (such as originalism) rather than dynamic ones (such as living Constitutionalism). Constitutions themselves, insofar as they establish bedrock structural features and fundamental rights, are thought to be especially important for settlement.

But the possibility that settled interpretations of the Constitution can be upended means that in many areas one can never fully rely on the Constitution itself to provide a lasting settlement--and that's true even if some long-lasting settlement is not ultimately upended. Like the sword of Damocles, the possibility of upsetting a settlement prevents (some measure of) reliance so long as it remains a live possibility, even if never realized.

This is obviously a serious problem in countries in which the Constitution itself is liable to be upset at any time, which is to say, in most countries at most times. As Tom Ginsburg et al report in a recent paper, the average lifespan of a national constitution is 17 years. Constitutions, it seems, are like restaurants: Most new ones fail.

Ah, you say, but not the U.S. Constitution, which is chugging along nicely in its third century. But there's a catch, you see: Ginsburg et al find that long-lived constitutions are typically flexible, either because they are easy to amend (which the U.S. Constitution is not) or because they are interpreted flexibly over time (which the U.S. Constitution has been). It seems that constitutions simply cannot play the settlement function that some theorists imagine they play: Either a constitution will be flexible, and thus leave many matters unsettled or subject to unsettling; or it will be inflexible, and thus die young, giving way to a whole new constitution and thereby unsettling the legal order that way.

Wednesday, February 24, 2010

The Mount Vernon Statement

By Mike Dorf

My latest FindLaw column explains how nothing in constitutional law is every really, finally settled. It's always open to being disrupted. Tomorrow I'll add some further illustrations. Today, I'll elaborate on an oblique reference in the column to a "recent small-government manifesto." Those who follow the link will find that it points to something called The Mount Vernon Statement ("MVS"). The MVS was unveiled last week by a small collection of somewhat prominent (albeit old) conservatives. It was meant to pay homage to the late William F. Buckley's Sharon Statement of fifty years earlier. Herewith a few observations about the MVS:

1) Like the original Buckley manifesto, the MVS is highly libertarian. The Constitution to which its authors commit themselves is not the current version, which includes an assortment of amendments moving the country in a more egalitarian direction (not the least of which are the Reconstruction Amendments, including the Fourteenth Amendment's equal protection clause), but the original document, with its express, if veiled, protection for slavery. And even then, the MountVernonites have erased the egalitarian ideals (however conflicted) of that era. Although the MVS repeatedly cites the Declaration of Independence as a source of guidance, it omits any hint of the most famous line: "All men are created equal."

2) The MVS presages or reflects a re-opening of the divide between economic libertarians and social conservatives. In a few places, it throws a sop to social conservatives. For example, it states that "A Constitutional conservatism . . . reminds economic conservatives that morality is essential to limited government" and "informs conservatism’s firm defense of family, neighborhood, community, and faith." Yet the language is much more strongly libertarian and more fundamentally, the MVS makes no serious effort to explain how modern social conservatism can be traced to the Founding. The closest it comes is in its invocation of natural law and the Divine origin of rights that it loosely links to the Declaration. But that language is at best prefatory and its author, Thomas Jefferson, was a Deist and a separationist whose views most social conservatives think were out of step with what they regard as the predominant Theism of the Founding Era (as nicely described in a recent NY Times Magazine article). Overall, the economic libertarian perspective dominates the social conservative perspective here.

3) The MVS is curiously meek on foreign affairs. Here is what Buckley's Sharon Statement said about national security in 1960:

THAT we will be free only so long as the national sovereignty of the United States is secure; that history shows periods of freedom are rare, and can exist only when free citizens concertedly defend their rights against all enemies…

THAT the forces of international Communism are, at present, the greatest single threat to these liberties;

THAT the United States should stress victory over, rather than coexistence with this menace . . . .

By contrast, the MVS contains only two references to foreign policy. It says that the signatories' vision "supports America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end." It's hard to think of anyone in the gigantic political space that includes both Dennis Kucinich and Dick Cheney who would disagree with that statement. The MVS also professes "that energetic but responsible government is the key to America’s safety and leadership role in the world." Here too, do any liberals disagree?

The essential emptiness of the MVS's professions regarding foreign policy bespeaks either internal division or exhaustion. I'm betting on the latter. While Republican politicians will continue to score some political points by portraying Democrats as soft on terror, given that Obama's foreign policy (including his military budget) exhibits far more continuity than discontinuity with that of Bush, and given that there is no remaining capacity for further military commitments, even if there were the will for them, the MVS's foreign-policy meekness is at bottom a nod to grim reality. Looking at the glass as 5% full rather than 95% empty, I'll celebrate even this partial return to reality-based thinking by the right.

Turning back to domestic policy, it is notable just how tired-sounding and unoriginal are the ideas in the MVS--and not because they are somehow timeless truths. Whatever recent resurgence of support the last few months have seen for politicians on the right cannot plausibly be explained by any sort of policy creativity. Rather, of late the right has simply been doing a better (if cynical) job of capitalizing on populist anger than has the left. Progressives are currently losing a PR battle, not a war of ideas.

Tuesday, February 23, 2010

Not So Fainthearted After All

Yesterday's SCOTUS per curiam opinion in Wilkins v. Gaddy, would not be noteworthy were it not for the remarkable separate opinion by Justice Thomas, joined by Justice Scalia. In 1992, in Hudson v. McMillian, SCOTUS held that abuse of a prisoner can constitute cruel and unusual punishment even if no serious physical injury results. In Wilkins, the Court reversed a 4th Circuit decision that essentially ignored Hudson. The 4th Circuit affirmed a district court decision dismissing a prison abuse lawsuit because, in the judge's view, the injuries suffered by the plaintiff were "de minimis."

In a moment, I'll quote the abuse allegation, but first let's focus on the Thomas/Scalia opinion. They agree with the rest of the Court that the 4th Circuit approach in Wilkins is inconsistent with Hudson, and thus should be reversed under existing precedent. However, Justice Thomas says (as he did in 1992) that Hudson itself was wrongly decided. According to Justice Thomas's reading of the historical record, the original understanding of the 8th Amendment applied only to "punishments" that were carried out as part of a prisoner's sentence. A guard inflicting unauthorized cruelty on a prisoner is not, in this view, "punishing" the prisoner, even if he is harming the prisoner.

Justice Thomas did not say in Hudson that the original understanding should prevail. Rather, he said then, and he reiterated yesterday, that in order to prevent the 8th Amendment from becoming "a National Code of Prison Regulation," 8th Amendment claims for abuse that is not part of the sentence should be limited to those that result in "serious injury." It's not entirely clear why even those claims should be allowed under the Thomas approach. Purporting to root the serious-injury requirement in an earlier ruling, Justice Thomas could be said to have relied on stare decisis--although if that's the reason, one wonders why Hudson itself is not now entitled to respect under stare decisis, and in any event, Justice Thomas frequently advocates abandoning precedent in the name of original understanding.

Perhaps the best explanation why Justice Thomas is willing to allow 8th Amendment claims for even the narrow category of unauthorized abuse that results in serious injury is that he is, at the end of the day, a "faint-hearted originalist." That's Justice Scalia's term. He says in a 1989 essay titled "Originalism: The Lesser Evil," that most originalists (presumably including himself) are "faint-hearted," i.e., they would, in extremis, discard the original understanding to avoid truly dreadful results. Interestingly, he gives "public flogging" as an example: Practiced in the 18th century, he says that even most originalists would likely find it violates the 8th Amendment today.

Accordingly, we might view the willingness of Justices Thomas and Scalia to go along with precedents establishing that the 8th Amendment bars unauthorized prisoner abuse by guards where serious injury results as a sign of their faint-heartedness, i.e., as a sign that each has some compassion for prisoners after all. But before you conclude that this makes Justices Thomas and Scalia all warm and fuzzy, take note of how UN-fainthearted they are. If they had their druthers, they would do away with Hudson and would thus deny that an 8th Amendment violation has occurred when "serious injury" has not occurred.

What, in particular, would they say does NOT violate the 8th Amendment? Here is the allegation of abuse from the plaintiff's complaint in yesterday's case, quoted by the majority: Gaddy, the defendant guard,

apparently angered by Wilkins’ request for a grievance form, “snatched [Wilkins] off the ground and slammed him onto the concrete floor.” Gaddy “then proceeded to punch, kick, knee and choke [Wilkins] until another officer had to physically remove him from [Wilkins].” Wilkins further alleged that, “[a]s a result of the excessive force used by [Gaddy], [he] sustained multiple physical injuries including a bruised heel, lower back pain, increased blood pressure, as well as migraine headaches and dizziness” and “psychological trauma and mental anguish including depression, panic attacks and nightmares of the assault.”

Because the district judge characterized all of this as "de minimis," it did not satisfy the "serious injury" requirement that Justices Thomas and Scalia would impose on 8th Amendment claims that do not challenge the formal sentence. I guess they're not so faint-hearted after all.

Sunday, February 21, 2010

As with Germs, So with Republicans: Sunlight Will Be the Best Disinfectant

By Robert Hockett

One of the more interesting features of Republican opposition to a variety of salutary proposals made by the Obama Administration and the Democratic Caucus in the Congress, I find, is that so many features of these proposals to which Republicans currently -- and flamboyantly -- object originate with ... well, Republicans themselves.   

A particularly interesting case in point here is that of the "individual mandate" feature of the health insurance reform measures passed in the House and Senate shortly before the winter break.  That is a feature about which Neil, I, and especially Mike here at DoL have written at length both here and elsewhere from a number of angles -- fiscal, financial, and constitutional alike.  What is interesting about the mandate from the angle of vision I am adopting in this post is the fact that it was originally proposed as an alternative by Republicans -- Republicans then opposing early versions of the Clinton health care reform initiative in the early 1990s, some of whom remain in the Congress to this day and now oppose the mandate.  Even more interesting, perhaps, is that the individual mandate has been supported as recently as this past autumn and several years ago, respectively, by such current Republican notables as Charles Grassley and Mitt Romney.  See, e.g., http://www.politicsdaily.com/2009/08/24/individual-mandate-flies-under-the-radar/5, and http://www.opinionjournal.com/editorial/feature.html?id=110008213 .  (Ironically, President Obama, for his part, opposed the individual mandate idea during the 2008 campaign, and appears to have embraced the idea in order to win more support for health insurance reform from Republican quarters and the insurance industry, as an offset for the additional costs that would be incurred by prohibiting preexisting condition exclusions.) 

Notwithstanding the Republican origins of, and recent prominant Republican support for, the individual mandate, however, it has become the latest putative basis upon which Republicans now predicate their charges of Bolshevism on the part of proponents of "Obamacare."  This curious change of tune -- as if "on a dime" -- naturally prompts an intriguing hypothesis:  Could it be that Republican opposition to Democratic proposals right now are not actually about the perceived substantive merits of the proposals at all, but are in fact about inflicting failure upon the Obama administration and the current Democratic Congress?  Certainly Republican Senator Jim DeMint's infamous "Waterloo" prognostication of this past summer -- http://www.youtube.com/watch?v=mHV4nDS501Y -- afforded reason enough to suspect something along these lines even before the latest Republican volte face on the individual mandate.  But another, more recent case strikes me as affording the best case yet for concluding that the Republican Party has decided to throw policy merits entirely to the winds and concern themselves solely with getting the Cossacks into Paris, if I may take up Senator DeMint's Napoleonic simile.

The case to which I refer has to do with a particularly salient public policy concern -- namely, the reform of our regime of financial regulation.  Many DoL readers will recall that, at the end of last month, President Obama announced his support for three new finance-regulatory measures recommended by Republican Paul Volcker, the former Federal Reserve Chairman now widely viewed, in the wake of Chairman Greenspan's diminished standing, as the last successful occupant of that hallowed office.  It will be helpful first briefly to recapitulate those three proposals and preempt possible confusions about them.  Then I will report on the most recent Republican reactions to them and to the other most widely reported proposal for finance regulatory reform -- the establishment of a new Consumer Financial Protection Agency.      

With respect to the first proposal, which would place limitations upon commercial banks' proprietary trading activities, there is a widespread misperception that the 1999 repeal of Glass-Steagall's imposed "wall of separation" between commerical and investment banks was meant to permit commercial banks with federally insured deposits of ordinary folks' money to speculate in the financial markets with that money in the manner that investment banks do. But this is not so. What changed in 1999 was simply that federally insured commercial banks could now affiliate with -- i.e., could be owned by the same parent company as -- investment banks, on the understanding that the commercial banks themselves would continue to operate and be regulated as before. But this distinction itself has been steadily eviscerated by bank and bank holding company practices in recent years, and so President Obama and Former Fed Chairman Volker are best seen as taking the 1999 legislation at its word rather than as aiming to repeal it.  That legislation -- Gramm Leach Bliley -- liberalized financial regulation, but did not end it.  The Volcker-Obama plan is accordingly best viewed as, if anything, insufficiently ambitious -- too "conservative" -- in character, rather than as aimed at going back to the "over-regulatory 1990s."  (I know.  I share your temptation to guffaw.)

With respect to the second proposal, which was that the law take account of more forms of liability than deposits alone in determining bank market share, this too should have been viewed as a welcome response on the part of the regulatory regime to changes in the banking market. When we liberalized interstate banking and branching in the mid-1990s, we recognized the danger of excessive market concentration that this posed -- a danger that threatened consumers with oligopoly and the financial system with moral hazard rooted in bank growth to sizes thought too big to allow to fail. We responded to that danger at the time by prohibiting any bank from acquiring more than a 10% market share in deposits -- which was huge already. What has changed since then is that banks take on more forms of liability -- that is, they borrow from more sources -- than those owed to depositors alone. And the 10% market share limits applied to deposits have not been extended to these deposit-substitutes. The consequence is growth up to "too big to fail" size behind the scenes, so to speak. Finance-regulatory innovation must keep up with financial innovation, and this is precisely what the President's proposal would do.  Please keep this one especially in mind when I turn to the current Republican reaction.

Finally, with respect to the third proposal of last month, that financial institutions be required to disclose all of their contingent liability exposures -- i.e., all of their financial derivative transactions -- just as they already are required to disclose all of their non-contingent liabilities, this too has been long, long overdue. Consumers and other participants in the financial economy, not to mention risk regulators, cannot rationally assess the value of prospective transactions with financial institutions -- including the reliability of investments in or through such institutions -- or the degrees or loci of systemic risk in the financial system if they know what such institutions already owe and are owed, but not what they might come to owe or be owed by virtue of contracual commitments. And the same reasons that prompt us to require disclosure of the first kind of information argue for requiring disclosure of the second kind.  While there might -- might -- have been some reason to let the derivatives markets develop undisturbed in the late 1990s as they were just beginning to burgeon, there was never any reason to equate "undisturbed" to "unmonitored."  And there is in any event no rationale what ever for permitting financial insitutions to keep hiding that form of information today --  now that contingent liabilities of this kind have come to dwarf certain liabilities in notional value.

All three of these proposals are aimed directly at features of the financial and regulatory environment publicly suggested by Democrats and Republicans alike to have played important roles in the financial earthquake of 2008 and the need at the time to afford massive "bailouts" in order to prevent full scale economic calamity.  And all three, again, originate with the universally respected Republican Chairman of the Federal Reserve Board during most of President Reagan's time in office, the man who broke the back of the stagflation of the 1970s -- Paul Volcker.  Recall a fourth proposal still on the cards -- the instituting of a new Consumer Financial Protection Agency charged with preventing abusive financial marketing practices associated with excessive subprime mortgage lending in the years leading up to 2008, long proposed by Harvard Law Professor Elizabeth Warren -- and you have in view a nice package of sensible finance-regulatory reforms that, at worst, fail to go far enough in reforming financial practice.  (As I have argued here before and elsewhere, I don't think we'll avoid future crises absent a serious Fed commitment to return to the avowedly countercyclical role that it played during the tenure of William McChesney Martin, but I won't bang that drum again in this post.)   

Now consider what Republican "strategists" are doing in response to the modest proposals of Warren, Volcker, and Obama nearly as quickly as they have been offered:  Earlier this month, Republican strategist Frank Luntz issued a 17-page memo titled "The Language of Financial Reform."  (More on it here: http://www.huffingtonpost.com/2010/02/01/frank-luntz-pens-memo-to_n_444332.html )  The language of the memo's title itself is telling:  For one thing, it replicates that of an earlier memo that Luntz supplied Repuclicans as the health insurance reform debate began in earnest:  That one was titled "The Language of Health Care."  (You'll find it here: http://www.pnhp.org/news/2009/may/frank_luntzs_the_l.php )  For another thing, it makes plain from the get-go that Republicans are to concern themselves, not with financial reform, or the merits of various competing proposals for fianancial reform (the Republicans thus far have not proposed any), but with the way in which proposals are couched. 
 
More specifically, Republicans are advised to "frame the final product as filled with bank bailouts, lobbyist loopholes, and additional layers of complicated government bureaucracy."  They also are encouraged to play up a policy line pursuant to which "the bad decisions and harmful policies by Washington bureaucrats that in many ways led to the economic crash must never be repeated."  The "bad decisions and harmful policies" are not specified, and most of us would presumably think the allusions made by such language to be to Bush era policies, but in Luntz's and other Republicans' world right now, "Bush" has become "Washington," and "Washington" is readily pinned, Pavlov-style, on Democrats now that they "control" Congress and the White House.  
 
If you're already finding this chilling, please wait, there's more:  In a particularly candid moment, Luntz goes so far as to say, "[p]ublic outrage about the bailout of banks and Wall Street is a simmering time bomb set to go off on Election Day ... Frankly, the single best way to kill any legislation is to link it to the Big Bank Bailout."  And that, thus far, is about all we are seeing from Republicans when it comes to repairing the system of financial regulation under which our recent woes developed, festered, and erupted.  The plan is simply to establish Pavlovian associations between reform proposals on the one hand, and the very harms against which those proposals are directed on the other.  The second of the proposals described above, after all, is targeted among other things at bank size.  And the first and third of the proposals are of course aimed precisely at putting an end to wrong-headed anti-regulatory policies embraced at the turn of the millenium just as real estate and associated financial markets were overheating. 
 
Which takes us back to our theme.  Surely it ought to be clear by now that there is little if any reason to suppose the Republican Party at present to be interested in the merits of any legislation proposed by the Obama Administration or the Democratic Caucus in Congress.  And there is every reason to suggest that the Republicans' sole interest in any such proposal now is how best to bring it to pass that a substantial number of Americans unthinkingly associate it with something unpleasant -- and something unpleasant that, in all likelihood, was actually brought to us by the Republicans themselves as recently as a bit over a year ago.
 
What is the remedy for this kind of thing?  Surely we need not tell the White House or the Democratic Caucus:  It is to expose it.  It is to expose it relentlessly -- to repeat and repeat the facts and the larger story that those facts embody, with the same, if not more, determination that the Republicans exhibit in relentlessly propagating their intentional falsehoods (yes, we know the briefer term for "intentional falsehoods").  There seems no reason, so far as I can tell, to do otherwise.  If anything, the White House and the Democratic caucus are under a duty to all of us to bring the digusting truth here into the full light of day, before today's Republican Party succeeds in doing what the Republican Party through 2008 nearly succeeded in doing -- bringing the country to complete financial and political ruin. 
 
One of our nation's most distinguished and, these days, lamentably underappreciated jurists -- a lawyer who was also a prophet of financial regulation whose advice, had it been taken, might have forestalled the financial frenzy of the 1920s -- bequeathed us a very nice slogan that seems to me to bear repeating here, not only in connection with finance, but also with the political process.  I'm referring of course to Louis D. Brandeis, who memorably observed in his classic tract, Other People's Money and How the Bankers Use It, that "sunlight is the best disinfectant."  I humbly suggest that President Obama and the Democrats in Congress begin seriously shining the light on the source of our present public policy debates' shared toxicity: that is the fact that there actually seems to be only one party to these debates, while the other party is engaged in nothing less than a concerted effort at mass-psychological manipulation in order that it might regain power and resume business as pre-2009 usual. 

Friday, February 19, 2010

Lobbying and Corruption

-- Posted by Neil H. Buchanan

Two weeks ago, The New York Times ran a news article by Eric Lichtblau under the headline: "Lobbying Imperils Overhaul of Student Loans." In the article, Lichtblau describes an Obama administration proposal (already passed by the House) to save federal money on subsidized student loans, and he explains how the lenders who currently enjoy the subsidies that the proposal would recapture are fighting back with a lobbying blitz. The article is very well-written and informative, a textbook example of reporting without editorializing.

Still, there is something vaguely creepy about the tale that Lichtblau tells. His story boils down to this: (1) There was a proposal to save money, (2) The affected industry began lobbying Congress, so (3) The proposal now might fail. Readers might wearily shrug their shoulders and think, "What else is new! Of course the lobbyists will win." That was certainly my first reaction. As I have thought more about this, however, the underlying logic has become more and more difficult to fathom. More on that in a moment.

But first, it is important to understand just how simple the underlying issue is. Normally, if a lender faces a higher risk of default on a loan, they will want either a higher interest rate from the borrower, some kind of collateral, or a guarantee or cash from a third party. Therefore, one could imagine lenders refusing to make affordable loans to many college students, given how iffy repayments are on these unsecured loans, and given that many students lack a backer with sufficient resources.

The problem is that the federal government solved the lenders' problem twice. The program that the Administration wants to end has the federal government paying lenders to make student loans, even though the loans are guaranteed by the federal government. The lenders thus face no losses from defaults, but the federal government pays them to make them more willing to put up with those (nonexistent) default losses. Sweet deal! Eliminating the subsidy would save an estimated $80 billion or so over 10 years, money that the Administration would put toward expanding the availability of student loans.

The industry, of course, has a standard set of bogus arguments to justify continuing its free ride. They run from the usual "government takeover" meme, to the call to "think of the jobs," to the humorous idea that students get "personal service" from private lenders. It is the usual story, with talented people being paid to spin a story that cannot credibly be spun.

The part of this story that still nags at me, however, is the straight line from lobbying to the bill being in danger of not passing in the Senate. I can certainly imagine that there are plenty of Republican Senators who would oppose this plan, for any number of reasons. What I cannot understand is how the lobbying is changing anyone's mind. Who could understand the situation in the first place enough to favor the plan, but then change their mind when a lobbyist from the affected parties tells them that they should oppose it?

Maybe a few senators simply had not thought deeply enough about the issue before now, but now that they have thought and prayed about it, they have come to the conclusion that the subsidy is a good idea and must be continued. Color me skeptical.

Another answer is the old "jobs in your district" argument. Like the military-industrial complex, the lending industry openly plans to make Senators believe that jobs will be lost at home. (Interestingly, but unsurprisingly, a former Clinton administration official is now the lead lobbyist for the lenders.) Maybe enough Senators will decide that they are not willing to risk the bad press that might ensue if some lenders' employees are laid off (even though the best bet is that those people would not be laid off at all but would, instead, be kept on to administer the expanded program envisioned by the President).

In any case, as Lichtblau's article points out, the lenders are not content to rely solely on baseless arguments and contrived town-hall-style meetings. They also give money in equal measure to politicians from both parties, to the tune of $2.1 million in 2009 alone. The largest lender, Sallie Mae, also spent more than $3 million on lobbying in each of the last two years.

Politicians insist, of course, that they cannot be bought. They simply receive money from people with whom they already agree (which is why the contributor wants them in office). If pressed, they will sometimes suggest that the contributions lead to "access," which apparently means that they decide whom to see based on who has given them money. This explanation is disturbing in its own right, of course, given that selling access to someone necessarily implies that someone else is being denied access. (If there were enough access for everyone, the price would be zero.)

How does any of this fit into the battle over the student loan subsidies? Again, we are not talking about the people who were already going to vote against the bill. What matters is the apparent possibility that some Senators might change their votes in the face of the lobbying blitz. Those Senators, if they exist, must either be willing to listen only to those people who can afford a lobbying blitz -- and then change their votes after listening to the lobbyists' silly arguments -- or are at least indirectly on the take.

I readily confess that my musings on this might seem naive. Perhaps they are. What bothers me is that being non-naive (but not so jaded as to imagine that politicians can be bought) requires us to accept the idea that "lobbying" can kill any bill, even one that clearly is (as Obama put it) a "no-brainer." Again, we are not supposed to believe that money directly buys Senators' votes, but the alternative explanations are more than a bit of a stretch. The strengths and weaknesses of the arguments are so clear that the mechanisms of influence become more apparent.

The point is not that this is a smoking gun -- proof of a quid pro quo, cash for votes. Rather, the point is that we just nod and accept the idea that lobbyists regularly kill bills, but we rarely consider the process by which they succeed. If this is not corruption, what is?

Thursday, February 18, 2010

Individualizing Victims of Delegated Abuse

Posted by Sherry Colb

In my column for this week, I discuss a woman (who goes by the pseudonym of "Amy") who was, as a child, a victim of child molestation.  The perpetrator, her uncle, filmed his abuse of her, and the results have been circulating among pedophiles for over a decade.  With an attorney's help, Amy has been seeking restitution from the people whom police have found  in possession of child pornography in which she appears.  Some courts have been quite receptive to her pleas, while others have not.  My column focuses on whether it is just to require people in possession of child pornography to pay compensation to the children or former-children who appear in that pornography.

In this post, I want to explore the relation between consumers of the products of abuse and the abuse itself.  I suspect that many pedophiles who purchase and watch child pornography do not consider themselves remotely as culpable as the people who abuse the children in the pornography (assuming they give much thought to culpability at all).  Several law professors, when asked about Amy's case, have concurred in this judgment and have suggested that it takes things a bit far to hold consumers personally responsible for victimizing the children molested to create the pornography.

As I discuss in greater depth in my column, it is somewhat odd to encounter this position (that consumers of child pornography are either innocent or unrelated to the sexual abuse of the children involved), given that possession of child pornography is a crime (and given the reasons that possession is a crime).  Nonetheless, the view that people are less culpable (or not culpable) when they delegate misconduct to someone else (through purchase and consumption) is quite common.

Most people, for example, view the infliction of unnecessary injury and death on animals to be unjust and culpable.  When they hear about what happens to animals on a farm or in a slaughterhouse (no matter how allegedly "humane" the farm or slaughterhouse), many people are outraged and horrified.  They find it disgusting that anyone could inflict such suffering on innocent creatures.  Yet they fail to see how their consumption of animal flesh and/or animal products is equally culpable.  They feel that someone else -- a slaughterhouse worker or a dairy farmer -- is the one who causes the screaming and bellowing, who cuts throats and ends the lives of babies, adolescent, and adult animals.  Once the consumers come into the picture, people imagine, the suffering and death of the creatures whose bodies and bodily secretions they eat and wear have already happened.

Consumers of child pornography (and their defenders) apparently believe the same thing.  Whoever sexually abused the child has perhaps done something wrong, but once the material exists,watching it is "after the fact" and cannot possibly be comparable to the production of the material.

People who wear the skin of killed animals and drink or eat the dairy and egg products that come from the slaughter of baby animals are often gentle and kind when they encounter a specific animal (even a calf or a chick).  If they see someone being cruel to an animal, moreover, some of these same people might well intervene and try to stop it.  This happens, in part, because people do not viscerally experience the very real connection between buying a dozen eggs and killing one-day-old baby chicks.  The individual animals who suffered and died have become invisible, in a way that they would not be if people could see them, alive, one-at-a-time.

The consumption of child pornography might seem distinct in that viewers actually do see the children being abused; that, in fact, is the entire point of the endeavor.  Yet, in an important sense, the children are also invisible to the perpetrator who watches child pornography.  They are sources of prurient pleasure, not living, breathing, and suffering innocents with likes, dislikes, joys, and fears.  They are simply instruments through which the viewer of child pornography becomes aroused rather than individuals with their own inherent value.

And the converse is true of animal consumption as well.  The animals whose flesh and bodily products people consume are not truly invisible either.  Milk containers typically have (highly deceptive) drawings of cows and calves grazing in the field, so people know that cows are forced to provide milk (and perhaps even know the horrors of how this is accomplished in the real world).  The meat section of a grocery store has corpses in it.  Dissociating the corpses from the live animals who they once were is no less an act of denial than it is in the case of a viewer of child pornography.  And as in the case of child pornography, the victim who is "consumed" has already been violated, but the consumption represents a clear expression of demand for more violation.

Most of us, of course, do not consume child pornography, while most of us do consume animal products.  What this means, for practical purposes, is that if you believe it is wrong to inflict unnecessary pain and death on animals (i.e., when the goal is to satisfy appetites than can be easily and more nutritiously satisfied without using animals), you are morally obligated not to consume animal products, just as you are morally obligated not to consume child pornography, if you believe that violating children is wrong.

Going vegan is not supererogatory (in the way that campaigning for tougher laws on child molestation might be).  It is simply refraining from harm, not participating in gratuitous violence against sentient beings, much like refraining from the purchase of child pornography.

Wednesday, February 17, 2010

Where to Count Prisoners

By Mike Dorf

With the decennial census now under way, a familiar practice has again (and rightly) come under fire: The census counts prisoners as residing wherever the prison in which they are incarcerated happens to be, rather than in the communities from which they originate. However, in nearly all states, prisoners aren't allowed to vote. As a result, the count is depressed for disproportionately poor and minority communities from which prisoners disproportionately come, while the disproportionately non-minority, disproportionately rural communities in which prisons are located get a population bonus. Here I'll try to clear up a little bit of the confusion in the public discussion of this phenomenon.

In 2006, Congress asked the Census Bureau to explore the feasibility of counting prisoners at their prior homes rather than in prison. The Census Bureau produced a document raising a host of objections. The biggest problem would be the need to meet with and interview individual prisoners but also, the Census Bureau would have no uniform way of verifying the home addresses or even of defining home address.

With due respect, that was a misleading answer because the census data serve multiple functions. At the federal constitutional level, they are used to decide how many seats each state gets in the House (and thus also how many Electors in the Electoral College). Congress has interpreted the "actual Enumeration" language of Article I, Section 2 to forbid statistical sampling with respect to this core constitutional function. However, the same statute empowers the Census Bureau to use sampling for other purposes. Accordingly, the practical difficulties of conducting a non-sampling enumeration of prisoners should present no obstacle to the Census Bureau's providing estimates of local populations once prisoners are allocated to their prior residences.

That's significant because the numbers used for inter-state allocations of House seats need not be used--or can be supplemented by other data--in making allocations of benefits and, the focus of the current discussion, representatives within states. Here the relevant limits are the Voting Rights Act and equal protection limits embodied by the one-person-one-vote apportionment rule. To my knowledge (and I admit that I haven't researched this piece thoroughly), neither Congress nor the Supreme Court has spoken to the question of whether sampling-based data can be (or must be) used for these other voting-related purposes.

If I'm right about that, then a state could choose to allocate prisoners to their homes for purposes of allocating representatives among districts--so long as it had a reasonable basis for doing so, and sampled data would be such a basis. (According to a 2001 Harvard Law Review Student Note, a few states forbid the use of sampled data for internal purposes.) States that wanted to do so could probably generate the necessary data on their own, but they would do a lot better if the Census Bureau helped them.

Tuesday, February 16, 2010

AG Holder and the Inevitability of Politicization

Consider the juxtaposition of two recent profiles of AG Eric Holder. Writing in the current New Yorker, Jane Mayer describes how Holder "has tried to depoliticize" decisions about such matters as how and where to try terrorism suspects. Although she notes that Holder is not politically naive, she does portray a struggle between Holder's view and the political shop in the White House (read Rahm Emanuel). Meanwhile, an article in yesterday's NY Times may suggest the exact opposite by its title--"After 9/11 Trial Plan, Holder Hones Political Ear." However, the substance of the Times article conveys much the same picture as Mayer's portrait in The New Yorker: despite his extensive political experience, Holder is temperamentally disdainful of politics. In the wake of the Obama Administration decision not to try KSM in NYC, Holder is trying to be more pro-active politically, but it hardly comes naturally.

Here I'll express skepticism about the possibility of maintaining an apolitical approach once one has been criticized on political grounds. Holder (backed by Obama
for now but perhaps not for long) appears genuinely annoyed and surprised by the fact that various Republicans are criticizing his preference for civilian trials of terrorist suspects when many of those very same Republicans supported the Bush Administration's similar actions. Notwithstanding the attention to Gitmo and military tribunals, under Bush many more people were tried and convicted in civilian court than before military tribunals, and most of the former were read their Miranda rights. This comparison (made in the Mayer article) is not entirely fair, of course, because most of the Gitmo detainees didn't get any trial at all. Still, as Mayer notes, the civilian courts have tended to give harsher penalties for terrorism convictions than the military commissions have. And so Holder concludes that his critics are simply grandstanding when they accuse him and Obama of "not realizing we're at war."

Holder is right about that, obviously. But once the political point has been made, it's virtually impossible for Holder to defend what he's doing as apolitical. Sure, Rudy Giuliani et al are saying things now that are inconsistent with what they said during the Bush years, but once the right advances the war-means-use-military-commissions-rather-than-civilian-courts-and-waterboarding-rather-than-Miranda-warnings meme, Holder's the-choice-between-security-and-our-values-is-a-false-choice response will inevitably be viewed as the other side of a political argument.

How do I know? Because this pattern was set in the earliest days of the Republic. Even before the Washington Administration came to an end, the people who came to be known as Federalists--especially John Adams and Alexander Hamilton--viewed the emerging Democratic-Republican Party of Thomas Jefferson as inappropriately partisan. The Federalists thought that Jefferson was betraying the constitutional ideal, expressed by James Madison in his Federalist days, under which "faction" was a vice, not a virtue. It must have been especially infuriating for the Federalists to see Madison among the leaders of the D-R's.

The Federalist response was to try to portray the D-R's as a faction that was fomenting division. But it didn't work, or rather, if it did, the Federalists were perceived as just as much of a faction. Was that fair? It's very hard to answer that question without some reference to the underlying merits of the issues that divided Federalists and D-R's. With what we now regard as extreme states' rights views (as per the Virginia and Kentucky Resolutions), not to mention disproportionate support among slaveowners and their allies, it's hard to see the D-R program in an especially sympathetic light. But neither do the Federalists look so wonderful in retrospect. They were shockingly (and openly) elitist by modern standards, and no friends of civil liberties (as per the Alien and Sedition Acts). Hence, seen from the distance over two centuries, it's easy to understand the political fight between Adams and Jefferson as essentially a bare-knuckles but sincere disagreement over the best direction for the country (as each eventually came to think in retirement).

So, can we expect that two hundred years from now, historians and legal scholars will view Dick Cheney and Eric Holder as protagonists in a tough-but-honest debate over how best to protect national security? We'll have to wait and see.

Monday, February 15, 2010

New Blog - And a Thought on the Failure of the Totalitarian Left

By Mike Dorf

A new blog, Religiousleftlaw.com, has just been launched by three of my Cornell colleagues--Steve Shiffrin, Eduardo Penalver, and DoL contributor Bob Hockett--along with sometime DoL commenter Patrick O'Donnell and prominent con law scholar Michael Perry. Although I have previously expressed skepticism about the ability of religious language to win over the great middle of Americans who profess some degree of faith, I could be wrong about that, and in any event, the blog promises much of interest to progressives regardless of their religious views and to everyone interested in ideas. Kudos!

Now a short comment on a post on religiousleftlaw.com by O'Donnell entitled Marxist & Buddhist?. O'Donnell provides an extended quotation from a 1993 speech by the Dalai Lama in which he explains his goal of reconciling Buddhism and Marxism. There is much in what the Dalai Lama says here with which I agree--and that shows him to be a very sophisticated thinker--but one point which, I think, substantially misses the mark.

The Dalai Lama makes the rather familiar argument that the nominally Communist regimes of the 20th Century--singling out the USSR, China, and Vietnam--were not "really" Marxist but essentially nationalist. Their totalitarian excesses, he goes on to say, were a product of having "placed too much emphasis on the need to destroy the ruling class, on class struggle, and this cause[d] them to encourage hatred and to neglect compassion." Although the Dalai Lama does not invoke the highly egalitarian social democracies of northern Europe, the contrast is at least tacit: Scandinavian social democrats did not become totalitarian because they did not demonize the wealthy.

Stated that way, there is at least a surface plausibility to the Dalai Lama's analysis. Certainly the worst excesses of 20th Century Communist regimes--e.g., Pol Pot's murderous attacks on anyone with an education, Stalin's attacks on kulaks, the Cultural Revolution--can be fairly attributed to something like hatred of the well-to-do. But that simply raises, rather than answers, the question of why these impulses arose and were vented in the regimes in which they were. To my mind, there are two possibilities.

The answer that might appeal to an Orthodox Marxian would note that the most totalitarian nominally communist regimes were precisely those that, per Marx, were least prepared for Marxism--namely, peasant societies rather than industrialized bourgeois societies. In this view, 20th Century Marxism failed because it arose in the wrong places.

An alternative view would simply note that the relative success of social democracies--and certainly their gentleness relative to Communist regimes--was a product of the fact that they were/are democracies. This view (which I myself take) is quite difficult to swallow for a Marxian, because democracy (or what Marx would have called bourgeois democracy) is itself supposed to be a mere unstable phase en route to the dictatorship of the proletariat.

Perhaps President Obama can ask the Dalai Lama whether he still thinks well of Marxism in theory, when they meet on Thursday!

Friday, February 12, 2010

Fiscal Orthodoxy is for Big Fat Idiots, and Other Observations.

-- Posted by Neil H. Buchanan

In my FindLaw column this week (published here yesterday), I return to two of my favorite topics: Social Security, and intergenerational obligations. Many readers of this blog will recall that I have been rather obsessed with the question of justice between generations for the last several years. (See, e.g., here, here, and here.) In fact, my sabbatical is largely devoted to expanding my work on generational justice beyond the fiscal policy questions that motivated my interest in the subject in the first place.

Until now, I have been surprisingly successful in avoiding bringing this part of my academic life into my FindLaw columns; but in this case, I was provoked: David Brooks wrote an especially uninformed and misleading column last week repeating the "greedy seniors are cheating the young" mantra that sparked my earlier work in this area.

The bulk of my FindLaw column is devoted to summarizing the major analytical finding in the article that I published in the GW Law Review's symposium issue last Fall. (That volume also included articles by DoL stalwarts Mike Dorf, Sherry Colb, Bob Hockett, Jamie Colburn, and Ori Herstein.) Specifically, relying on the (generally pessimistic) forecasts from the Social Security Trustees, the economic fortunes of future generations -- even in the face of deficits in the Medicare and Social Security programs -- are astoundingly promising. In terms of the "stuff" that GDP measures, Americans in 2084 are projected to be 2-4.5 times richer on average than Americans in 2009. That's 2-4.5 times, not 2-4.5 percent!! I then point out that this gives us the opportunity to be truly benevolent to future generations by giving them a better environment in which to live. Happily, the natural environment can be improved while still leaving future generations significantly better off in material terms than we are.

Early in the column, I point out that this "save our grandchildren from these awful entitlement-fueled deficits" meme is entirely, and sadly, bipartisan. Not just Blue Dog Democrats, but even supposed liberals like Sen. Al Franken (D., Minn.) have made these arguments quite loudly. I specifically cite Franken's hilarious book (the title of which is especially funny in its full form), Rush Limbaugh is a Big Fat Idiot and Other Observations, which includes a bizarrely out of place chapter in which he laments the fiscal irresponsibility of his generation toward his son's generation. His message is numbingly familiar to anyone who has even a passing acquaintance with this debate: Children can't vote, so we Baby Boomers have shamelessly stolen the birthright of future generations by lavishing out-of-control entitlement spending on ourselves.

One interesting question is why someone like Franken would believe this reactionary nonsense -- nonsense that fed Bush's nearly-successful push to privatize Social Security and that still feeds the efforts to strangle Social Security and Medicare. A couple of possible explanations:

(1) He no longer believes this. The book was published in 1996, and Franken's views might have changed in the interim. I have not been following his short Senate career, so I can only say that I have not heard him say anything to repudiate his former views. Of course, he has not been pulling a Lieberman and siding with the Republicans, either.

(2) Franken is not a liberal but rather a partisan Democrat. He is certainly at his best when ridiculing Republicans, and it is impossible to imagine a more committed party man. That does not make him a liberal. Indeed, he has long identified himself as a "DLC Democrat," referring to the pseudo-centrist Democratic Leadership Council that was formed in the 1980's to move the party to the right (producing, among others, Bill Clinton). These are the people who, for example, pushed Clinton to adopt a goal of annual budget balance in response to the Gingrich revolution.

Whether or not Al Franken in particular still holds these orthodox views on fiscal policy and entitlement spending, however, it is clear that many current Democrats do. One such Democrat is Barack Obama, who is making noises about "fixing" Social Security, even though there is simply no need to spend the political capital today to address a problem that might never come into being at all and that can certainly be handled responsibly at a later date.

A few weeks ago, I accused the Democrats of panicking and pandering about budget deficits. (Link here.) While it is true that there would be political peril if Democrats were to come out strongly in favor of deficit spending, it is also true that they are getting hammered about deficits anyway, even though it is manifestly true that deficits rose faster (and for worse reasons, which is really the point) under Republican rule. Moreover, it is not necessary for Democrats to say, "We were wrong, and we now agree with Neil Buchanan that budget deficits are not always horrible and can in fact be good for the economy." They can simply do everything that they can to talk about other issues that resonate with voters -- and to advocate policies that would actually make people better off (unlike their deficit-reduction plans).

What makes Social Security and Medicare different, however, is that the public does not really want either program to be changed. Bush's privatization plan was defeated, even in the shadow of the faux-mandate from Bush's re-election and with Republican majorities in both houses of Congress. The successful opposition to Obama's health care proposals, moreover, was fueled in part by Republicans' scare tactics that portrayed attempts to control cost increases in the Medicare program as "Medicare cuts." And who can forget the famous "keep the government out of Medicare" hilarity from some of Obama's fiercest critics at town hall meetings?

In short, while I can at least see (but ultimately disagree with) the arguments of those who refuse to run the political risk of seeming to be "soft on deficits," there is not even an expedient political reason to adopt the fiscal orthodoxy regarding entitlement spending. There is no excuse for giving ground (in particular on Social Security), especially when even the most pessimistic forecasts show a materially richer future for generations to come.

Thursday, February 11, 2010

Explaining Justice Thomas's Reticence

By Mike Dorf (Updated with addendum at the end)

In my latest FindLaw column, I use the occasion of a recent University of Florida Law School speech by Justice Clarence Thomas as an occasion for talking about the "noble lie" of formalism in the law. Here I want to raise a largely unrelated issue: Why does Justice Thomas almost never ask questions from the bench?

During the Q&A session, he gave what I thought at first was a joking answer in response to a question of what a lawyer can say to convince him that the lawyer's client should win the case. Justice Thomas said that it would help "if my colleagues would let me talk." I took the line to be a joke because, of course, his colleagues do "let" him talk; he simply chooses not to talk in the vast majority of cases. The usual question is why not.

Based on my admittedly unscientific methods, I think that by far the most common hypothesis among people at least loosely familiar with the Court's work is that Justice Thomas doesn't ask questions because he doesn't want to embarrass himself as not up to the job. A close second is that he's nervous talking in public. Yet the evidence of the University of Florida speech pretty clearly rules both of these hypotheses out. Regardless of how well prepared he was for the job when the first President Bush nominated him in 1991, nearly two decades on the bench have obviously brought Justice Thomas up to speed. That's evident in his opinions but also in the speech itself, in which he displayed a level of comfort with a wide range of doctrines and issues. Surely he would be able to ask probing questions of lawyers in most cases.

So, is it possible that he doesn't have any questions? That seems unlikely too. Even acknowledging that, as the most conservative member of the Court,Justice Thomas finds fewer cases difficult than many of his colleagues do, at least half of the cases the Court decides do not have a clear ideological valence and raise hard legal questions. One would expect questions from Justice Thomas in these cases from time to time, if for no other reason than to relieve boredom.

Thus, although I'm not fully satisfied with this explanation, I fall back on the possibility that Justice Thomas wasn't joking, or at least wasn't entirely joking: Perhaps he really feels like his colleagues won't let him get a word in edgewise. That's not quite as outlandish as it may sound, given the unstructured nature of oral argument questioning, in which there is no queue. I consider myself anything but shy; yet I quite dislike going on the sort of television or radio program in which there is no moderator telling me when it's my turn but I must instead jump in and cut someone else off. Call it politeness, perhaps, or something else, but I think it's worth wondering whether a somewhat different format--in which the justices took turns asking questions, say--might produce a much more loquacious Justice Thomas.

Update: I received an email from Prof Lance McMillan of John Marshall Law School, who reminded me that on prior occasions (including in his book and in a speech last fall) Justice Thomas has said that he thinks judges should do more listening and less questioning, or "debating" with the lawyers. Justice Thomas contrasted oral arguments before the Supreme Court with the oral arguments he had as a lawyer for Missouri early in his career, in which the bench allowed the lawyers more time to talk. For Justice Thomas, this is part of a broader theme of civility.

I must say that I find this explanation not fully satisfactory. Justice Powell was also a Southern gentleman but he asked his share of questions at oral argument. Now perhaps the difference is that Powell mostly served in an era of less questioning, and less aggressive questioning (i.e., the pre-Scalia era) and so Justice Thomas feels that given the current level and nature of questioning, there's simply no room to add his questions. I think that could explain a certain degree of reticence but to my mind it doesn't explain complete silence for case after case.

Wednesday, February 10, 2010

Relentless Bipartisanship

By Mike Dorf

Yesterday the President committed himself to "a sense of purpose that transcends petty politics.” Who could be against that? To be for petty politics one would have to be, well, petty.

I'm not against compromise. I also agree with President Obama's stated concern that compromise doesn't mean that he simply caves into whatever the Republicans want. As he put it, "I'm willing to move off some of the preferences of my party in order to meet them halfway, but there's got to be some give from their side as well." To be sure, in my view, much of what the Dems are proposing is already a compromise of preferences of the core of the Democratic Party--e.g., the unwillingness to propose single payer on health care. But even putting that criticism aside, I wonder whether the President isn't making a fundamental miscalculation here in assuming that the Republicans actually care about their own policy preferences rather than simply obstructing.

Given the current dynamic, Republican obstructionism is win-win: It prevents the Democrats from accomplishing anything but because only a quarter of the public realize that Senate Dems can't do anything without 60 votes, Dems will get blamed for Congressional failure, leading to Republican electoral victories. Accordingly, Republican insistence on getting everything they want is not designed to get everything they want in the form of legislation but to win seats in Congress.

I have a hard time believing that the White House doesn't understand this logic, which leads me to one of two possibilities: 1) Obama is so temperamentally inclined towards compromise and bipartisanship and compromise that he can't help himself; or 2) The offer of compromise is designed simply to smoke out and expose the Republicans as obstructionist.

Of course, even if 2) is correct, the tactic could fail. Exposing obstructionism only works if the public are paying sufficient attention, and the 75% of Americans who don't know the filibuster rule are probably unlikely to learn its finer points as a result of Obama's arguments, no matter how effective. Compounding the difficulty is the apparent unwillingness of the Democratic Senate leadership to hold the Republicans' feet to the fire, and force them to vote against cloture repeatedly, a frustration explained by Paul in the post preceding this one (and dissected by readers and myself in the comments).

Tuesday, February 09, 2010

Filibuster Frustration

By Paul Scott

Yesterday on NPR I heard a report that Nebraska Democrat Senator Ben Nelson will join with Republicans to oppose the nomination of Craig Becker to serve on the National Labor Relations Board. Purportedly this means that it is likely that "Democrats cannot find the 60 votes needed to overcome a GOP filibuster of the nominee."

I honestly don't know a thing about Craig Becker and why he should or should not be appointed to the NRLB. But hearing this filibuster talk yet again focused for me how pathetically weak are the Democrats.

My question for the Democrats is a simple one. Why are you conceding defeat on this - and more importantly on Health Care - without actually forcing a filibuster? It is not as if the Republicans can just say "the Democrats don't have sixty votes, so they lose." Actually carrying out a filibuster is a painful process that, among other things, essentially involves living in the Senate Building. So make them do it.

Prison for Whistleblowers

By Mike Dorf

Last week, in a column and accompanying blog post, Sherry highlighted a peculiar Kansas law/interpretation of law, under which force in self-defense is legal but the threat of force is not.  File this post under "anything Kansas can do, Texas can do weirder."

Yesterday's NY Times carried the story of a nurse who is being prosecuted for reporting on a doctor with whom she worked who was, she said, operating unsafely and unethically.  The weird part: Even though she appears to be legally protected against firing, suspension and "other adverse personnel action" by a Texas whistleblower protection law, nurse Anne Mitchell is now facing a criminal trial for "misuse of official information" for reporting the doctor's missteps to the medical board.

The Times story presents the case as more of a contradiction than it necessarily is.  The whistleblower law only protects reports in good faith, and the prosecution in the criminal case, it appears, will have to prove that Nurse Mitchell acted with the sort of malice that could not be the product of good faith.  Even for a bad faith report, criminal prosecution seems rather harsh--a kind of criminal defamation action--but it's not inconsistent with the Texas whistleblower protection law, as suggested by the Times story.  Truthful whistleblowers are protected against retaliation and, tacitly at least, protected against criminal prosecution as well.

Suppose the law were otherwise, however.  Would it ever make sense to protect whistleblowers against job-based retaliation while permitting criminal prosecution?  Sure.  We might imagine that the law would give whistleblowers an incentive to blow the whistle, even while permitting prosecution for illegal conduct that produced the underlying information.  For example, a person who broke into his boss's home where he discovered evidence that the boss was taking bribes or submitting false expense reports would be protected against firing or other job-related retaliation for the disclosure of the boss's wrongdoing but would not be shielded against prosecution for the break-in.

In practice, however, the possibility of criminal prosecution--even if for conduct revealed by the whistleblowing though not for the whistleblowing itself--will have a very substantial chilling effect on whistleblowing.  So even if criminal prosecution for related conduct is theoretically consistent with protection against retaliation for whistleblowing, few people who fear prosecution for underlying conduct that led to, and will be revealed by, their whistleblowing, will be sufficiently protected by a whistleblower protection law to actually blow the whistle.

Monday, February 08, 2010

Change in Blog Scheduling

-- Posted by Neil H. Buchanan

Because of FindLaw's publishing schedule, there will be a change in the weekly schedule on Dorf on Law. On Thursdays, Mike Dorf and Sherry Colb will (on alternate weeks) discuss their newest FindLaw pieces. I will permanently move to Fridays, even on the weeks when I have not written a FindLaw column. Posts on Mondays through Wednesdays (and occasionally on weekends) will continue to be provided by Mike, and every now and then by other DoL bloggers.

I'll be back this Friday with further discussion of the deficit brouhaha in Washington. Thank you for reading Dorf on Law.

3-D Fails Another Test

-- Posted by Neil H. Buchanan

In two earlier Dorf on Law posts -- "Tech for Tech's Sake," a bit more than two years ago, and "The Third Dimension," last Spring -- I commented on the use of three-dimensional technology in modern movies. (In the original post, I drew an analogy between 3-D movies and a recent trend in the academic legal literature. I have since dropped any pretense that this is anything but a discussion of movies by an amateur film buff.)

Referencing 3-D versions of "Beowulf," "A Nightmare Before Christmas" (which I had also seen in 2-D years before), and "Monsters vs. Aliens," I expressed surprise that a fringe technology that had been around since the 1950's had suddenly become the new fad in Hollywood. On the merits, I concluded that 3-D technology not only was not a revolutionary breakthrough but was possibly even a distraction that diminished the movie-going experience.

For some reason, Hollywood has ignored my opinion, and the rush to release more and more movies in 3-D has only intensified over the last year. The buzz among techies is that 3-D television is not far away (making my recent purchase of a 50" plasma TV look quaint). As a lover of movies and TV, I continue to hope that all of this energy will result in something great, something that justifies all the time and money spent on chasing this new technology. This is, therefore, yet another case where I hope to be proved wrong. (My current view of the Obama administration is another.)

I should state clearly that 3-D technology does continue to improve on a technical level. The images really do look three-dimensional and natural most of the time, rather than weirdly floating in odd juxtaposition to one another (as in "Beowulf"). Even so, the audience still must wear those annoying glasses, which is the next technological hurdle.

It is also notable that there is no longer a price premium for 3-D films, removing one of the possible explanations for Hollywood's obsession with pushing such movies. At this point, it has apparently become necessary to compete with other studios by releasing 3-D movies. A big part of this, of course, is generational. I am no longer in the key movie demographic (by any stretch of the imagination), and children are now growing up taking 3-D technology for granted. There is probably no going back.

Inevitability does not, however, imply superiority. Whereas previous technological breakthroughs -- moving cameras, sound, color, "Star Wars"-style special effects -- were truly and obviously breakthroughs that changed what movies can do, it is my strong impression that 3-D still does nothing to improve (or even change in a meaningful way) the viewer's engagement with a movie.

As always, my opinion is subject to revision based on new evidence. I was, therefore, especially intrigued by the possibilities presented by "Avatar" as an example of a movie that would deliver on the promise of 3-D technology. Being a skeptic of 3-D, I first saw the movie in 2-D shortly after its release (and thus before it had become a mega-hit). I decided that this would be a good opportunity to compare and contrast technologies, so I recently went to see the movie in 3-D. Much to my surprise, I found even with this movie that the 3-D version was no more interesting or entertaining than the 2-D version. The 3-D version was not worse (which was the case for "A Nightmare Before Christmas"), but it was no better. I should emphasize that I really liked the movie in both versions. I am not, therefore, saying that it is a bad movie. It is just not any better in 3-D.

Most readers will have seen "Avatar" by now, I suspect. Although it is not as good as "Blade Runner," the two movies are comparable in having extremely pedestrian plots combined with wildly imaginative fictional settings. "Blade Runner" was based on a very old sci-fi concept about the nature of consciousness and humanity, with a plot twist that one could see coming a mile away. "Avatar" was (and I mean this descriptively) a simple "noble savages vs. white exploiters" story. It is "Dances With Wolves on Another Planet," or perhaps "Dances With Blue Cat People." Given how good "Dances With Wolves" was, however, that is not an insult. It is merely to say that the genius of the film is not in telling a unique story but in presenting a revolutionary visual experience.

Which makes this, I thought, a perfect test case for 3-D technology. In a world with floating mountains, bright purple birds, and glowing plants, 3-D would have its best chance to prove its worth. Surprisingly, nothing in the 3-D version was any more thrilling or more vividly imagined than in the 2-D version. The filmmakers deserve credit for not throwing things at the audience just to make them flinch, which shows admirable restraint (and a lack of desperation). Nevertheless, even the scenes with characters flying on "horseback" were no better in 3-D than in 2-D. (There were great in either version.)

Perhaps, however, this is an unfair test of 3-D. A movie that is so visually riveting in 2-D technology might simply not be open to improvement. If so, however, we have a problem. "Beowulf" was a mediocre-to-bad movie, and 3-D could not save it. "Monsters vs. Aliens" was a pretty good movie, but 3-D did not improve it. "A Nightmare Before Christmas" was an excellent movie," and 3-D made it less great. And now "Avatar" is a visually stunning movie that 3-D could do nothing to improve. Where is the opening for 3-D to do something positive for movies?

As I mentioned above, none of this will slow the rush toward adopting 3-D technology for more and more films. Will it become the case that every movie will be released only in 3-D? Will brilliant films like "A Single Man" and "A Serious Man" be produced in 3-D, "just because"? We do see movies that forsake the use of some modern technologies (most obviously "Star Wars"-like special effects, but also artistic decisions to film entirely or partially in black-and-white), so it is possible that filmmakers will continue to produce films as different (and great) as "Up in the Air" and "Drag Me to Hell" without resorting to the new technology.

One of the best films of 2009, "Inglourious Basterds," obviously could not have been improved by 3-D technology. Even so, its director, Quentin Tarantino, is a genius at mixing visual styles within one film. (See especially the "Kill Bill" movies, which wove together not only color and black-and-white filming but even anime.) Maybe Tarantino will figure out a way to make 3-D both interesting and essential. I remain skeptical but ever hopeful.

Friday, February 05, 2010

Fired or Laid Off?

 By Mike Dorf

During the last economic contraction--after the bursting of the dot-com bubble at the turn of the century--a number of prominent law firms appeared to be using the following stratagem: Instead of laying off associates, they were letting people go for ostensibly poor performance.  To the outside world this looked better than layoffs because it did not communicate that business had slowed down, but to the young lawyers who were let go, it was cruel.  On top of the loss of a job, they were saddled with the stigma of having been fired for performing badly, making it that much harder to get a new job.  Strictly speaking, the dismissed lawyers perhaps could have sued the firms for defamation if and when they told prospective employers that the former lawyers had performed badly, but suing a former employer is almost never in the interest of someone trying to find a new employer.  And so the young lawyers simply had to take the hit.

In the current economic downturn, most law firms had to let go of so many lawyers that they simply could not get away with the gambit just described.  If a 350-lawyer firm dismisses 15 lawyers in a year, it can plausibly claim to be cutting poor performers.  Not so if it sacks 50.

Nonetheless, I have what I regard as pretty strong anecdotal evidence (from outside Cornell) that the practice at issue has migrated to tenure decisions in university departments in the arts and sciences around the country.  Here's a typical example: A large history department that tenured 3 of 4 tenure-track internal candidates in 2005 tenured 1 of 4 such candidates in 2009.  Because the total number of people at issue in any given year is small, the department can plausibly claim that the class of 2009 simply happened to be weak, but I've seen or heard of this happening in enough places that it is very hard not to understand these decisions as being strongly influenced by resource constraints.

The impact on the people denied tenure closely parallels the impact on the dismissed lawyers.  Being denied tenure "on the merits" makes it especially difficult to find a tenured or tenure-track position at a remotely comparable institution.  Nor are dismissed academics very likely to sue for defamation, both because of the harmful reputational effects and because it's very difficult to prove that a tenure denial was illicit.

Does this mean that nothing can be done?  Perhaps not.  At the very least, institutions--whether law firms, universities, or other employers--that disguise layoffs as performance-based firings can and should be exposed, and thus shamed into taking the reputational hit themselves.  Some enterprising do-gooder could start a website--"laidoffnotfired.org" is an available domain name--dedicated to collecting stories.

Former workers of the world unite.  You have nothing to lose anymore anyway!

Thursday, February 04, 2010

Threats Versus Physical Violence

By Sherry Colb

In my column for this week, I examine a Kansas Supreme Court decision holding that under Kansas law, permissible self-defense includes only actual violence, not the threat of violence.  This means, in the particular case, that a defendant who threatened to hurt his alleged assailant as a means of self-protection may be prosecuted without resort to a self-defense instruction for the jury.  If the defendant commits no actual violence, in other words, he could not have acted in self-defense.  The column discusses the perversity of this ruling and notes that it effectively illustrates the pitfalls of unthinking "plain meaning" interpretation of statutes.

Here, I want to focus on the difference between violent threats and violent actions, because there are some potentially noteworthy distinctions.  Along one dimension, of course, threats are less harmful than actual violence.  Having an assailant say "I will shoot you if you don't hand over your money" is, by most accounts, less harmful than having an assailant shoot you and then take the money (or, for that matter, shoot you and leave the money behind).

Threats can, however, sometimes accomplish more than physical violence can, and when the "accomplishment" is destructive rather than benign, it might be fair to characterize the threat as "worse" at some level than the violence.  For a simple example, consider how terrorism works.  Terrorism typically involves actual physical violence -- whether that means killing or wounding its victims.  The underlying purpose (or a primary purpose) of terrorism, however, is communicative, expressive, and manipulative, not unlike like the point of a threat.

Take a paradigmatic example of self-defense.  Assume that an intruder has just broken into your home and is holding a knife.  You pull out a gun and point it at the intruder.  Assume that you then threaten to shoot the intruder if he does not vacate the premises.  Your objective is probably not to kill the intruder (otherwise, you would just shoot him).  Instead, you hope to persuade him to believe that he is better off leaving your home than staying and doing whatever it was he originally planned to do.  Your goal in threatening him, in other words, is to manipulate the intruder's conduct.  In your case, of course, your goal is legitimate, because the intruder should leave your home and should never have entered in the first place.

Now consider an act of terrorism.  Assume that the terrorist kidnaps one person from a building in a big U.S. city and then executes the person on video, which he then circulates throughout the world.  The terrorist may well have chosen the individual at random and have no particular interest in having that person die.  The goal of the act has almost nothing to do with the particular individual selected as a victim and everything to do with the audience.  The audience is everyone in the U.S. (and arguably beyond), and the goal is make the audience feel insecure and act in the way that insecure people act (which could include, among other things, authorizing the government to carry out disproportionately violent attacks on loosely related parts of the world).  The message of the terrorism is "You are not safe.  You need to do something to protect yourself from hidden enemies."

Except in unusual circumstances, a terrorist is not able to kill large numbers of people at the same time.  By killing only one, however, or a small number, he manages to do much more than destroy the lives of his victims (who are, after all, a mere "means" to the perpetrator's ends); he accomplishes the goal of making large numbers of people feel threatened and alter their behavior accordingly.  Indeed, with a credible threat, a terrorist could perhaps alter behavior in this way without actually killing or injuring anyone.

Does this make threats worse than actual violence?  Only in the sense that if the alteration in behavior accomplished by the threat is large and destructive enough, it may result ultimately in more violence and suffering than any that the lone terrorist might have inflicted directly.  Seen this way, threats can be more powerful than physical violence and must therefore be considered -- for good and ill -- in that light.

Wednesday, February 03, 2010

How Public Opinion Influences Judicial Decision Making

By Mike Dorf

As I noted last week, I recently attended a conference on The Judiciary and the Popular Will.  In my earlier post on the conference, I previewed my paper.  Here I'll say a little bit about some of the other papers.

The presenters included a fair number of political scientists and poli-sci-oriented law profs.  Both groups were interested in measuring the size of the effect of public opinion on Supreme Court decision making and the mechanism by which it is transmitted.  Supporting data will come eventually in the published papers, but a preliminary observation is in order: I was surprised by the degree to which the number crunchers found evidence of a direct effect of public opinion on Supreme Court decisions.  I had taken for granted that the chief mechanism by which public opinion influences the Court is judicial appointments: Presidents select and Senates confirm Justices who, broadly speaking, share the public's values.  Nothing I learned at the conference casts doubt on this phenomenon, but substantial evidence was also presented showing that individual Justices are responsive to public opinion over their careers.

Without posting the data and the regressions run, it's hard to make the point precisely.  It's also hard to distinguish between two phenomena: A) Justice X changes her mind on some question because she observes that public attitudes have changed; versus B) Justice Y, as a participant in the same culture as the population as a whole, changes his mind at roughly the same time that the public does.  With an important exception to which I'll return momentarily, rule-of-law values treat A) as highly questionable: judges are supposed to decide cases according to the law, not public opinion.  By contrast, anyone who is remotely realistic will acknowledge that B) is routine.

Now a word on the exception.  Some doctrines expressly take account of public opinion or something related to it.  For example, under the 8th Amendment, a punishment is impermissibly "cruel and unusual" if it offends "the evolving standards of decency that mark the progress of a maturing society."  Thus, we can explain the Supreme Court's decisions in the 1970s--first invalidating the death penalty in Furman v. Georgia and then validating new death penalty statutes in Gregg v. Georgia and companion cases--as a process of self-correction: The Justices thought that society had evolved away from the death penalty, but the legislative reaction to Furman showed that it hadn't, and so the Court adjusted in Gregg.

However, outside the context of legal tests that directly incorporate some notion of public opinion or widely shared values, Justices are quite reluctant to acknowledge a direct role for public opinion.  There may well be one--and some of the examples of quick retreats by the Court or individual Justices, without a change in personnel, strongly suggest that public opinion is directly playing such a role.  So too, a large-n study correlating the liberal-versus-conservative "public mood" with liberal or conservative outcomes tends to support the inference of direct impact on Justices' decisions.  But even there, one could hypothesize instead that the Justices are part of the same mood swing so that rather than reacting to the public change of heart, they simply share it.

Two nice test cases that show how hard it is to tease out the difference between Justices reacting to public opinion and Justices changing their own mind are the two living retired Justices: O'Connor and Souter.  Both Justices O'Connor and Souter became generally more liberal over the course of their respective time on the Court, even as the public mood yo-yo'ed a bit.  Moreover, in much of the same period, other Justices, such as Scalia and Thomas, did not become more liberal.  It is thus hard to attribute the ideological drift of either O'Connor or Souter to broad factors affecting the society as a whole or to micro-shifts in public opinion on particular issues.

At the same time, however, it is by now a commonplace that Justice O'Connor had a knack for reflecting public opinion better even than elected legislators.  Whether that was entirely due to her middle-of-the-road sensibility or a mixture of her own attitude and an eye on public opinion is extraordinarily difficult to figure out.  It's quite likely that Justice O'Connor herself doesn't know.

Thus, I came away from the conference thinking that there is a very large research agenda for someone interested in figuring out how public opinion gets translated into judicial decisions.  I also think that research agenda will be very challenging to pursue.  The political scientists' measures of decided cases--in order to produce statistically significant results--must wash out all sorts of legal and doctrinal nuances that make a large difference in particular cases.  A complete picture of the decision making process in the Supreme Court (or other courts) would require expertise in statistics, law, psychology, and likely several other disciplines.  Whether insights from these fields can be successfully synthesized remains to be seen.

Tuesday, February 02, 2010

State Anti-Mandates


By Mike Dorf

An AP wire story that reports on a movement in state legislatures to forbid any sort of "individual mandate" to buy health insurance, even one coming from a federal statute.  The story (accurately) quotes me as follows: 
"They are merely symbolic gestures," said Michael Dorf, a constitutional law professor at Cornell University. "If this Congress were to pass an individual mandate, and if it is constitutional - which I believe it is - the express rule under the supremacy clause (of the U.S. Constitution) is that the federal law prevails."
In a display of typical two-sides-to-every-issue false equivalence, the story introduces this quotation by noting only that "it's questionable that such . . . measures could shield state residents from a federal health insurance requirement."  Questionable?  I'll say.  Much in the same way that it's questionable that the Flintstones accurately portrayed early human life in all of its details. You know, what with the "experts" questioning the co-existence of humans and dinosaurs.  Because, after all, other experts don't raise those questions.

Thus, at the risk of stating the obvious, I thought I'd reproduce my reasoning.  Here's the core of a fairly typical email I received:
Why do you believe that a Federal mandate to force individuals to buy private insurance is constitutional?  Furthermore, why do you believe that States who choose to exercise their 10th Amendment rights are only going through "symbolic gestures"?
And my reply:
If Congress has the power under Article I to enact an individual mandate, then it is valid law that, under the Supremacy Clause of Article VI, displaces any contrary state laws: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."  The Tenth Amendment reserves to the states only those powers that are not given to the federal government: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

So the only way that the state laws could be enforceable would be if Congress lacked the power to adopt the individual mandate.  However, as I argue here, Congress has the affirmative power.  Nor is the libertarian objection a constitutional obstacle, as I argue here
None of this is to say that the individual mandate or any particular health care reform bill is wise policy.  But the constitutional objections being raised are extraordinarily weak under existing precedents.
To all of that, I would simply add that discarding the modern doctrines on which my analysis is based--as was suggested to me by another emailer and has been sometimes advocated by Justice Thomas (but by no other Justice in over 70 years)--would be extraordinarily disruptive of the national economy.  There was a time, not to long ago, when stability was especially valued by conservatives.  Where have you gone, Dwight D. Eisenhower?  Our nation turns its lonely eyes to you.

Finally, happy Groundhog Day to all, especially the robotic groundhog being proposed by the counter-productive, self-parodying PR gurus at PETA.  (In case you're wondering, my complaint isn't that PETA is too radical; on the contrary.)