Monday, May 31, 2010

No Post Today -- Memorial Day

By Mike Dorf

Over the course of the summer I may take an occasional day off from blogging.  Normally when I do so, I'll just go a day without posting but I thought I'd post a warning to that effect, because the email and reader feed has been a bit buggy lately.  I think those kinks have been worked out.  If in the coming months a weekday passes when you don't get an update from DoL, just assume I'm being lazy (or, uhm, working on "other projects").

Meanwhile, for Memorial Day, I'll simply thank past and present members of the armed forces for their service and sacrifice, and express a hope for their safe return.

Friday, May 28, 2010

Republicans Should Thank Bill Clinton Every Day of Their Lives

-- Posted by Neil H. Buchanan

“Right now, jobs matter more than deficits. And even if the deficit is your top concern, imagine what will happen to it if hundreds of thousands more Americans lose their jobs.” A strong, succinct defense of deficit spending from an Obama economic advisor, or a leader in Congress, or the President himself? No. According to this New York Times news article, the speaker was Gerald W. McEntee, president of the American Federation of State, County and Municipal Employees. The most direct, unadulterated, and honest defender of deficit spending during the weakest economy in over 70 years is a union head, and the head of the public employees' union, to boot. Democrats have been pandering to anti-union sentiment (even while expecting unions' continued support -- and getting it) even longer than they have been pandering to deficit hysteria. It is hardly a surprise that Mr. McEntee's defense was not front-page news.

The news article itself discussed the political pressures facing Democrats, describing them as being simply terrified of voting in favor of anti-recession legislation because they know that Republicans will hammer them with complaints about running up the deficit. As one freshman Democrat described a proposal to extend benefits for the long-term unemployed, to subsidize health insurance for the unemployed, and to create a summer jobs program: "We have put together a wonderful bill, and every piece in it can be justified as good public policy. But it is not paid for. Until somebody shows me a path for this being paid for, I am a no."

We are now, therefore, in a situation where many Democrats quite understandably believe that they will lose the next election if they respond to a terrible economic situation with the only policies that could actually end that recession. They foolishly created "pay-as-you-go" rules that require that all new spending be "paid for" in the same legislation; and even though they included exceptions, any possible use of those exceptions is now being overridden by white-knuckled political panic. States are about to lay off tens or hundreds of thousands of public workers, but the federal government will either do nothing or -- at best -- do too little, because Democrats cannot speak the truth: deficit spending to fight the weak economy continues to be absolutely essential. When the double-dip recession comes, of course, it is the Democrats who -- as the party in power -- will be blamed. And they will have nothing to say, other than: "But we thought you didn't like deficits!"

As I have said many times before (most recently here), there is a clear villain in all this. Bill Clinton made a fateful choice after the 1994 mid-term election debacle, agreeing that the budget should be balanced. This was not an inevitable choice, and it was a clear break from his party's previous position that -- notwithstanding the Blue Dog fiscal conservatives in his party -- defended the use of deficits in appropriate situations (and refused to endorse the meaningless notion of annual budget balance as the holy grail of fiscal policy).

Clinton, in other words, put us where we are today. (It is not as if many Democrats did not egg him on, but it was absolutely not necessary for him to make that terrible decision.) When the dot-com bubble inflated tax revenues in the late 1990's, and the budget ran a surplus late in his presidency, Clinton's advisers proclaimed the brilliance of his strategy. "Clinton brought down the deficit, and the economy prospered!"

Democrats now, of course, want everyone to remember that Bush II ran up huge deficits, which he did. Even so, that does not help the Democrats. Telling everyone that deficits are bad, but that today's deficits are really someone else's deficits, still tells everyone that deficits are bad. There is no space left for anyone -- except a union president whose members' financial self-interest is directly affected by deficit spending -- to speak the truth. The only politically acceptable way to increase spending is to simultaneously raise taxes or reduce other spending -- during a recession. To their credit, the party's leaders did include a tax increase on the rich (which is the least likely kind of tax increase to exacerbate a recession) in the bill, but the party -- again, happily led by Bill Clinton -- long ago gave up on the idea of seriously progressive tax policy. (Yes, Clinton's first big tax bill raised taxes on the rich, but he later apologized for that, saying that increasing taxes progressively was a mistake.)

In short, the Democrats are in a box of their own making, and all the Republicans have to do is to say what they are inclined to say in any case: government bad, spending bad, Democrats spend big, deficits ruinous. No matter what Democrats do or say, they have already lost the game by agreeing to insane ground rules. It did not have to be this way. Now that they have nowhere to turn, they should accept the fact that they have to undo their years of pandering. That will not be easy. Their current situation, however, is hardly a walk in the park. In any case, this cannot continue.

Thursday, May 27, 2010

Prison, Death, and Anchoring

Posted by Sherry Colb

 In my FindLaw column this week, I discuss the case of Graham v. Florida, in which the Supreme Court held that sentencing juvenile non-homicide offenders to life imprisonment without the possibility of parole ("LWOP") violates the Eighth Amendment prohibition against cruel and unusual punishments, by virtue of gross disproportionality between crime and punishment.  In the column, I explore the possibilities that may open up after this ruling, in which the Court took seriously the extreme deprivation entailed in imprisoning someone for the rest of his life.  I propose, among other things, that some of the cases addressing disproportionality in the capital context might now become usable precedent in challenging prison sentences more generally.

In this post, I want to raise the possibility that the persistence of the death penalty in the U.S. may account for the Court's failure, up until this point, to take seriously the grave deprivation that a prison sentence -- whether for life or for a term of years -- represents.

In several cases, the U.S. Supreme Court has upheld very long prison sentences imposed for non-violent offenses, including drug possession and theft.  It was perhaps difficult for the Court to become very exercised about a criminal spending his life (or some shorter period) in prison when other people in the system were going to be killed by a government executioner.  With the possibility of execution available, in fact, a sensible murder defendant might even see fit to confess his crime, plead guilty and gladly accept a life sentence without the possibility of parole.  Death, by being "different" enough to acquire its own procedural Eighth Amendment jurisprudence, is able to make prison look relatively benign by comparison.

If I am right about the role of capital punishment in defining people's perceptions of prison sentences, this sort of "everything is relative" thinking falls into the category of what is sometimes called the "anchoring and adjustment" heuristic.  Anchoring and adjustment refers to a cognitive bias which leads people to focus excessively on a familiar piece of information that they encounter such that the focus distorts their perceptions and decision-making processes.  For example, if I go into a store to buy a television set, and one of the sets I see costs $5000, I may be inclined to pay more for the television I actually buy than if the most expensive television I encountered in the store cost $1000 instead.  The $5000 price tag makes other television prices seem more like "bargains" to me than they otherwise would, so I may be more willing to spend $500 on a set.  My expectations have been adjusted by the $5000 price-tag anchor.

It seems quite plausible that the presence of the death penalty on the "shelf" of possible sentences that a criminal might receive makes prison seem less severe to onlookers, however lengthy the sentence.  This might be true for juries and judges as well as for the public more generally.  And it might help account for the fact that prison sentences in the United States are so much lengthier than sentences for the same crimes in other comparable Western countries.  Without a potential death sentence to anchor people's thinking, the true weight of life imprisonment (and of other long sentences) is better able to make an impression.

Indeed, anchoring could explain why the Court is, for the first time, convinced that LWOP is categorically unduly harsh punishment for most under-age offenders, only five years after the Court held in Roper v. Simmons that the Eighth Amendment precludes the execution of under-age offenders.  After Roper, LWOP became -- for the first time -- the most severe sentence that a juvenile offender could receive, no matter how serious the offense.  This fact well may have affected the Court's perception of the penalty's harshness.

I am reminded, in thinking about anchoring and adjustment, of a case I learned about when I visited England.  A man there was sentenced to being drawn and quartered for his crime (treason, if I remember correctly), but the King "commuted" his sentence to death by simple hanging and beheading.  When the alternative is drawing and quartering, being beheaded begins to look like an act of great mercy.

Wednesday, May 26, 2010

How the Constitutional Challenge to the Individual Mandate Could Win By Losing

By Mike Dorf

As I noted in my FindLaw column last week, the Supreme Court's recent decision in U.S. v. Comstock strengthens the already very strong case for upholding the individual mandate in the health insurance reform law as valid Commerce Clause legislation.  I wrote in the column that nevertheless, "it is possible that five Justices could vote to invalidate the individual mandate to purchase health insurance. In my view, doing so would be very difficult to square with the rulings in Raich and Comstock, but predicting how the Supreme Court will rule on any issue is an inexact science at best."  What I had in mind was the possibility that the Court could disregard or give an idiosyncratic interpretation to its precedents, in the fashion of Bush v. Gore.  I did not mean to suggest that this is a close case on which reasonable minds could differ about how to faithfully apply the precedents.

What, then, explains the fact that Republican attorneys general around the country are pressing their extraordinarily weak case against the mandate?  Here I'll explore three non-exclusive explanations.

1) Not every state AG is an expert in constitutional law.  A casual reader of the federal Constitution could well think that the individual mandate--indeed, much of what the federal government does--is outside the scope of the powers delegated by the Constitution.  And such a casual reader would only be wrong in the sense that his straightforward reading has been rejected by history and Supreme Court doctrine.  But given political opposition to the health reform law, a relatively uninformed state AG might instruct his staff to file a challenge.  He would hear that there is a difference of opinion on such matters, but he would chalk up that difference itself to ideology.  Even if he were moderately informed, he could find Cato Institute white papers and other scholarly works arguing against the mandate's constitutionality.  An only moderately informed AG would not realize that the government's contrary argument is much stronger.

2) Some number of the challengers to the individual mandate probably don't care whether they prevail in court.  They could simply be seeking to rally the base.  Or, more charitably, they may take a "departmentalist" view of constitutional interpretation.  Under such a view (which I have elsewhere described as legitimate), members of Congress and state officials, no less than judges, are entitled to act on their own independent understanding of the Constitution.  Certainly Republicans who thought the mandate was unconstitutional were entitled to vote against it as a bill.  State AGs are likewise entitled to litigate against it.  But absent a Bush v. Gore-esque bolt from the blue, they should expect to lose.

3) Finally, let me float a conspiracy theory which I do not believe to be causally explanatory at a fully conscious level: Losing a challenge to the mandate would be good for the Republican Party, especially if the case goes to the Supreme Court, and thus gains visibility.  The current Supreme Court is basically conservative except in the roughly quarter of the ideologically divided cases when Justice Kennedy swings liberal.  Nonetheless, some of those cases are very high profile, as would be a challenge to the individual mandate.  If such a challenge were to fail by a vote of 8-1 (the outcome I would regard as most likely), that would reinforce a widely held view that the Court is substantially more liberal than it is.  That, in turn, would further rally conservative voters and activists, and shift public debate over the Court even farther to the right.  Thus, challengers to the mandate could win by losing.

Tuesday, May 25, 2010

Of Good Days and Evil Ones

By Mike Dorf

Yesterday's Supreme Court decision in Lewis v. Chicago marked a good day for the Court.  In a unanimous opinion authored by Justice Scalia, the Court held that African-American applicants to become Chicago firefighters who earned scores in the "qualified" range but not in the "well qualified" range could bring a disparate impact lawsuit if it was timely relative to when the City applied the categories, even though untimely relative to when the City first made the classifications.  That's perfectly sensible.  Under the relevant statute and regs, a plaintiff has 300 days to file from "after the alleged unlawful employment practice occurred."  Each time the City used the tainted list--the one drawing only from the "well qualified" pool--it produced a new  disparate impact, i.e., a new "unlawful employment" decision.

Give all the Justices high marks for a sound procedural holding that puts aside whatever ideological divisions they have on matters of racial justice.  I have in the past called out Justices (including Justice Scalia), for elevating ideology over their jurisprudential principles.  Here, I'll praise Justice Scalia for applying his brand of textualism, even though it produces a liberal result.  (The opinion is full of textualist chestnuts, such as: "It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.")

And yet there's something very peculiar about Justice Scalia writing an opinion that matter-of-factly expounds the disparate impact rule of Title VII, for it was less than a year ago that this same Justice Scalia warned, in his concurrence in Ricci v. DeStefano, of the inevitable coming of the "evil day" when the Court will have to confront the question whether the disparate impact prohibition is itself unconstitutional (insofar as it produces intentional discrimination against non-minorities by employers trying to avoid disparate impact on minorities).  I understand that Chicago did not argue that the disparate impact prohibition was unconstitutional, and so Justice Scalia and the Court did not have to address the issue.  Nonetheless, it is unsettling for the Court to say that the law is the law and if you don't like it ask Congress to change it, even as the very Justice through whom the Court says that has also indicated that he has substantial doubts about the law's constitutionality.  Disparate impact entered the Title VII case law nearly 40 years ago (in the Griggs case), and was codified nearly 20 years ago. I think Title VII's disparate impact rule is constitutionally valid, but if the Court has its doubts, one would expect them to be resolved already.

Monday, May 24, 2010

The Liberalism of Naifs

With a sizable chunk of the American public under the belief that a center-left President pursuing what are, by international standards, center-right policies, counts as a socialist, it is appropriate to ask what, exactly, is the alternative that appeals to them, this thing called "libertarianism."   I would borrow a phrase from the 19th century German social democrat August Bebel.  "Anti-semitism," he famously said, "is the socialism of fools."  To my mind, libertarianism is the liberalism of naifs.

As Neil observed on Friday, the spotlight that comes with being a major-party nominee for Senate may turn Rand Paul's principled opposition to basic civil rights into an opportunity to jettison a principle or two.  But Paul is, of course, mostly a vehicle for the tea partiers rather than a phenomenon in and of himself.  Thus, the more apt question is why now.  We can grant that the public are angry, and understandably so, but at a time when our most severe challenges are matters of under-regulation---insufficient attention to mine safety, cozy relationships between industry and regulators regarding offshore drilling, laws that permitted bankers to pocket hundreds of millions while bilking pension funds and taxpayers of trillions, etc.---why would anger manifest itself as a call for less government?

The answer, I think, is that libertarianism, like other ideologies, provides a single ready answer to all questions: Government is the problem.  Communists (real communists) believe that poverty and other social ills are all the product of the exploitation of the poor by the rich; Nazis say everything is the fault of the Jews; and radical Islamists blame the social and economic problems of most Islamic societies on the ruling elite's corruption by Western culture.  Of course, in 21st century America, one can hardly found a viable political movement on communism, Nazism, or radical Islam.  By contrast, libertarianism is a kind of extreme form of core American values themselves.  Goldwater was tapping into something authentic when he said that "extremism in the defense of liberty is no vice."  Authentic but nonetheless wrong in its zeal to oversimplify.

Consider the core gripe of the tea partiers: TARP.  It's one thing to have been against TARP in the fall of 2008.  At that time, it wasn't clear it was going to work and if it didn't, we would have had a second Great Depression and we would have blown $700 billion.  But most responsible economists---across the ideological spectrum---thought something like TARP was necessary.  And they were right.  Again, it's hard to be certain about these things because we can't run a controlled experiment, but it appears that the combination of Bush's TARP and the Obama stimulus averted an economic catastrophe.  Given that, it's downright perverse for Republican primary voters to have tossed out Senator Bennett based on his support for TARP.

Now I am sure that if polled on the question, just about every tea partier would deny that TARP or the bailout averted a catastrophe and indeed, would claim that they made things worse.  But these denials would not be based on data.  They would be based simply on the ideological predilection to believe that government always makes things worse.  I'm not saying a respectable economist couldn't contest claims about the efficacy of the bailout or the stimulus; I'm saying that the vast majority of people who doubt their efficacy do so for ideological reasons, not empirical ones.  Thus, they will say that the housing bubble itself was the product of government interventions to promote home ownership by people who were previously priced out.  (The bubble surely was inflated in that way, but that's only a piece of the puzzle.)  It took me all of 3 seconds on Google to find a libertarian blogger who thinks the lesson of the BP disaster (and Hurricane Katrina) is that we should minimize government because government does a bad job with everything.  Name the problem and you can find a libertarian who will say that government is its cause.

I'll close this post with a disclaimer and an anecdote.  The disclaimer: I don't think that everyone who calls himself or herself a libertarian is naive or a nut.  The term is often used as a shorthand for fiscal conservatism combined with social liberalism.  There are thus a whole range of positions that would be conventionally classified as "libertarian" that are perfectly defensible.  What I have in mind by "libertarianism" is libertarianism as an ideology, the sort of message spouted by 15-year-old boys carrying copies of The Fountainhead---and increasingly, by angry adults voting in Republican primaries.

That brings me to my anecdote.  Early in my teaching career, I said in the course of a con law lecture that the dormant commerce clause is principally a doctrine of federalism, and only secondarily a vehicle for the promotion of capitalism (the reason why is not important for present purposes).  A student objected that the DCC did not promote capitalism at all.  After a little back and forth, it became clear that the student thought it improper to use the word "capitalism" to describe an economic system in which there was any regulation of the economy.  I thanked him for his comment and moved on.  He persisted after class.  Curious as to what he meant, I asked whether regulations designed to make the economy more competitive---such as antitrust law---would be permissible in his view.  No, he said.  What about the bare minimum of courts to enforce contracts?  Surely that's okay, right?  No again.  He was committed to the proposition that any government action respecting the economy polluted it.  Eventually I tried to give up.  I said that when I used the words "capitalism" or "free enterprise," he should understand me to be talking about regulated markets or "fake capitalism" or whatever term he thought appropriate for this debased economic system.  But even that didn't satisfy the student.  He insisted that it was wrong for me to use the words in the way I was using them.  Eventually I had to just tell him I had to leave.

I'm willing to grant that this student went beyond the teachings of his masters, but I tell the story because of what happened later.  That night I received an email from the student explaining his persistence.  He gave me a revealing analogy.  If a Holocaust denier were giving a speech, he asked, wouldn't I, as a Jew, feel obligated to challenge him?  And, my student went on, as an "objectivist" (a term for followers of Ayn Rand, for whom, alas, Rand Paul is not named), he was equally obliged to challenge misstatements about capitalism.  I read the email three or four times, and showed it to a colleague, to verify that the student was equating a semantic disagreement over the proper use of the terms "capitalism" and "free enterprise" with Holocaust denial.  He was.

Was my student representative of all libertarians?  No.  But the experience leads me to think that those among the tea party movement who draw Hitler mustaches on Obama because he supported Mitt Romney's version of health care reform are not completely unconnected to the core philosophy of their movement.

Friday, May 21, 2010

Bagram Is Not Gitmo, Says DC Circuit

By Mike Dorf

Herewith a few reactions to today's D.C. Circuit's ruling in Al Maqaleh v. Gates that the constitutional right of alien enemy combatants to file a federal habeas petition--found by the Supreme Court in Boumediene v. Bush to cover detainees at Gitmo--does not extend to detainees at Bagram Air Base in Afghanistan:

I.  It's now very hard to characterize detention issues (as opposed to treatment issues) as simply a mess created by the Bush Administration.  As the DC Circuit opinion noted, the Obama Administration was given the opportunity to take a different view, but stuck with the Bush Administration's position that Boumediene does not cover Bagram.  Neal Katyal--who successfully represented Gitmo detainees in the Hamdan case--argued for the government in Al Maqaleh, and the panel that ruled for the government included two liberal judges: Harry Edwards and David Tatel.  (The third member of the panel, and the author of the unanimous opinion, was the more conservative Judge David Sentelle.)

II.  About a third of the opinion is devoted to recounting the backing-and-forthing of detention cases among the district court, the DC Circuit, Congress, and the Supreme Court, including the Supreme Court's rulings in Rasul, Hamdan, and Boumediene.  Perhaps I'm reading this into the opinion, but I detected a distinct sub-text of "What was the point of all of that, if this is where we end up?"

III.  Where we end up is with the DC Circuit applying a three-part balancing test from Boumediene, with the factors and their application going as follows:

"(1) the citizenship and status of the detainee and the adequacy of the process through which that status
determination was made"

The detainees win this one.  Their citizenship and status (aliens held as unlawful enemy combatants) are the same as those of the Boumediene detainees.  The process they received--an Unlawful Enemy Combatant Review Board--was even less protective of the rights of detainees than the Combatant Status Review Tribunals found inadequate in Boumediene.

"(2) the nature of the sites where apprehension and then detention took place"

The government wins this one because the government does not exercise over Bagram anything like the de facto sovereignty it exercises over Gitmo.  Although the DC Circuit rejected the government's proposed per se rule that anything less than de facto sovereignty means no constitutional right to habeas, the panel also called the detainees' lawyers to task for failing to explain how, under their proposed alternative, there would ever be a U.S. military base on foreign soil to which the writ does not run.

With the score tied 1-1, that brought in play the third factor:

"(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ."

Here the court thought the government won decisively.  Quoting the Eisentrager case, and making clear that its observations were even more applicable to Bagram now than they were in Germany after the end of World War II, the court explained that habeas:

trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

IV.  At the end of the opinion, Judge Sentelle addresses what many may regard as the core complaint: The government chose to detain these plaintiffs--all of whom allege they were apprehended outside Afghanistan--in an active war zone, so why should the characteristics of the military base the government chose determine the availability of habeas?  The court says that the three-factor test leaves room for the possibility of an additional factor where it appears that the government chose where to house detainees in an effort to avoid judicial supervision, but that such a claim is not plausible here: These detainees were taken to Bagram long before Boumediene even established a constitutional right to habeas for people at Gitmo.

With due respect, I think this answer inadequate in two ways.  First, it was pretty clear that the government originally chose Gitmo rather than a military base formally within the U.S. precisely because, under a plausible reading of Eisentrager, doing so would avoid habeas jurisdiction.  Perhaps the government didn't anticipate that it would get an advantage from holding prisoners at Bagram rather than Gitmo, but it wasn't for lack of trying.

Second, there is a more subtle problem.  Even if we grant that the government did not in the past deliberately choose to hold these detainees at Bagram for reasons of jurisdiction-avoidance, the rule the court announces--namely, that the writ doesn't run to active war zones though it does sometimes run to other places--gives the government an incentive going forward to hold prisoners in active war zones.  Perhaps that will sometimes make sense for military reasons, but often it won't.  In WWII, the U.S. held thousands of German prisoners inside the U.S., presumably because they could be more readily secured here than in places that German troops could more easily attack.  It is at least a bit ironic that a decision that aims to protect the military from civilian judicial interference establishes a rule that will make considerations of court jurisdiction relevant to--and occasionally dispositive of--military detention decisions.

V.  So what's my solution?  I confess that I don't really have one, because I think at bottom we have a categorical mismatch.  We have two paradigms for detention: (1) crime, which gives rise to all of the procedural protections of the civilian justice system; and (2) war, which gives rise to the protections of international humanitarian law but typically not a right of access to civilian courts.  People engaging in terrorism fall somewhere in between crime and war, and we still haven't figured out how exactly to address that problem.  So far, the most creative thinking has come from those who want to have the advantages of military detention (no judicial supervision) without paying the price (e.g., no interrogation).  That was the view of the Bush Administration, continued to a substantial extent by Obama.  It's also reflected in the recent proposal by Joe Lieberman to strip terrorism suspects of their citizenship.  What's needed are creative ways to address the intermediate category that respect core principles of due process (whether strictly required by the Constitution or not).  I had hoped we would get those from the Obama Administration.  So far, not so much.

Tap Dancing into the Senate

-- Posted by Neil H. Buchanan

In my most recent FindLaw column, I discuss the claims that laws designed to change the way people eat (mandating less salt, lower fat, clearer labeling, etc.) are a violation of freedom of choice. I argue that they are not, essentially by extending the argument that there is no meaningful "no government" baseline that allows people to say, "But for the government, this is what would happen." Even more than in other areas of policy, such as tax law, it is simply bizarre to try to imagine a "state of nature" in which the government plays no role in shaping our food choices. Unsurprisingly, however, food lobbyists have insisted on describing such laws as being an overreach by the "food police."

The column is available here, and I certainly do hope that people will read it. Normally, I would devote this entire post to discussing an issue related to the column. Here, however, I will diverge from the usual pattern and will, instead, discuss one of the most fascinating interviews that I have seen in a long, long time. Many readers will probably have heard by now about the interview on "The Rachel Maddow Show" this past Wednesday evening with newly-nominated U.S. Senate candidate Rand Paul, a political neophyte who is the son of Rep. Ron Paul of Texas and a favorite of the Tea Party people. The interview is available here (preceded by commercials). It is twenty minutes long, with no breaks -- apparently not by design, but because the interview simply took on a life of its own. I strongly encourage readers to view it now, before reading further. In fact, if you have a choice of viewing the interview or reading the rest of this post (along with whatever else one might do with the rest of those twenty minutes), there is no question that you should watch the video.

The headline coming out of the interview truly is astonishing. Paul, who had given two interviews in the past month (including one earlier on Wednesday) had taken the position that the "public accommodations" provision (Title II) of the Civil Rights Act of 1964 is a violation of people's freedom. The public accommodation provision of that law, of course, made it illegal for any business that is open to the public to exclude people on the basis of race and other impermissible factors. It is the law, in other words, that makes it illegal for a business to say "whites only," or "Christians only," or "U.S.-born only."

Paul had taken the position during an interview with a Lexington KY newspaper's editorial board that Title II should not have become law. The issue came up in an NPR interview before Maddow's show as well. Maddow showed clips of those interviews before she began her interview with Paul, and she began by asking him about his stand on this issue. What ensued was riveting, gut-wrenching political drama of the highest order. Even though Paul had made it clear that he had a problem with Title II, he ducked and evaded like an experienced politician. Maddow, who has a well-earned reputation as an extremely respectful -- but very persistent -- interviewer, spent almost the entire 20 minutes simply trying to get him to say in clear language what he had already said without quite saying in one sound bite: Businesses should be allowed to exclude people from their private property on the basis of race (and presumably any other factor).

Paul's refusal to be clear and forthright was startling in part because he had not, to that point, been using code words or anything that seemed to hint at misdirection in his prior interviews. This was not, it seemed, a matter of getting someone to admit to something that they had been dancing around for months or years. His position was not only clear from his previous interviews, but it is entirely consistent with his philosophical position -- a position that is fully congruent with the neo-Lochnerian position of the libertarian right. This was, in short, not a matter of George H.W. Bush claiming that the "Willie Horton ad" was not really playing on racist fears, or Bill Clinton saying that he did not have "sexual relations" with Monica Lewinsky. This was an interviewer asking a candidate: "You've said on multiple occasions that -- as your broader philosophy suggests -- a major provision of a major civil rights law is wrong because it abridges people's freedom, right?"

What made the candidate's refusal to answer so surprising was that this is a man who represents a group of people who claim to view principled consistency as the highest personal and political virtue. No political correctness (as meaningless as that phrase is) for these people! It is, we are told, time to take our government back from the career politicians who have sold out our freedoms. (That, in fact, was Paul's sound bite from his acceptance speech after his win in the Republican primary on Tuesday night.)

Some readers of this blog have chided me for being surprised when people do not live up to their stated principles, even when their self-image is invested in living up to principles; and this is another case in which I confess to expecting more from someone with whom I strongly disagree. (I had expected the interview to focus on those areas of libertarian ideology with which Paul and a liberal like Maddow might agree: drug legalization, anti-war foreign policy, etc. Paul had, in fact, announced his Senate candidacy on Maddow's show last year; so this was hardly a case of a principled man fearlessly going into hostile territory -- although the post-interview spin is unsurprisingly casting the incident as just that.)

Beyond the hypocrisy, the interview is simply fascinating to watch for the political tap dance that Paul tried to execute. He evaded, dodged, and weaved in a way that would make any political handler proud. Among his defenses: (1) He is not a racist (which is good to know, but it really does not matter whether he personally likes black people when the issue is his critique of a particular law), (2) He likes the rest of the Civil Rights Act, because it prevents government-sponsored racism (which is nice, but it hardly seems relevant to say that he likes 9 out of 10 provisions in the law: Does he also like 9 out of 10 amendments in the Bill of Rights?), (3) Liberals like Maddow might not wish to pursue this issue, because it might result in restaurants and bars being forced to allow people to carry guns (an interesting point, sort of, except that it says nothing about what he views as the right answer to the question), (4) Title II violates the First Amendment's free speech protections (a genuinely bizarre dodge, given both that the law prohibits actions and that this man's backers claim to be all about understanding and upholding the Constitution, yet he betrayed a complete lack of understanding of what the First Amendment means), and (5) this is all old news and not really important (which would imply that a candidate's views on laws that are unlikely to be repealed should be irrelevant to voters, making suggestions that, say, "Obama wants to take your guns away" equally irrelevant).

Finally, it is interesting to note that Paul announced on Wolf Blitzer's CNN show yesterday that he would have voted for the Civil Rights Act, if he had been in the Senate in 1964. This is viewed as a major "walk back" of his position; and in a way it is. During the Maddow interview, however, Paul tried to suggest that one might vote "yes" on a bill even if one disagreed with a part of it, if the balance of the bill was positive. Announcing now that he would have voted yes on the whole bill does not in any way clarify whether he believes that the public accommodations provisions should be on the books.

It seems unlikely that even this extreme position -- a position so extreme that even the most conservative members of his party quickly distanced themselves from it -- will cost Paul the Senate seat that he seeks. He can blame the "liberal media," and the issue might not resonate with voters in his state. No matter what happens in November, however, Wednesday's interview was simply fascinating.

Thursday, May 20, 2010

Federalism Versus Politics

By Mike Dorf

In my latest FindLaw column, I explain why Monday's Supreme Court decision in United States v. Comstock portends upholding of the individual mandate, if and when a challenge to the federal health care reform legislation reaches the Supreme Court.  Comstock upholds the power of Congress to authorize civil commitment of federal prisoners found to be sexually dangerous (e.g., child molesters), even after their sentences for federal crimes have run.  I explain that the reasoning of Comstock appears to make the individual mandate an even easier case for sustaining federal power.  Nonetheless, I warn that it's not always possible to predict Supreme Court outcomes based on doctrinal analysis of prior cases.  (Think Bush v. Gore.)  Here I want to explore the possibility of a different--more political--explanation for the decision in Comstock and other federalism cases: At least some Justices abandon their views about the scope of federal power when doing so serves their (presumed) substantive policy preferences.  I shall call this the "politics hypothesis."

I'll use as my (admittedly tiny) database the following cases either accepting or rejecting a federalism challenge:

U.S. v. Lopez -- invalidating the Gun Free School Zones Act
U.S. v. Morrison -- invalidating the civil remedy provision of the Violence Against Women Act
Nevada v. Hibbs -- upholding the Family and Medical Leave Act
Gonzales v. Raich -- upholding the application of the federal Controlled Substances Act to marijuana that was locally grown for local consumption.
U.S. v. Comstock

Let's begin with an arresting fact: None of the liberals appears to vote politically in any of these cases: Justices Stevens, Souter, Ginsburg, Breyer, and now Sotomayor (albeit in only one case) vote to sustain federal power in each case, including cases such as Raich, in which they presumably would, on policy grounds, oppose the extension of the federal marijuana prohibition to medical marijuana that is legal under state law.

Note too that Justice Thomas has a perfect record as voting to reject federal power in each of these cases, ruling out the possibility that he is voting politically.  That leaves us with a relatively small number of votes to explain: Cases in which one or more generally conservative Justices who sometimes vote to limit federal power instead vote to sustain federal power.

Let's begin with Hibbs.  It has been suggested that Justice O'Connor voted to sustain federal power in that case because she saw it as a women's equality case, and on such issues, her policy preference runs pro-regulation.  But this seems hard to square with the fact that O'Connor voted with the majority in Morrison, which was even more clearly a women's rights case.  One still-political hypothesis is that Morrison pre-dated Bush v. Gore, after which O'Connor moved left.  But then how do we account for O'Connor's dissenting in Raich, indicating she was sticking with her federalism preferences even at what she would regard as a cost of voting for the challenger to a marijuana law?  If O'Connor's Hibbs vote was political, it was uncharacteristically so.

The same analysis more or less applies to Rehnquist's vote to sustain federal power in Hibbs.  By some accounts, Rehnquist came to appreciate the need for a law like the FMLA when, to help out his daughter, he picked up his grandchildren from school.  Perhaps, but as with O'Connor, it's hard to imagine that, as a policy matter, Rehnquist was for legalizing medical marijuana--and so politics alone would have had him in the majority in Raich; yet he dissented.

Speaking of Raich, it could be invoked as evidence that Justices Scalia and Kennedy, in joining in the decision to sustain federal power, were simply giving vent to their tough-on-drugs preferences.  But the story doesn't work so well for Scalia, in light of his willingness to dissent in Comstock.  Surely he's equally tough on child molesters.

The politics hypothesis thus looks plausible only for Justice Kennedy and possibly for CJ Roberts and Justice Alito based on their votes to uphold the law in Comstock--though it's hard to say much about Roberts and Alito based on just one case.  And even Kennedy's voting pattern is hardly decisive in this regard.  I suspect that he had policy sympathy for the substantive goals of the laws he voted to invalidate in Morrison and Hibbs, but that his federalism druthers simply prevailed.  Moreover, a pretty good doctrinal argument can be made for reconciling all of his votes in these cases.  And add to that the fact that, with O'Connor, Kennedy was never fully gung ho on rolling back federal power (see his concurrence in Lopez), and it's not surprising that he would "swing" on the close cases, even completely ignoring politics.

Bottom Line: The voting pattern provides little to no evidence for the proposition that the Court's federalism decisions are "just politics."  At most, it provides some inconclusive evidence for the influence of politics on Justice Kennedy and even less for CJ Roberts and Justice Alito. For a related argument, readers may wish to look at my 2007 essay for a federalism symposium at St. John's Law School.  Here I'll simply quote the abstract:

Empirical research indicates that factors such as an individual Justice’s general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments—independent of whether the particular outcome in any given case is “liberal” or “conservative”— can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which “conservative” Justices voted to invalidate a strict federal drug provision in light of California’s legalization of medical marijuana and “liberal” Justices voted to uphold the federal law. Proponents of a strongly legal realist view of the Court might argue that views about federalism are themselves ideological, or that Justices who commit themselves to defending or opposing states’ rights do so because of a calculation about the likely long-term consequences of such a position. But they do so only by draining the realist enterprise of its descriptive and normative power, because, as this Essay argues, genuine principles about federalism are distinctly legal, even if formed on the basis of long-term calculations about the likely effects of various views about federalism. Taking federalism as a point of departure, this Essay describes and justifies a method by which Justices choose the legal principles that bind them.

Wednesday, May 19, 2010

Judicial Experience

By Mike Dorf

I realize that the complaint of some Republicans that Elena Kagan lacks judicial experience is opportunistic.  Nonetheless, points made opportunistically or otherwise insincerely can be correct.  Thus, it's worth asking whether judicial experience is essential--or even helpful--for a Supreme Court Justice.  My answer, unsurprisingly: Not essential; possibly helpful.

To get a handle on the issue--and to avoid confusing the matter with ideological considerations--we might usefully compare and contrast Kagan with the three Democratic appointees currently on the Court: Justices Ginsburg, Breyer, and Sotomayor.  All three served for substantial periods as federal appeals court judges before being named to the Court, Ginsburg on the D.C. Circuit, Breyer on the First Circuit, and Sotomayor on the Second Circuit.  Before that, Sotomayor was a federal district judge, while the other two were law professors, Ginsburg at Rutgers then Columbia, Breyer at Harvard.  Ginsburg specialized in civil procedure, while Breyer was a specialist in administrative law and regulation more generally.  Ginsburg and Sotomayor both had substantial experience as litigators, including, in Ginsburg's case, Supreme Court litigation.  Breyer did some litigation early in his career, including as an assistant special prosecutor during Watergate.  He also worked for Congress and by the time he was appointed to the Supreme Court, Breyer had expertise in criminal law from his role on the Sentencing Commission.  Thus, based on prior experience, all three were supremely qualified.

Now let's turn to Kagan.  Her time as Associate White House Counsel under Clinton and her year as Solicitor General compare favorably with Breyer's executive branch experience.   Kagan's stint as a law professor at the University of Chicago and Harvard was at least as good, and possibly better, training for being a Supreme Court Justice than was the time spent in the academy by Ginsburg and Breyer, simply because Kagan's specialty--constitutional law--is most relevant to what are generally regarded as the most important cases the Supreme Court hears.

What Kagan appears to lack relative to Ginsburg, Breyer, and Sotomayor is the exposure to the breadth of issues of federal law that confront the Supreme Court that long service on a federal appeals court provides.  Service as a federal district judge provides the same, but in smaller doses; much of a district court judge's time is spent in scheduling conferences, picking juries, deciding sentences, and presiding over trials, meaning that in a given period of time, a district court judge will be called upon to decide fewer important questions of federal law than will an appeals court judge.  And service on a state court will also provide small doses, because state court judges also have their attention taken up by issues of state law.

This leaves us with two questions about nominees like Kagan, who lack substantial judicial experience: 1) Are there other experiences that can clue a nominee in on a broad range of issues of federal law? And 2) Are there other experiences that can provide a nominee with a judicial temperament?

As to 1), the answer is yes.  As Harvard Law School Dean, Kagan was deeply involved in evaluating the scholarship of prospective appointees to her faculty, across a wide range of subject areas.  Much of that work would not be directly relevant to the work of the Supreme Court, of course, but much of it would be.  An otherwise excellent professor of constitutional law might not know much about federal securities regulation, tax, or civil procedure.  But a dean who was responsible for hiring in these fields would be broadly familiar with them.  Indeed, it's hard to think of many other experiences that would be equally effective in preparing a prospective Justice for the work of the Court.  Other highly relevant experiences would include: clerking at the Supreme Court (a box Kagan checked); being SG (check); and perhaps writing about the docket as a whole (a la Linda Greenhouse, say, or a blawger!).  Accordingly, if the question is whether Kagan is familiar with the breadth of issues of federal law that come before the Court despite not having served as a federal appeals court judge, the answer is clearly yes.

What about the second point?  Part of being a Supreme Court Justice is being a judge.  Not every legal expert is suited to such work.  One might have a temper.  Another might have difficulty making decisions.  "Judicial temperament" is a catch-all term that encompasses these and other factors that bear on whether someone is suited to any judgeship, including being a Supreme Court Justice.  But it's worth noting that, for the most part, judicial experience will not confer a judicial temperament.  It is essentially a personality trait that judicial experience will either reveal or belie.  On this score, then, Kagan's lack of judicial experience makes it somewhat difficult to evaluate her judicial temperament, but it does not suggest that she lacks it.  On the contrary, just about everything we know about Kagan suggests that she is extremely judicious.  Indeed, it is just that judiciousness--her rather remarkable ability to keep her views on hot-button issues to herself--that concerns skeptics on both the right and the left.

Bottom Line: At least in Kagan's case, lack of judicial experience is a non-issue.

Tuesday, May 18, 2010

Federal Courts Exam

By Mike Dorf

Back in January, I posted the con law exam I gave to my 1Ls in the fall (here and here).  If you enjoyed those, have I got a treat for you!  Below is the exam I gave to my upperclass students in Federal Courts last week.  I won't be posting a model answer, nor will I be grading any proposals in the comments.  So have fun with this.

Question 1 (50 percent)

            You are an aide to Senate Majority Leader Harry Reid.  He has asked you to review the following bill, which he would like to introduce in Congress.

Only Natural Persons Have A Right Of Free Speech Act (“ONPHAROFSA”)

1.         No state, federal or other court in the United States shall have jurisdiction in any case to grant relief of any sort on the ground that any provision of state or federal law infringes the freedom of speech of a corporation or of a person or entity that is funded in whole or in part by general funds of any corporate treasury.

2.         No state, federal or other court in the United States shall have jurisdiction to entertain a challenge to any portion of this Act.

3.         In the event that a court invalidates Sections 1 and 2 of this Act, the following “Fallback A” shall become operative in their place:

Fallback A, Part 1: No court of the United States shall have jurisdiction to grant relief of any sort on the ground that any provision of state or federal law infringes the freedom of speech of a corporation or an entity that is funded in whole or in part by general funds of any corporate treasury.

Fallback A, Part 2: No court of the United States shall have jurisdiction to entertain a challenge to any portion of this Act.

4.         In the event that a court invalidates Sections 1, 2 and 3 of this Act, the following “Fallback B” shall become operative:

Fallback B, Part 1: The two most recently established seats on the Supreme Court are hereby abolished.  Their current occupants remain Article III judges and are assigned to the D.C. Circuit.

Fallback B, Part 2: The case of Citizens United v. Federal Election Comm’n, 130 S. Ct. 876 (2010) is restored to the appellate docket of the Supreme Court for re-argument.

5.         In the event that a court invalidates Sections 1, 2, 3 and 4 of this Act, the following “Fallback C” shall become operative:

Fallback C: Two new seats on the Supreme Court are hereby established.

            Please note in connection with Section 4, that the most recently created seats on the Supreme Court were established in 1863 and 1869.  They are currently occupied by Justices Scalia and Thomas, respectively.    Please write a memorandum to Senator Reid identifying and discussing potential constitutional infirmities in ONPHAROFSA.

Question 2 (25 percent)

            The text of ONPHAROFSA was leaked to Sue Lowden, a possible Republican challenger for Reid’s Senate seat, who is using it to portray Senator Reid as “hostile to business and a socialist.”   In a press release, Ms. Lowden declared that “this bill is obviously unconstitutional and if Senator Reid had any guts he would agree to test its constitutionality right now, rather than sandbagging hardworking Nevadans by making us wait until it goes into effect.”  Appearing as a guest on Sarah Palin Radio, Lowden then issued the following challenge to Senator Reid: “Gambling is legal in the great State of Nevada, so I say to Harry Reid, let’s make a bet on whether ONPHAROFSA is constitutional.  If it is, I’ll pay you $100.  If not, you pay me $100.  When you pay up, I’ll donate my winnings to charity.”  In a follow-up letter, the Lowden campaign proposed that immediately following the making of the bet, Lowden would sue Reid in federal district court in Nevada for a declaratory judgment that ONPHAROFSA is unconstitutional.

            Senator Reid believes that he has no choice but to make the bet.  However, he is hopeful that such a bet would not result in an actual adjudication.  He asks you for a memorandum evaluating the constitutional, statutory, prudential, and other obstacles, if any, to a federal district judge reaching the merits.  Assume for purposes of this question that Nevada law permits gambling on legal issues.

Question 3 (25 percent)

            Senator Reid has temporarily left Washington to campaign in Nevada.  During his absence, you have been assigned to work with Vermont Senator Bernie Sanders.  Senator Sanders would like to introduce a bill in the Senate, the International Law Restoration Act (“ILRA”).  Its provisions are as follows:

1.         10 U.S.C. § 948b(e) is hereby repealed.*

2.         Notwithstanding any other provision of law, the 1949 Geneva Conventions are hereby declared and/or rendered self-executing.

3.         In interpreting the 1949 Geneva Conventions, the courts of the United States shall treat decisions by the International Court of Justice as binding precedent.

            Senator Sanders asks you to write a memo addressing any constitutional or other legal obstacles to the effectuation of ILRA, should it gain passage.

Monday, May 17, 2010

Republicans Should Stick to Their Guns on Kagan

By Mike Dorf

Writing in Sunday’s NY Times, both Frank Rich and Maureen Dowd called attention to the fact that the social conservative line of attack against Elena Kagan is increasingly looking like a thinly veiled campaign of innuendo to the effect that Kagan is a lesbian.  As Dowd’s column (which takes the form of a parody of a recent email blast from Joe Biden) suggests, the right is being abetted in this endeavor by the adamant denials of the Administration and others.  (Memo to file: When seeking to defuse a political issue even remotely involving sex, do not enlist Eliot Spitzer as a character witness; if he offers to help, say he can be most useful talking about financial matters.)

To be clear, for broad public consumption, social conservatives have not been openly saying either that 1) Kagan is gay; or that if so, 2) that disqualifies her from serving on the Court.  Instead, the focus has nominally been on Kagan's constitutional views, especially regarding the Solomon Amendment and Don't Ask, Don't Tell.  Yet as Rich notes, as Harvard Law School dean, Kagan was not especially outspoken against the Solomon Amendment.  True, she signed the Harvard faculty amicus brief, but that didn't distinguish her from the following people now serving or who have recently served in the federal government: David Barron, Jody Freeman, Dan Meltzer, Larry Tribe, and Liz Warren.  David Shapiro also signed, and he served in the SG's office in the Reagan Administration.  It's hard to imagine that so much attention would be focused on the signing of this brief were one of these other people nominated.

Part of what's going on here may be a reaction to Kagan's frustratingly opaque paper trail.  For a constitutional scholar, Kagan has said remarkably little about the hot-button issues that typically exercise political activists come confirmation time: abortion, affirmative action, gay rights, etc.  Does that mean that Kagan has been cagey?  Not necessarily.  As a scholar, her early work focused on the First Amendment, about which we have something of a cross-ideological consensus.  After her stint in the Clinton Administration, her main scholarly interest was on the "structural" side of con law rather than the rights side, and then she became dean.  Accordingly, it may not be fair to say that Kagan was deliberately avoiding hot-button issues.  However, fair or not, one can get that impression from the topics not addressed in her writing.    After all, the L.A. Times had to cite a piece Kagan wrote for her college newspaper nearly 30 years ago to derive clues about her present views on abortion.  Accordingly, social conservatives may conclude, if she's being cagey about her views on constitutional law, perhaps she's being cagey about her sexual orientation as well.

Although I'm not in the habit of giving political advice to social conservatives, I'll take a crack at it here anyway: Drop this line.  Maybe, just maybe, you can get away with asking the following question during the confirmation hearing:
General Kagan, when you were here last year, you said, "There is no federal constitutional right to same-sex marriage."  How exactly did you mean that answer?  Did you mean it as a report of the existing case law?  Or did you mean that the Supreme Court should not recognize a new right to same-sex marriage?
But after Kagan gives the predictable non-answer answer (as anyone seeking to win confirmation would), the Republicans should drop the issue.  The more Kagan is asked about same-sex marriage and don't ask-don't-tell, the more Republicans risk appearing to be trying to out her.

Which brings me to the title of this post.  The hearings will occur in the aftermath of the Supreme Court's pending decision in McDonald v. Chicago, in which the Court will very likely find that the Second Amendment right to possess firearms limits states and localities, not just the federal government.  I did a WestLaw search of scholarly articles by Kagan that discuss the Second Amendment and came up with nothing.  Kagan only mentions it once--in discussing how then-Judge Ruth Bader Ginsburg avoided answering a question about the Second Amendment at her own confirmation hearing--but never discusses her own view of it.  When she was up for confirmation as SG, Kagan declined to say whether she agreed or disagreed with Heller, stating that as SG, her personal view of the matter would not be relevant.  If, as I expect, McDonald leaves open a range of questions about what sorts of state and local gun regulations are valid, Kagan could fruitfully be asked questions about how she might go about filling in those blanks.

Of course, Kagan will evade such questions with what she aptly described as a "pincer movement," (again, as would anyone who wanted to be confirmed).  But at least in asking questions about guns, her interlocutors will not out themselves as bigots.

Friday, May 14, 2010

Financial Protections, the Military, and Your Friendly Car Salesman

-- Posted by Neil H. Buchanan

An article in Wednesday's New York Times describes a provision in the Senate's financial overhaul bill that would apply new consumer protection regulations to auto dealers. Naturally, the dealers are not pleased. Just as naturally, given my public writings about the underhanded sales methods of car dealers (here, here, and here), I am quite encouraged. For the first time, it looks very likely that real consumer protections will be enacted to bring some sanity to the chaotic and high-stakes world of car sales.

The article describes some of the worst tactics that auto dealers use to cheat customers, including one that I had never heard of before: the "yo-yo deal." (I was actually surprised not to have heard of something so basic, because I once shared an apartment with a guy who worked as a new car salesman. His stories of how he was trained to cheat people were hair-raising. Even so, he quickly adopted the rationalization that "only stupid customers fall for our tactics, and they subsidize the smart customers." But I digress.) In the yo-yo deal, a person buys a car on credit, makes a down payment, and drives home. Later, the dealer calls and tells him that there is a problem, and he needs to return to the lot. On site, the sucker is told that the finance company has declined the loan, and he has to pay several thousand more dollars. If he refuses and tries to leave, he discovers that his car has been blocked in; and he either has to pay up or leave the car at the lot.

This is the kind of thing that can be exposed by enterprising reporters, of course, and the victim of the yo-yo deal in the Times's article had already settled for an undisclosed sum (which is itself a troubling detail, as was the 19.9% rate on the secured loan that he had originally signed). The dealership, meanwhile, claimed that it had done nothing wrong.

What makes the story especially interesting, however, is that the U.S. military has become involved in trying to combat the problem. The ugly fact is that the worst kinds of sales tactics are used against young, relatively uneducated, low-paid enlisted personnel in the U.S. armed services (including the victim in the Times's story). The Pentagon is so concerned about its personnel being victimized that it has contacted the U.S. Treasury to encourage it to do something about the scams. The military, quite sensibly, views such predatory tactics as likely to lower the morale of troops and thus to compromise military readiness.

As an interesting parallel, a Times business reporter, Diana B. Henriques, was a finalist for a Pulitzer Prize in 2005 for her coverage of the ways in which sleazy financial firms (payday lenders, etc.) were preying on U.S. military personnel. She revealed that even some drill sergeants and base commanders were being used by lenders to vouch for their services. This resulted in legislation, spear-headed by then-Sen. Hillary Clinton, to provide special legal protection for military personnel and their families against such exploitation. It was one of the best examples in recent years of how journalism actually matters, and how it can result in improvements in the public good.

Of course, payday lenders and their ilk are still free (loosely regulated in some states, entirely unregulated in others) to do their worst to low-income, poorly-educated victims who are not in the military. Extending the protections that are currently available to military personnel is, in fact, part of the proposed Consumer Financial Protection Agency's portfolio.

Happily, the proposed financial overhaul would impose the new regulations on all car dealers right away, not just those who deal with military personnel. Even so, the new regulations would have little chance of passing were it not for the military's intervention. For example, the House version of the bill did not extend the regulations to car dealers, whereas the Senate's did. The difference is that the Pentagon had not yet weighed in on the matter when the House approved its version of the bill late last year.

The Senate's version thus sets up yet another test of the political power of two heavyweights: car dealers versus the military. As last year's federal legislation requiring GM and Chrysler to arbitrate dealership closings demonstrated, dealers have more clout in Washington than automakers. (In turn, automakers have more clout than auto workers, whose contracts were torn up without a peep from the Beltway.) The question now is whether the local power politics of car dealers can outweigh the patriotic politics of "support the troops."

The power of the military in such matters should not be underestimated. One of the most important amicus briefs in the Grutter case (which unsuccessfully challenged the University of Michigan Law School's affirmative action policies), after all, came from retired military and political leaders who attested to the important impact that affirmative action can have on the quality of the armed forces. If such testimony can have such a potent impact on the U.S. Supreme Court, it will be interesting to see what impact it can have on elected representatives.

For their part, the auto dealers had better hope that they can win this one behind the scenes. They are a deeply unpopular group, and their defenses (at least as rehearsed in the article in the Times) are embarrassingly weak. It is predictable, I guess, that they are rolling out the old excuse that the problem is not the lack of laws, but enforcement. Dealers, of course, make strenuous efforts to reduce or eliminate enforcement of the few laws that are on the books. This specious defense is unlikely to sway anyone.

More interestingly, the chairman of the national auto dealers group is trying out what might be called the "hurt feelings defense." My former housemate used to tell me that, when caught in a lie, a salesman was supposed to look shocked and ask: "Are you saying I'm lying?" The idea, apparently, is for the most shameless people in the world to appeal to their victims' humanity. Similarly, the man who has risen to the top of heap among all car dealers argued: "We frankly find it offensive, this charge that auto lending has something to do with military readiness." He is offended, you see. The Pentagon must be wrong, because the nation's car dealers are offended. Case closed.

Thursday, May 13, 2010

Tough Justice?

In the lull between the nomination of and confirmation hearing for a new Supreme Court Justice, reporters need to find an angle. One such angle is how, if confirmed, Elena Kagan will become the fourth (more or less) native New Yorker on the Supreme Court, one from each borough, except for Staten Island: Scalia (Queens); Ginsburg (Brooklyn); Sotomayor (Bronx); and Kagan (Manhattan).  In seeking explanations for this curiosity, one popular story line is that New Yorkers are "tough."  I said just that in a story for Tuesday's edition of A.M. New York and so said Fordham Law Professor in a similar story in yesterday's N.Y. Times.  Here I want to explore just what such toughness might mean, and cast some doubt on this storyline (including my own contribution to it).

Let's begin with the question: Are New Yorkers tough?  Well, that depends in part on what we mean by toughness.  I think the core idea is that they don't back down from a confrontation.  This idea may be rooted in an inaccurate view of New York City as dangerous.  Yet of the 32 American cities with a population of half a million or more, NYC is the fourth safest.  To be sure, that's in terms of crime.  New Yorkers face other dangers, such as the risk of terrorism--although of the New Yorkers at issue, only Sotomayor lived in NYC during and after 9/11.

Perhaps the toughness notion comes from the fact that New York is crowded: In order to preserve a sense of personal security and even identity, New Yorkers must push and shove, this line of reasoning would go.  Maybe, but crowdedness can also produce a culture of extreme politeness, as Tokyo illustrates.  New Yorkers are often said to be rude, and surely some are, but in my experience this is mostly a stereotype.  When I lived in Manhattan (for 13 years), I was repeatedly told by tourists how surprised they were to find that the natives were very friendly.  I'll admit that New Yorkers have a certain impatience about them--always in a hurry--but that's not exactly toughness.

In any event, let's concede that the broad stereotype has something to it.  Other things being equal, Midwesterners  and Southerners are more polite and patient than New Yorkers or than East Coasters in general.  (More on Westerners in a moment.)  But does that translate into the sort of "mental toughness" to which Flaherty and I alluded in the newspaper articles?  Is someone raised in New York more likely to be able to dissect an advocate's weak argument or to stand up to pressure from a judicial colleague trying to garner her vote on an important case?  And is the particular form of toughness we ascribe to New Yorkers especially desirable in a Supreme Court Justice?

In the last few weeks, I've noted that several news stories have commented on the charming habit of Justice Stevens of beginning his queries to lawyers appearing before the Court with the polite "May I ask you a question?".  No one thinks for a moment that this decidedly non-New-Yorkish habit made Justice Stevens some sort of wimp.  Far from it.  He is the only military veteran on the current Court and, at 90, a regular tennis player and golfer.  Or consider the late Harry Blackmun, a Minnesotan through and through, and thus the essence of politeness.  Surely he needed to be tough to continue his work steadfastly despite the numerous death threats he received after authoring Roe v. Wade.  Or, if we're considering origins as a basis for toughness, perhaps Sandra Day O'Connor's and William O. Douglas's youth in the Wild West should count to a greater degree than an exclusive high school in Manhattan.  O'Connor and Douglas each thought the West a significant contributing factor to their respective outlooks.

Finally, the "toughness" trope is at odds with another commonly voiced view: that Kagan was effective as Harvard Law Dean because she was a good listener and a conciliator who reached out across ideological divides.  According to this account, Kagan is much like Obama himself.  Of course, Obama has been singularly unsuccessful in getting Republicans to go along with his agenda, so for this approach to work here, one has to assume that the dynamics on the Court are quite different from those in Congress.  But whether Kagan proves able to build coalitions on the Court or not, my point is simply that "toughness" does not seem like the sort of quality likely to be most helpful to her in the effort.

Wednesday, May 12, 2010

Milk and Marriage: Substitutability of Products and Ideas

My FindLaw column this week discusses a petition that the NMPF (National Milk Producers Federation) filed with the FDA, asking the latter to make producers of nondairy food stop using words like "milk," "ice-cream," "cheese," "yogurt," and "sour cream" to label their products.  As I explain, the FDA has issued regulations that affirm the NMPF's approach to the "dairy" words, defining milk as lacteal secretions from a cow.  My column assesses the merits of the claim that it is nondairy producers who are misleading consumers about their products.

In this post, I want to use the non-dairy milk debate as a lens through which to consider the more general idea of substitutability.  Specifically, when do people consider it accurate and fair to say that one product, idea, or practice is meaningfully equivalent to another?


Milk and dairy products are actually a paradoxical example of the substitutability phenomenon.  On the one hand is the morality of consuming them.  In the eyes of dairy producers, milk is a food product that serves to provide nourishment and bring consumers culinary pleasure.  In that sense, its producers would like us to regard milk as no different from any other food product -- including plant-based items such as rice, beans, cashews, bananas, tofu, and coconut-based ice-creams.  In the eyes of those who oppose cruelty to animals, by contrast, dairy milk and its derivatives are very different from plant-based foods, because they are products created by impregnating cows (to induce lactation) and then by, after birth, removing calves from their mothers (as the cows bellow and scream for days) so that humans can feed on the milk, while the babies themselves become veal (if male and, often, if female) or themselves become mothers who will lose their babies every year.  In addition, for those who oppose animal cruelty, consuming dairy is unacceptable because it supports the slaughter of dairy cows once they are "spent" (i.e., no longer productive of enough dairy milk to satisfy human demand).  On every farm, dairy cows suffer and are eventually sent to slaughter.  No matter how similar the flavor, then, there is all the moral difference in the world between consuming the milk of a dairy cow and consuming soy milk, almond milk, or another plant-based alternative.

On the other hand is the flavor and nutrition available in the animal-based versus plant-based milks.  Here it is the dairy producers (the human ones, that is) who decry the suggestion that almond milk might be comparable to the lacteal secretions of a cow, in terms of flavor or nutritional value.  Here, the NMPF (as a representative of dairy producers) would like people to think of these products as entirely un-substitutable and object to the use of terms (and refrigerator space) that might "mislead" consumers into viewing non-dairy milks and ice-creams as proper substitutes for their dairy analogues.  From the perspective of those who value cows as beings who deserve to be free of harm and slaughter, by contrast, the notion that one may substitute almond milk or hazelnut milk or soy milk, etc., for dairy is quite attractive and not at all threatening.  Indeed, as my column elaborates, the non-dairy versions of dairy products offer people the opportunity to enjoy familiar experiences without taking on the increased risk of cancer, heart disease, and diabetes associated with animal protein in general and dairy protein in particular, even apart from the cruelty to animals entailed in all of animal agriculture.


A second area in which the question of substitutability arises is that of marriage between people who have historically been barred from marrying each other.  I focus here on same-sex marriage, although similar controversies surrounded interracial marriage.  While there are still those who believe that the law may and ought to prohibit people from having same-sex sexual relationships, much of the current debate -- particularly after the decision in Lawrence v. Texas -- is about whether two people of the same sex ought to be permitted to marry each other.  President Obama has said that "I'm a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman."  In his view, then, and that of many others, marriage is by definition a relationship between a man and a woman.  Like the NMPF with respect to non-dairy alternatives to bovine lacteal secretions, such opponents of gay marriage do not argue that alternatives should be legally prohibited, but simply that they should not be permitted to have the label "marriage."

The arguments about gay marriage, moreover, are strikingly similar to those within the dairy/non-dairy milk labeling context (though with less of the paradox discussed earlier).  The federal "Defense of Marriage Act" is, in its very title, premised on the assumption that the quality of the marriage product, when utilized in the traditional manner by opposite sex couples, will be diluted and undermined by its availability to same sex couples.  Part of how opponents of same-sex marriage conceive of marriage, then, is as an institution that is essentially and inherently limited to same-sex couples, just as the NMPF (as enabled by the FDA) conceives of "milk" as a product that is essentially and inherently comprised of lacteal secretions.

Another interesting parallel between the substitutability issue in milks and in marriage is the fact that consumers of both non-dairy milks and same-sex marriage are not interested in consuming the dairy/heterosexual analogues of what they seek.  Like a vegan who would avoid purchasing a product whose label confusingly suggested that it contained lacteal secretions, a gay man or a lesbian would be uninterested in entering a marriage union that included a partner of the opposite sex.  Soy milk serves as a functional equivalent of dairy milk, even as the latter is unappealing to vegans, just as marriage between same-sex couples serves as a functional equivalent of opposite-sex marriage, even as gay people have no interest in entering opposite-sex marriage unions (and therefore rightly reject the availability of opposite-sex marriage to everyone, gay and straight alike, as providing them with equal access to marriage).


In the case of both non-dairy milk and same-sex marriage, more is implicated than mere semantics.  Those who support access to non-dairy milk products level moral criticism at the consumption of nonhuman lacteal secretions as participation in the cruel and inhumane treatment of sentient animals.  The notion that only those who traffic in such cruelty may use the word "milk" is offensive to many vegans.  Indeed, vegans hope some day to abolish the infliction of suffering and death on nonhumans, such that only babies will consume lacteal secretions, and the secretions will be those of the babies' mothers, lovingly given rather than taken through violence.

Similarly, supporters of same-sex marriage find offensive and ugly the desire to discriminate against gay couples by denying them the label that society associates with permanent, loving relationships in which participants care for one another, sexually, financially, and emotionally, in a setting that the law supports and nurtures.  Similarly as well, many gay people -- even as they press for equal marriage rights -- find the institution of marriage largely one of exclusion, discrimination, and oppression.  It is an institution that implicitly embraces, for example, the notion -- ably developed by Martha Fineman in The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies, that sexually-involved couples provide the most (or the only) suitable venue in which to raise children and thus diminishes alternative families in which either single individuals or extended kinship networks not defined by sexuality take care of the dependencies that inevitably arise in people's lives, due to infancy, illness, disability, and aging.

I cannot, of course, discuss the moral content of same-sex marriage debates without mentioning the fact that many opponents of same-sex marriage believe that gay relationships are either wrong (because they are sinful as a religious matter) or morally inferior to their heterosexual analogues and thus undeserving of the same label, "marriage."  I mention this moral objection second rather than first, however, because it is easy to forget -- in the culture's single-minded focus on religion as the source and meaning of all morality -- that discrimination is a moral wrong and equality a moral aspiration.  While people may point to verses in the Bible/Old Testament to argue that same-sex couplings are immoral, there is little to ground the contention that these verses reflect moral truth (any more than do, for example, the verses encouraging slavery, wars of conquest, or the killing of innocent civilians, including children, after battle).  The notion that loving relationships among same-sex couples are morally wrong or undeserving of equal status and nomenclature is therefore an ipse dixit (and a pernicious one, at that) hardly worthy of the label "moral argument."


Suggesting equivalences is, of course, always a tricky business.  Almost by definition, when we compare one thing to another,the two things are going to be different in some ways, alike in others.  But comparison and analogy is how we think and how we grow.  We take an idea that is comfortable and known and learn that it has application beyond the familiar.

Only four years ago, I thought that cheese and dairy were irreplaceable products.  It turns out I was wrong, and the use of "milk," "cheese," and other conventionally dairy words on non-dairy food labels helped me to find out easily how wrong I was.  Only twenty-four years ago, the U.S. Supreme Court upheld a criminal law providing for incarceration as a punishment for same-sex intimacy.  Since then, our society has grown more empathic and just on questions of sexual orientation and equality.

We ought now to recognize that the commitment and seriousness of marriage does not rest on the respective sexes of the parties; the notion that it does simply reflects what we are used to seeing, just as so many of us are used to consuming bovine lacteal secretions without thinking about the harm we support in doing so or the reality that such food is not at all necessary to a pleasurable and fulfilling life.  In the spirit of compassion and empathy, we must resist the familiarity of injustice and turn words that once meant cruelty and discrimination into words that mean respect and decency toward our fellow beings in the world, human and nonhuman alike.