Tuesday, August 31, 2010

Wealth Tax

By Mike Dorf

The recent Jane Mayer expose on the billionaire Koch brothers has been understandably garnering considerable attention. Mayer documents the extent to which said brothers have been bankrolling the Tea Party movement to advance both their economic libertarian ideology and  their business interests.  The article is a useful antidote to the view that the only serious threat to democracy from concentrated wealth derives from corporations.  That view, fostered by the Citizens United case, misapprehends the real problem: concentrated wealth itself.  Corporations are merely one vehicle for aggregating enormous wealth.

Thus, anyone concerned about our political economy ought to be no less concerned about giant pools of money in the hands of natural persons than in the hands of corporations.  Indeed, the former is arguably a greater threat; diffuse corporate ownership makes it less likely that corporate treasury funds will be used to fund an idiosyncratic political agenda than will the funds of an individual.

Here I'd like to suggest a politically infeasible response, mostly to explore what constitutional reaction it would trigger.  The response I have in mind is a wealth tax, the goal of which would be to reduce individual fortunes. The core idea would be to forbid fortunes from growing so large as to permit anyone to use that fortune to rig the political system in his or her interests.  I'm not sure what the largest permissible fortune ought to be, atlhough something on the order of $10-20 million strikes me as plenty high enough.

Now a few thoughts:

1) Yes, I get that this is a non-starter politically.  But at the same time, if the right is going to label even tepid regulatory measures as "socialist," there's really no political harm in enacting actual socialist programs.

2) A wealth tax of the sort described would make the NBA salary cap unnecessary.  Let's go Knicks!

3) A federal wealth tax could well be unconstitutional as a "direct tax" that is not apportioned by state, although it is not clear whether current Supreme Court doctrine is as restrictive of such direct taxes as the old jurisprudence per Pollock v. Farmers' Loan & Trust Co..

4) Even assuming a federal  wealth tax would not run afoul of the apportionment requirement, I worry that the Court that gave us Citizens United might strike it down as a violation of the First Amendment.  After all, a law that does not facially discriminate on the basis of content or speaker can nonetheless be invalidated as content-based or speaker-based if it is motivated by content-based or speaker-based concerns.  More broadly, I worry that in the future, other facially content-neutral and speaker-neutral measures adopted for the purpose of curbing the distorting influence of money on politics could be struck down on the grounds that they discriminate against the views of the rich.  I would hope to be proven wrong, but one never knows.

5) Perhaps the strongest policy argument against a federal wealth tax is that it would drive capital to other countries.  Assuming we could get solid information on overseas accounts, super-rich Americans seeking to avoid payment of the wealth tax could still do so simply by becoming citizens of countries that do not have a wealth tax or, for that matter, an income tax, rubbing elbows with tennis greats on the streets of Monte Carlo.  But even that would have an upside, as the First Amendment may tolerate greater limits on the political speech of foreigners than of U.S. citizens.

Monday, August 30, 2010

Is Genetically Engineering Animals to Feel No Pain a Moral Solution?

By Ori J. Herstein

An interesting article and a New York Times op-ed piece argue for genetically engineering livestock so as to lower their capacity to experience pain as a partial solution to the moral repugnancy of the mainstream animal-product industry. Shriver (the author), who explains the science much better than I ever could, defends this position on utilitarian grounds. In a nutshell, considering the bleak realities of the animal-product industry and the fact that people are not likely to stop consuming animal-products any time soon, and considering that we are under a moral obligation to reduce the pain in the world, genetically engineering animals to experience less pain is a morally desirable course of action. While problematic for various reasons, I think this proposal does have some appeal: pain is bad, and a world with less pain would be, all other things being equal, better.

But of course things are rarely equal. Shriver does attempt to answer several possible criticisms to his position: reducing animal’s capacity to experience pain would cause them to injure themselves more; as a tactical matter, there is a problem for the animal liberation movement to concede that humanity will not soon turn towards veganism; arguments from animal rights; and, objections to genetically modifying food. Some of Shriver’s formulations of the objections to his position are better than others, as are his responses.

My challenge (which perhaps on a higher level of abstraction demonstrates a qualm about utilitarianism in general) to Shriver’s proposal questions the logic of his argument as a moral argument. What makes someone into a moral patient – i.e., someone who is of moral considerability – is manifesting certain morally significant attributes. For example, people’s capacity to reason enables them to act for reasons, thereby making people into autonomous beings not subject to their passions and urges. And autonomy is something worthy of respect. At least one main feature of animals that bestows on them moral considerability is their capacity to feel pain and pleasure. Because animals have such a capacity we have a prima facie reason not to cause animals pain.

Significantly reducing animals’ capacity to experience pain would essentially remove some of the attributes that bestow on them moral considerability. Shriver’s solution does not, therefore, solve the moral problem of animal suffering but rather dissolves it by transforming animals into creature that are no longer of moral considerability (in the relevant sense). It is an approach that - to an extent, taking certain liberties, and perhaps not being fully charitable – shares a similar logic with the following proposal: solving entrenched subjugation, enslavement, and deep disrespect for the autonomy of members of minority-group M at the hands of majority-group R by lobotomizing all Ms, or more accurately by genetically engineering all Ms to beget (effectively) lobotomized children.

Friday, August 27, 2010

Can a Dysfunctional Congress Tame Its Own Dysfunction?

-- Posted by Neil H. Buchanan

I was not planning to write my FindLaw column this week about my proposal for a "Growth Budgeting Board," which I described in a recent scholarly paper and in my Dorf on Law post earlier this week. However, House Republican leader John Boehner gave a speech earlier this week that, I thought, directly implicated my arguments. Of course, it is also possible that I now have a one-track mind, and that I have become a hammer that sees nails everywhere I look. In any event, I felt that Boehner made an argument that demanded comment.

Boehner included the following suggestion in his speech: "I think we should go through every line item in the budget and ask ourselves if the spending is so important we are going to ask our kids and grandkids to pay for it. And if [it] doesn’t meet that test, then why in the hell are we doing it[?]" I sincerely doubt that Boehner meant his comment as anything other than yet another way to say that government spending is bad, as well as yet another opportunity to trot out the kids and grandkids as political props. All of Boehner's public statements that I have heard suggest that he simply does not believe that there are any government spending programs that should be financed by future generations. In other words, there would be exactly zero projects that would meet his proposed test.

Even so, in my column I try to take seriously the suggestion expressed in the speech: that it would be a good idea to go through the federal budget and separate the items that have long-term positive effects on the economy (such as funding for basic research, transportation systems, education at all levels, and so on) from those that do not. That is, in fact, the basic notion behind capital budgeting, as well as the raison d'etre for my proposed Growth Budgeting Board.

Here, I want to explore a different aspect of my proposal. The underlying issue motivating capital budgeting is one of economics -- allowing the federal government to use deficit spending to finance projects that will improve living standards in the long-run. Even so, the real problem is not in the economics or accounting -- which are absolutely standard-issue stuff -- but in a failed legislative process. No Congress has ever explicitly or implicitly imposed a capital budgeting system on itself internally, nor has any Congress ever allowed its hands to be tied by external administrative rules that would force it to adopt and adhere to capital budgeting methods. Why should now be any different?

One possibility is that Members of Congress, in their hearts, really hate the way things are currently done, but they understand that the political process represents a group action problem, forcing them and their colleagues to demagogue issues in a way that makes them feel secretly ashamed. I strongly suspect, for example, that the Senate Majority leader, Harry Reid, feels that way about the Islamic cultural center controversy right about now. In the current environment, moreover, you have all but twelve House Republicans voting against assistance payments to 9/11 first responders, in the pursuit of some perverse kind of political advantage. This has to stick in some people's throats.

The parties do, moreover, accept certain limits on their power. The staff of the Joint Committee on Taxation, for example, "scores" all tax bills to determine the official cost of any tax cut (or the official revenue increase that might result from that increasingly rare breed, the tax increase). Republicans often complain loudly about the methods used by JCT to produce the estimates, but they live by them all the same. This suggests that procedures can, in fact, discipline the worst impulses of politicians.

The gold standard of such procedures, of course, is the method used (in the late 80's, if I recall correctly) to close military bases. There, Congress set rules to have an expert commission determine which military bases would be closed for cost-cutting reasons. When the commission submitted its list, Congress could only vote up or down on the whole package. There were some efforts to break those rules before the final vote, such as Arlen Specter's special pleading for a base in Pennsylvania. Such efforts were entirely predictable. Even so, Congress set up the rules in advance, and it adhered to those rules when the time came -- notwithstanding its power to simply change its mind ex post about the whole process.

(I should add that the real "gold standard" by which Congress created an independent agency to discipline its worst instincts is the Federal Reserve. Pun intended. Senators and Members of Congress love making speeches against the Fed, but they do not dismantle it.)

It is possible, however, that the current political atmosphere is so toxic that nothing new can be done. Not only can nothing be done, but perhaps nothing can be done about nothing being done. The only hope might be that both parties could see an advantage in tying the other party's hands. If a well-run agency could actually be counted on to say that Project X is not a long-run winner, then a politician who opposes Project X would welcome such an agency. More cynically, both parties could imagine that they can capture the new agency, using it to issue proclamations favorable to one's political allies.

Naturally, I do not think that it is a good idea to create an agency that will become an object to be captured. Fortunately, this does not seem likely (and, in any case, is not inevitable). Even in the hyper-politicized Bush years, for example, the Congressional Budget Office maintained its independence from political influence, with a Republican director issuing reports that were inhospitable to his party. (Moreover, this is a person whose work since leaving that office has suggested that he is very much a political animal.) It is, in short, possible to create a watchdog agency that works well.

Having said all that, I do not expect anything like my agency to be adopted. The all-too-easy attack line is that it would "justify deficits." And it would. As it should.

Thursday, August 26, 2010

Competitive Federalism

By Mike Dorf

As a resident of New York State, I was pleased to see that the Empire State was among the winners of Round 2 of the "Race to the Top" for education grants from the federal government.  Yet there is something about the design of the contest that I find unsettling, even unseemly.

I am not complaining about the specifics of the contest.  The federal Dept of Education under Arne Duncan has more or less continued the general embrace of standards-based education reform begun under President Bush.  One can legitimately quibble with the way that policy has been pursued: Too great an emphasis on standardized tests; tying the fate of teachers, administrators, and whole schools to student performance in a way that may well demoralize educators and lead to perverse consequences; and insufficient recognition of the variation in local circumstances in designing systems of accountability (as decried here). Despite all of these worries, I am still broadly sympathetic to the standards-based school reform movement, which falls within the family of "new governance" approaches that I and others have sometimes called "democratic experimentalism."

My more particular misgivings about the Race to the Top concern the competitive nature of the enterprise.  In most programs of cooperative federalism, the federal government offers states money or some degree of regulatory autonomy in exchange for the states' agreement to abide by federal standards.  States can choose whether to accept the federal funds or, in the case of conditional pre-emption, whether to regulate pursuant to federal law, and if they do, they agree to be bound by the federal standards.  To be sure, given how large the sums of money can be, states often have little choice but to accept, and as a consequence, cooperative federalism can be somewhat coercive.  But at least in principle, each state decides how much autonomy to sacrifice to the feds.

By contrast, under the Race to the Top approach, even states that agree to be bound by the federal standard may not end up being funded if they do not come forward with proposals that are as attractive to the feds as those proffered by their sister states.  I call this "competitive federalism" because it pits states against one another in a competition to see which ones can come closest to the federal agenda.  And I think it's unseemly from the perspective of federalism insofar as it treats states as groveling suitors for the federal dollars.

Now I'll concede that in one respect, Race to the Top is simply a more honest, more transparent version of a phenomenon that happens in Washington all the time.  Whenever Congress is deciding whether to initiate or renew a civilian or military program or open or shut a military base, states and districts within states fight one another for the largest pieces of the pie--and the jobs that go with it.  Those fights occur within Congress and are fundamentally political.  By contrast, at least the criteria for Race to the Top are substantive and public.  So, one could say that an allocation device like Race to the Top is a substantial improvement over business as usual.

Yet in another sense, by making the interstate competition explicit, Race to the Top more explicitly and more publicly advertises that the states are in fact competing with one another to see which can do the best job of dancing to the federal tune.   I would not say that this or any other aspect of the Race to the Top procedure renders it unconstitutional, but I would think that the people (including some SCOTUS Justices) who care about the "dignity" of the states might be upset by the expressly competitive nature of Race to the Top.

Wednesday, August 25, 2010

Do Non-Vegans Dream of Electric Puppies?

By Sherry F. Colb

Every year for the past decade, Cornell University has run a New Student Reading Project.  The Project involves choosing a book for the incoming undergraduate class and Cornell community to read over the summer.  The Greater Ithaca community also participates, with support from the Tompkins County Public Library.  Then, when Fall arrives, faculty from different departments present lectures and facilitate small-group discussions of the book.

This year, Cornell selected the Philip K. Dick novel, Do Androids Dream of Electric Sheep?, on which the Ridley Scott movie, Blade Runner, is (quite loosely) based.  This year, Michael Dorf and I decided to participate in the Project and serve as faculty facilitators for one of the small groups of freshmen discussing the book.  Our discussion – which took place on Monday – was quite interesting and gave students an opportunity to enjoy a seminar-like exchange with one another on a familiar topic.  Because Michael and I were very nondirective in our role as facilitators, however, the discussion ended up mostly neglecting what I view as perhaps the most salient theme in the book.  I thought I'd take this opportunity to elaborate on it.

Androids is a brilliant science fiction treatment of a variety of philosophical questions, including the following:  What quality or capacity makes human beings distinctively human?  The book is set in Post-Apocalyptic California, where few people continue to live, most having left Planet Earth to colonize Mars.  All of the humans still living on Earth (because of their jobs or because of physical or mental deterioration that disqualifies them from emigrating) belongs to a religion called Mercerism, dedicated to empathy and compassion. 

To tempt people to leave Earth for Mars, the government has provided free android slaves (marketed with references to the pre-civil-War plantation South) to each emigrant.  Androids are extremely convincing replicas of humans, and they feel pain and emotion much in the way that humans do, with one exception:  androids do not experience empathy, for other androids, for humans, or for nonhuman animals.

Some androids, unhappy with their slave status on Mars, have killed their human masters there and escaped to Earth.  Unwelcome on this planet, the androids are treated as illegal aliens, whom the government hires bounty hunters, including the novel's protagonist, Rick Deckard to “retire” (i.e., kill).  The bounty hunter faces a challenge, however, each time he wishes to retire an android.  He must make sure that his target is truly an android, as it is a crime to kill a human being (or, indeed, a nonhuman animal). 

To meet this challenge, Rick administers the “Voigt Kampff" Empathy test before retiring anyone.  The test – involving a sort of polygraph machine – measures the target’s emotional and physiological responses to hearing the bounty hunter describe “a morally shocking stimulus.”  If the subject experiences a “’shame’ or ‘blushing’ reaction” within a short enough time, then Rick knows he is dealing with a human; if not, he has an android, whom he can then proceed to “retire.”

These are some of the scenarios in the test:  (1) “You are given a calf-skin wallet on your birthday”;  (2) “In a magazine, you come across a … picture of a nude girl … lying facedown on a large and beautiful bearskin rug”;  (3) You are reading a novel from before the war, and one of the characters at a restaurant “orders lobster, and the chef drops the lobster into the tub of boiling water while the characters watch”; (4) “You rent a mountain cabin … and above the fireplace a deer’s head has been mounted, a full stag with developed horns”; And (5) You watch an old movie in which people attend a banquet where “[t]he entrĂ©e consists of boiled dog, stuffed with rice.”

Quite strikingly, each of these scenarios involves a person consuming the products of animal suffering and slaughter.  With the exception of the lobster, moreover, none of the people involved in the scenes is directly inflicting the suffering.  What distinguishes androids from real humans, in other words, is the experience of apathy rather than empathy when confronting a scene in which animals have been killed and commodified for human consumption.

Though the human society of Androids has ostensibly embraced an ethic of ahimsa – or nonviolence – toward animals, it continues to practice pet ownership.  A catalogue listing prices for various animals (many of them endangered, most extinct and therefore only theoretically available for a price) is circulated regularly, and humans on earth express their “empathy” by purchasing one of the caged animals, taking care of him or her, and keeping the animal on display for the neighbors.  Because many people cannot afford the price of a real animal, a business providing fake animals develops, although the fake animals appear not to have real feelings, so they are not truly a nonhuman analogue to the androids. 

Just as human bounty hunters kill androids (in a striking failure of empathy, the capacity that supposedly distinguishes them from their quarry), the humans in Androids generally support commodification and captivity for the animals who remain on Earth, by purchasing them as empathy commodities.  This seems most naturally analogous to the contemporary practice of buying cats and dogs (and other animals) who have been bred in captivity for sale, either from breeders or from pet stores.  People purchase their empathy commodities, for whom they often feel genuine affection, and thereby support the cruel practices by which the animals are bred and made available, including the repeated anguish visited on mother dogs and cats whose babies are all taken away from them for sale, just as people purchase beef, pork, dairy, and eggs, and thereby support the torture and slaughter of billions of animals morally indistinguishable from our more favored empathy commodities.  None of these purchases is necessary, and all contribute to immeasurable suffering.

A question that arose for both me and Michael when we were facilitating the undergraduates’ discussion of Androids is why most people who read the book do not seem to notice the vegan/animal rights messages.  Most (especially faculty) seem to want to focus almost exclusively on the commentary about technology, machines, the singularity, and the line between authentic (humans, animals, moods) and artificial.  The only animal-related lecture presented this week appeared to be about fake pets rather than about the moral questions Dick poses about the consumption of animal products.

Michael articulated an interesting theory of why this is so.  Like fantasy fiction in totalitarian regimes, written allegorically to avoid alerting the censors to a subversive message, science fiction in relatively free societies must elude the internal censors that we all have.  By situating Androids in a post-apocalyptic world, Dick makes it possible for us to be critical of the androids for failing to feel empathy for animals, even as we miss the fact that it is we who are failing to live up to our distinguishing feature in this regard, in the real world.  Sadly, however, since no one at Cornell appears to be talking about the animal rights themes of Androids, Dick’s message about the consumption of animals – however clear and straightforward – has failed to get by the internal censors here.  I hope that this post will serve as a corrective for that sad (and likely unintended) success of our internal censors.

Tuesday, August 24, 2010

Is the Right Answers Thesis Superfluous?

By Mike Dorf

In my latest FindLaw column, I revisit a theme I explore roughly once every five years: Advice to new law students about what to expect in law school.  (The column provides links to the earlier essays.)  Here I want to ask whether one of the points I make in the new column contradicts one of the leading theoretical accounts of law.  (My answer: Maybe, but so what?)

In the column, I claim that law teachers ask more or less two kinds of questions: 1) Questions to which the law provides a clear answer (e.g., Absent a confession, how many witnesses does the Constitution require to testify to support a treason conviction?  Answer: Two); and 2) Questions to which the legal materials do not provide a determinate answer (e.g., Does California's Proposition 8 violate the federal Constitution?  Answer: We won't know definitively until the Supreme Court rules on the matter.)

This way of framing things is broadly consistent with how legal positivists think about law.  They say that where the law has gaps and ambiguities, judges have discretion to choose from a range of plausible answers, although once an authoritative court has given an answer, the law is clear (unless and until some actor with the power to change it does so).

However, for over 40 years, Ronald Dworkin and various of his followers have been attacking the positivist view.  Dworkin argues that there are unique right answers, even in hard cases (the "right answers thesis"), and notes, among other things, that lawyers and judges certainly do not talk as though the judges are merely exercising discretion in hard cases.  For example, when Judge Walker held that Prop 8 violates the Constitution, he gave reasons why the pre-existing legal materials compel that result.  The 9th Circuit will likewise write an opinion either affirming or reversing based on a reading of the case law and other materials.  And so will the Supreme Court, if it takes the case.  No judge will say anything like "I have discretion to decide whether Prop 8 is unconstitutional, and I exercise it in thus and such a manner."

Positivists in turn respond that Dworkin is taking judicial rhetoric too seriously.  Although positivists generally reject the thoroughgoing legal realist position that says that law is thoroughly indeterminate, they acknowledge indeterminacy at the margin.  The rhetoric of right answers, the positivists say, is basically a means of legitimation for courts exercising countermajoritarian power in constitutional cases.  (Dworkinians and positivists have the same fight even in sub-constitutional cases, but the stakes are higher in constitutional ones, so I focus on them here.)

I'm not especially interested in refereeing the dispute between Dworkin and the positivists, but I do want to raise the question of whether my column slights the Dworkinian position by simply asserting the proposition that the law contains gaps and ambiguities, without noting the Dworkinian alternative.  In response to this objection, I'll offer two defenses.

The first is situational.  In an essay aimed at beginning and prospective law students, introducing a central debate in jurisprudence would have been tangential and confusing.

My second defense cuts deeper.  I want to say, albeit tentatively, that the right answers thesis is a distraction even for sophisticates.  It offers a metaphysical claim--there really are right answers to hard legal questions--in answer to a practical question: How does law function?  Dworkin is correct that judges write opinions as though they believe that they are discovering answers in legal materials rather than simply filling gaps and resolving ambiguities.  And the positivist's legal realist rejoinder that this is only so much rhetorical cover strikes me as too fast; many judges actually do believe that they are discovering right answers.  That belief itself probably plays an important role in shaping and constraining what the positivist believes is the judges' discretion.

But nothing in this debate seems to turn on whether the really are right answers (in REALITY AS IT REALLY IS, as Richard Rorty might say).  The important points for understanding how law functions seem to be these: 1) The law is often indeterminate in the sense that a well-informed observer will have difficulty predicting the outcome of a hard case using the conventional legal materials; 2) When judges decide hard cases, they justify their decisions in opinions that speak as though they really believe that the answer was determined by the legal materials; 3) Many such judges probably do believe that their answers are determined by the legal materials; even though 4) Judges frequently disagree with one another about how to resolve hard cases.

I suppose that if Dworkin's right-answers thesis could somehow definitively be shown to be false, that could be important, because it might change 2) and/or 3).  But it's not at all clear to me that a demonstration of the truth of the right-answers thesis would have any implications for either how we understand law or how judges should decide cases.  Dworkin himself seems to realize this.  He sometimes acknowledges that it is possible for a judge to practice his brand of coherentism (what he calls "law as integrity") but to reach very different substantive outcomes.  That's because the "glue" in Dworkin's version of coherentism consists of principles of political morality.

Now it happens that Dworkin, as a moral realist, also thinks there are right answers to moral questions, even though people disagree about what they are.  But the fact of profound moral disagreement means that the right-answers thesis has no practical bite. From what H.L.A. Hart (the leading positivist) called the "external" perspective, courts will appear to be filling genuine gaps and ambiguities through the exercise of discretion, even though from the perspective of each individual judge, the judicial task will consist in trying to figure out the right answer.  This explains why Hart was able to say in the posthumously published Postscript to his The Concept of Law that Dworkin's theory was mostly compatible with his own.

Does all of this mean that the right-answers thesis is wrong?  Hardly.  I tend to think that there is something very important going on in Dworkin's observation that judges understand what they are doing as searching for correct answers, not just exercising discretion.  But it's important for the internal perspective, not the external perspective.

Monday, August 23, 2010

Good Deficits ...

-- Posted by Neil H. Buchanan

I recently completed a draft of a new article for law review submission: "Good Deficits: Protecting the Public Interest from Deficit Hysteria" (abstract and full text available here). Regular readers of this blog will not be surprised to learn that the article presents an extended argument against the idea that budget deficits are all bad, all the time. Looking back on how the article reached its present form, however, I am struck once again by the level of insanity that we have reached in the current U.S. policy debate.

As originally planned, the article was going to focus only on the value of deficits in the long-run: deficits that are run every year in perpetuity, to finance public investments in things like infrastructure, education at all levels, technology, pure research, preventive medicine, early childhood nutrition, and so on. Because the economic theory behind this idea is relatively unknown (but actually uncontroversial, among economists who study these things), my original idea for the article was to spend a great deal of time explaining how it is possible for a government investment program to improve long-run living standards, even if it is financed through deficit spending. This involves comparing a government investment project to what it would replace: if it replaces private consumption, then future living standards are definitely improved by the government's investment; and if it replaces private investment, then future living standards are improved if (and only if) the government investment project is more productive than the private investment project that it replaces.

Again, what is notable is how uncontroversial and non-tendentious this claim is, as an analytical matter. I do not bring into the discussion any of the theoretical debates about the "crowding out" thesis: I simply accept as a given that the economy in the long run will trend around full employment (surely a contestable assumption) and that there is a one-to-one trade-off between a dollar spent on government projects and a dollar spent on private projects. The argument is therefore not about whether there is a flaw in accepted macroeconomic theory. (There are many, but that is not the point here.) Just as important, however, the argument is not a variation on a familiar theme in the legal literature, that there is a cool-but-unappreciated economic theory out there that should be imported into the legal literature.

Instead, the larger point is that the American political process has failed to take into account the possibility that government spending can take the form of investment rather than consumption (or, as many would suggest, pure waste). Even if one accepts the most plain vanilla macroeconomic theory, in other words, our policy structures are set up in a way that systematically undervalues public investment -- which means, of course, that we systematically under-invest in public goods.

My original idea in writing the paper, therefore, had been to describe this simple (but largely unknown) concept, to describe why the policy regime in the U.S. has never been changed to take it into account, and to suggest a legal/administrative solution that would force information about public investments into the policy-making process. This would involve discussing not just the theory, but also describing some examples of public investments and their estimated rates of return (pre-school education having, for example, an estimated internal rate of return of 16%), and then describing my proposed administrative solution, which would separate government investment from government consumption (and thus allow high-return government investments to be financed by deficits, increasing their likelihood of being approved).

That is, in any event, where my thinking stood early last year, as I began drafting the article. (The overall idea had been rattling around in my head for years; but it was only last year that I was able to start in earnest to write it down in the form of a law review article.) After writing what amounted to about half the article, however, other interests intervened, and I put the project back in incubation. My plan was to return to the article to build up the discussion with additional specific examples of promising public investments, and to go into more detail about the form and functions of the administrative agency that I wanted to propose.

In the interim, however, the world discovered that the American policy-making process is even more uninformed about basic macroeconomics than we thought. My original plan for the article ignored short-term issues with deficit spending, because I thought (especially in the early days of the Obama administration, when even committed deficit scolds were admitting that deficit spending was a good idea in the face of a near-depression) that there was very little more to say about deficits as anti-recessionary policy (especially when monetary policy is all but tapped out).

With some exceptions, economists had little to say against anti-recessionary deficits. The concern was that such spending be targeted, take effect quickly, and not become permanent parts of the budget. All of those are (important) political considerations, but the basic notion that deficit spending can mitigate economic downturns was about as unremarkable an economic proposition as one could find. Indeed, the supposed turn away from Keynesian economics in the last generation or so was based on the idea that there was nothing new or interesting to say about economic policy in response to business cycle fluctuations, and that too much focus on the increasingly-mild recessions in the U.S. was leading economists to ignore long-run growth. One way to summarize the group-think among macroeconomists over this time would be: "We know how to deal with recessions, especially severe ones; let's now think seriously about how to improve long-run prosperity." (I might be taking a somewhat generous view here, but probably not too much of one.)

We now know, unfortunately, that the U.S. political process is capable of forgetting even the most basic lessons of the past. Even with very prominent economists like Paul Krugman warning people about the infamous double-dip nature of the Great Depression -- brought on by a return to balanced-budget orthodoxy (enthusiastically endorsed by FDR) before the economy had recovered in the mid-thirties -- we now have reached the stage where politicians (including far too many Democrats) are endorsing self-defeating austerity policies, with no economic justification.

Returning to my article this summer, therefore, I concluded that it was not enough to argue simply that the political culture in this country misunderstands, and therefore undervalues, public investments that can improve long-run living standards. The political culture now misunderstands everything about deficits, both in the short-run and the long-run. There are "good deficits" in both time frames, yet policymakers insist that deficits are the root of all evil. (And even those who, like President Obama, favor some good deficit spending, do so weakly and at levels that are far too modest.)

I do not pretend that my administrative solution (which I will not spend time explaining here) would be adopted today. I do, however, know that some administrative solutions have been adopted in the past that continue to discipline the policy process, preventing it from being even more insane. For example, all politicians accept the "scoring" of budget proposals through the administrative structure of the Joint Committee on Taxation, allowing technical expertise to replace politically-motivated economic forecasts. Once we muddle our way out of the current mess, it would be helpful to put more structures in place to prevent future Congresses and Presidents from engaging in yet more manic flights from sound economic policy.

Friday, August 20, 2010

Roger Clemens

By Mike Dorf

The announcement that Roger Clemens has been indicted for lying to Congress fills me with a flood of thoughts.  It being Friday in late August, and me with a syllabus still to tweak, a draft with many incomplete footnotes, and a column to write, I'll confine myself to a few random observations about a curious fact:  Of all the baseball players who took performance-enhancing drugs over the last couple of decades, only Roger Clemens and Barry Bonds ended up getting indicted for lying to Congress.  Why not others?

    Account No. 1: Bonds and Clemens were, respectively, the best hitter and the best pitcher of that era, and so they were inevitably going to attract the most scrutiny.

    Account No. 2: Bonds and Clemens are both notorious for having difficulty getting along with others.  Rafael Palmiero was generally better liked, so he caught a break.

   Account No. 3: Clemens had no credibility to begin with.  In June, during interleague play, Clemens had hit Mets catcher Mike Piazza in the head with a baseball.  The Mets and Yankees then met in the World Series.  With Clemens pitching, Piazza swung and the bat broke.  As Piazza was running to first, Clemens picked up a large chunk of the bat and threw it at Piazza, nearly hitting him.  After the game, Clemens denied that he was trying to hit Piazza with it.  He explained that he thought the bat was the ball.

  Account No. 4:  Bonds, meanwhile, was undone by the before-and-after photos.  Working out can add muscle mass, but it doesn't usually show up in an athlete's head.  Given the obviousness of Bonds's juicing, his denials cried out for investigation.

   Account No. 5:  During his congressional testimony, Clemens tried to explain away the injections he was taking as Vitamin B12.  One member of Congress asked Clemens why he was taking B12.  "Are you a vegan?"  Clemens was befuddled, answering that he didn't know what a vegan was.  In this account, the indictment is simply the resulting bad karma.

Still, when all is said and done, there does seem something a bit unfair about the fact that Bonds and/or Clemens could be convicted for lying to Congress about taking steroids, while Oliver North's conviction for obstructing Congress was thrown out.  But then, North never threw a bat at anyone.

Thursday, August 19, 2010

Can All Rights Be Abused?

By Mike Dorf

In my two posts on the controversy surrounding the planned Park51/Cordoba House (here and here), I noted how the debate has shifted from whether the organizers have a right to build it (to which I believe the answer is blindingly obviously yes) to whether it is wise for them to do so.  I am tempted to say that the answer to the second question is entirely a matter of tactics for the planners rather than a fit topic for outsiders to speculate about.

Consider an analogy.  Suppose a gay couple are vacationing in a country that is generally gay-friendly but has pockets in which people are offended by homosexuality.  (Such offense could be on religious grounds, as many Jewish, Christian, and Muslim traditionalists view same-sex sexual activity as sinful.  I understand--based on 30 seconds of Google research--that Hindu and Buddhist attitudes can be more flexible.)  Should the couple closet themselves when passing through places where their being out would be deemed offensive?  I guess my view is that this might well be a sensible tactic for avoiding harm, but the mere fact that others will, without sound justification, be offended, does not create a moral obligation on the couple to hide their orientation.  Perhaps it would be supererogatory to closet themselves, but this seems to me more in the domain of manners than morals.  I think I probably feel the same way about secular women veiling when entering Muslim countries in which that is the norm.  If veiling is required by law, then the question of whether there is a moral obligation to veil reduces to whether there is a moral obligation to obey an unjust law--except that there might be a greater such obligation when dealing with the laws of a foreign country to which one voluntarily travels.  Anyway, there can be a great many complications here, and I simply mean to surface them rather than to resolve them.  Returning to Park51/Cordoba House, I don't think that there is any moral obligation to refrain from giving offense, when the taking of offense is unreasonable, unexplained, or, as here, both.

But that is not to say that it is difficult to describe cases in which it would be poor judgment--or much worse--to exercise a right.  The First Amendment provides the most familiar examples: Nazis and Klansmen have a right to march to express their viewpoints; no right-thinking person believes that they act wisely in doing so.  Or, to take an example from the Supreme Court's current docket, in Snyder v. Phelps, the Court will decide whether the civil verdict against the Phelps family and the Westboro Baptist Church (WBC) violates the First Amendment.  I am confident that no Justice who finds that their speech was protected will thereby be endorsing the idea of showing up at the funeral of a fallen Marine with signs saying "Thank God for Dead Soldiers" and "God Hates Fags."  (The fallen Marine, Mathew Snyder, was not gay, but the WBC believes that 9/11 and the wars in Iraq and Afghanistan are God's punishment for America's failure to address sin.  Lovely.)  The argument in the case will likely focus on whether there is a captive audience doctrine applicable to funerals and if so, whether it applies given the proximity limits that were applied to the protesters.  The argument almost certainly will not focus on whether the WBC's speech was wise or valuable.

It is tempting to say that all constitutional rights have this character: They can be exercised wisely or unwisely. But I think that's not necessarily so.  First, consider the "wisely" prong.  Someone could think that abortion is always wrong but that it is nonetheless properly the subject of constitutional protection.  I have a number of Catholic friends who take a position close to this: They say that they themselves would never have an abortion (the friends in question are women) but that they nonetheless believe government should not foreclose the option.  So my friends take the view (not unreasonably, I think, given their various commitments) that the right  to abortion really should be a legal right but that as a matter of morality, its exercise is always wrong.

Now consider the other half of the hypothesis: Are there rights that cannot be unwisely exercised?  Some strong supporters of the right to bear arms (understood post-Heller/McDonald as an individual right)  think that all people who are eligible to carry firearms should carry firearms.  I have heard this view expressed on occasion and it follows logically (if not inexorably) from the view that an armed populace deters crime.  I'm not taking a position on whether an armed populace does deter crime; I'm simply saying that if you think that, you could well think that everyone eligible to carry firearms has a moral duty to his fellow citizens to carry a firearm.

Finally, notwithstanding the foregoing examples, for the most part I do think it true that constitutional rights can be exercised wisely or unwisely, responsibly or irresponsibly, morally or immorally.  Note that in both of my examples--abortion as a right that it is never right to exercise and firearms possession as a right that it is always right to exercise--I had to posit someone with rather idiosyncratic views.  I suspect that most supporters of the abortion right and of the right to possess firearms think that there are circumstances in which their respective exercise is wise/morally permissible/morally obligatory, and other circumstances in which their respective exercise is unwise/morally impermissible.

Wednesday, August 18, 2010

Beliefs and Motivations

By Sherry Colb

In my FindLaw column for this week, I discuss Michigan v. Fisher, a per curiam opinion from the Supreme Court, reaffirming the Court's commitment to the "emergency aid" exception to the Fourth Amendment requirement that police must obtain a warrant before entering a private home.  In particular, I discuss the Court's statement that even if the officer who entered the home in question did not actually believe that there was an emergency calling for immediate aid, it would nonetheless have been reasonable for him to enter the home without a warrant so long as a reasonable person could have concluded from the circumstances that there was an emergency.

In my column, I discuss the Court's progression over time from the position that an officer's subjective motivations do not matter (e.g., an officer is stopping a motorist in the hopes of finding drugs, not because of the traffic violation that the officer just witnessed, is still acting lawfully in performing the stop) to the position that an officer's beliefs do not matter (e.g., the officer who does not believe the motorist he is stopping even committed a traffic violation is still acting lawfully in performing the stop).  I suggest that the progression represents a departure that could potentially challenge the viability of the "probable cause" concept.

In this post, I want to consider an analogous motivation/belief split in the substantive criminal law context.  Most criminal offenses carry an explicit or implicit requirement that the perpetrator possess some level of intention with respect to her actions and/or their consequences.  For example, to be guilty of murder, you generally have to have either intended to kill, known that your actions would kill, or acted in the face of a known and great risk that your actions would kill.  If instead, your actions cause someone's death without your having any sort of intent, knowledge, or recklessness with respect to that outcome, (for example, if you turn on a light switch that has secretly been wired to set off explosives in a neighboring apartment), then you will not be guilty of murder.

Though there are some strict liability crimes, in which you need have no intent or knowledge with respect to facts that make your conduct criminal, a perpetrator's state of mind is generally considered to be a fundamental component of what makes her actions wrongful, culpable, and worthy of criminal punishment.

Motivation operates at a different level.  First, we tend to look to motive in trying to solve a crime.  If a particular person had something that would have driven him to kill the victim, for example, this motive makes the person a potential suspect (and may help persuade the jury of his guilt, if he is tried).  Second, a motive can make a crime seem more or less serious.  For instance, in deciding whether to sentence a murderer to death or not, a motive can qualify as an aggravating factor (e.g., killing someone for financial gain) or a mitigating factor (e.g., killing to help spare the victim's family suffering under a tyrannical head of household).

Motive is not ordinarily a requirement, however, in getting a conviction in a criminal case.  If I persuasively prove that you killed someone, I need not prove why you did it.  Indeed, for conviction purposes, with some caveats, it does not really matter why you did it.

Why distinguish intent and motive?  We do so because intent (or some level of awareness with respect to the likely consequences of one's actions) helps distinguish between innocent behavior and guilty behavior.  The person who unknowingly turns on a light switch that causes an explosion is an innocent person, despite having been the causal agent of a death.  Intent (or the beliefs under which an actor is operating) determines whether or not she is guilty at all.

Motivations, by contrast, generally turn someone who is already guilty into someone who is either worse than or not as bad as the typical guilty person.  They do not ordinarily either independently establish guilt or negate it.

This is the theory behind hate-crime sentencing enhancements.  If you beat up a person, absent an excuse or justification, you have committed a crime.  If in doing so, you are motivated by the race of your victim, however, your crime is thought to be worse than it would otherwise be.  This does not mean that it would be okay to beat someone up if you were motivated by something else; it just means that some motivations distinctively worsen your culpability.

To come back to police motivations versus beliefs, prior to Michigan v. Fisher, the police officer who was motivated by curiosity (or even the race of a motorist, as discussed in Whren v. United States) would still be performing a reasonable search or seizure, so long as he reasonably believed that a crime had been committed or that someone was in need of immediate emergency assistance.  This is comparable to the situation in which, even if you are motivated by your desire to make society a less unequal place, you are still guilty of larceny if you knowingly steal a rich person's property, with the intention of permanently depriving that person of it.

Under Fisher, however, the officer need not even believe that an emergency requires immediate entry, quite apart from whether the officer's motive for entering is the emergency.  By hypothesis, then, even if the officer does not believe someone committed a crime, she may perhaps lawfully arrest the person so long as there is evidence on the basis of which a different officer could reasonably conclude that the person committed a crime.  This is comparable to the scenario in which a defendant shoots a person to death, not believing that the person posed any danger, and then claims self-defense.  If another defendant could reasonably have believed the victim posed a danger, under the Fisher theory, this defendant could openly admit "I did not fear for my life or safety, but I killed the victim anyway" and be acquitted on the ground of self-defense.

In my view, this would be a negative development in the criminal law, just as it is an unfortunate development in constitutional criminal procedure.  In practical terms, it will often be the case that a police officer or a criminal defendant will not admit that she either did not believe there was an emergency, or did not believe she was in any danger, respectively.  If the reasonable person would have been concerned or afraid for her safety, then that will often be enough to admit the evidence/bring back a verdict of justifiable homicide.

Nonetheless, subjectivity is important, and one who truly does not believe in the facts the appearance of which would justify rights-infringing conduct should refrain from engaging in that conduct, and the law should say as much.  In a case like Fisher, this would have enabled the trial court to find, as it did, that a police officer who did not act as though he believed there was an emergency did not in fact believe there was an emergency and therefore should have obtained a warrant before entering a private home.  The Supreme Court should accordingly have allowed the Michigan rulings to stand.

Tuesday, August 17, 2010

Whose Place Is It Then?

By Mike Dorf

My post yesterday noted how at least a sizable fraction of the participants in the public discussion of the planned Islamic Center near ground zero have come to accept that the people proposing to build the Center have a right to do so.  Now the question is whether they ought to do so or whether they ought instead to build somewhere else.  Like the President, I don't have a view on that question.  I share the sense of some of the commentators that there doesn't seem to be any good reason for people to be offended by the planned Center.  And, as I noted in my comment on yesterday's post, I think anti-Muslim prejudice likely accounts for most of the offense.

That's not to say everyone who opposes the Cultural Center is acting out of prejudice.  E.g., Charles Krauthammer likened the building of the Islamic Center to the building of a Japanese Cultural Center at Pearl Harbor, a disney park at Manassas, or a convent at Auschwitz, on the ground that to each of these groups it should be said "This is not your place."  But while I don't doubt the sincerity of the non-crazy opposition, I don't think that the argument works.

President George W. Bush got a great many things about the response to 9/11 wrong but the one piece he got right was his consistent (albeit not so successful) effort to make clear that the U.S. was attacked by people acting in the name of Islam, not by Islam itself.  And even Krauthammer says that Al Q'aeda represents only a minority strain of Islam. So why is the vicinity of Ground Zero not the "place" of Muslims who preach tolerance and mutual understanding?

I suppose it's possible that the people opposing the construction of the Islamic Center would oppose the construction of any new religious facility near ground zero--but in fact no one appears to take that position, which makes no sense in any event.  Why would the construction of a church or synagogue near ground zero be offensive?  But if no offense would be given by a church or synagogue, then why would an Islamic Center be offensive?  The Pearl Harbor analogy--which has been promoted by others besides Krauthammer--is revealing,  Presumably a Japanese cultural center at Pearl Harbor would be offensive (or would have been offensive 65 years ago) because the Empire of Japan attacked the United States at Pearl Harbor.  But the analogy only works if one then says that Islam attacked the United States on 9/11.

This explains why many of the critics of Park51 have characterized it as trafficking in "radical Islam" or have pointed to Saudi financing for the center.  Radical Islam is an umbrella term that can encompass Al Q'aeda, while Saudi Arabia produced all but one of the 9/11 hijackers.  There's perhaps something to this line of argument, though much less than meets the eye.

Thus, when Newt Gingrich (straddling the line between the crazy right and the sane-but-craven-say-anything-right) says that Park21/Cordoba House should not be permitted because there are no churches or synagogues in Saudi Arabia, he both draws attention to the Saudi connection and shows that he's not really making the claim that ground zero is not the right place for an Islamic Cultural Center.  The logical inference to draw from Gingrich's invocation of Saudi Arabia's exclusion of non-Islamic houses of worship is that no mosques should be allowed anywhere in America.  And again, it's hard to shake the feeling that that's the sentiment underlying most of the opposition.

Monday, August 16, 2010

From Rights to Their Exercise

By Mike Dorf

The kulturkampf against the planned Islamic Center within a few blocks of ground zero has morphed into a discussion of the difference between legal rights and their exercise.  Let's briefly recap:

1) Some New Yorkers (including some surviving family members of 9/11 victims) and many others were offended at the prospect of an Islamic Center (to include a mosque) being built a few blocks away from ground zero and so they looked for a means to block it, such as seeking to have the current building (site of a Burlington Coat Factory) designated a historic landmark.  Others sought (and still seek) an investigation into the finances of the Center, presumably as a means of blocking it.  The City Landmarks Comm'n (correctly) rejected landmark status for what was in fact an unremarkable building.  Other efforts to block the project continue.

2) Meanwhile, various pundits and organizations have chimed in.  Some, like the ADL, say that they are not challenging the legal right of the developers to build the center.  They say it is not "a question of rights, but a question of what is right."  But others, such as conservative candidate for Congress Randy Altschuler, persists in saying that New Yorkers should "stop the mosque."  It's not entirely clear what means Altschuler proposes to use to stop the project.  He asks supporters to sign a petition, but the petition is not, as far as the website discloses, addressed to anyone in particular, nor does it make any specific demands.  Somewhat more prominently and less abstractly, Republican gubernatorial candidate Rick Lazio seeks signatures on his own petition to "tell Andrew Cuomo to investigate the proposed . . . mosque in lower Manhattan."

3) In response, various other pundits and a few politicians--most notably NYC Mayor Michael Bloomberg and then recently, President Obama--came out strongly in defense of the cultural center.

4) Some conservative pundits and politicians then accused the President of missing the point.  Notably, Sarah Palin said on her Facebook page that "we all know that they have the right to do it, but should they?"  I'm not a regular reader of Palin's Facebook page (still waitin fer her ta friend me, dontcha know), but I do know how to scroll down a webpage, and doing so brought me to the former Alaska Governor's July 22 entry, in which she wrote--specifically in response to Mayor Bloomberg's defense of the cultural center--that "it would be an intolerable and tragic mistake to allow such a project sponsored by such an individual to go forward on such hallowed ground."  By "allow," presumably she meant something like "for the authorities to allow." I recognize that the Bard of Wasilla has poetic license to invent words and thus perhaps to use words in non-standard ways, but from the context it's patently obvious that she meant for others to allow the project to go forward rather than for the people behind the cultural center to allow themselves to go forward with their plans.  Hence, even if "we all know that they have the right to do it" as of now, that wasn't true three weeks ago, when this fact was not known to Palin herself.

5) Accordingly, when President Obama seemed to back off of his initial strong defense of the Islamic center, he was making a fair point: Much of the opposition to the Islamic Center--including by Palin--did seem to challenge the right to build it and not just the wisdom of doing so.  Thus, defending free exercise was not a non sequitur, given the prior (and to a large extent ongoing) campaign.  We end up with a very narrow disagreement: Palin and Obama now agree that the planners have a right to build the Islamic Center where they plan to build it; Palin says they should not exercise their right; Obama says it's not for him to advise them whether to build it or not.  Yet that small difference will undoubtedly be the source of much electioneering and demagoguing between now and November.

So much for the politics of all of this.  In a follow-up post (possibly tomorrow), I'll have some thoughts on the question of whether all constitutitonal rights can be defended without defending the underlying exercise of those rights.  We're all familiar with free speech cases in which civil libertarians defend the rights of nasty people to say dreadful things, but is this dynamic different with respect to other rights?  

Friday, August 13, 2010

Can Young People Become Less Cynical About Social Security?

-- Posted by Neil H. Buchanan

The Trustees of the Social Security system released their 2010 annual report last week, perfectly timed for my return from a brief hiatus from FindLaw. In my column this week, therefore, I discuss the annual report, as well as the completely predictable commentary on the report from those who have long targeted Social Security for cutbacks or worse.

The annual report itself contains nothing but good news: Despite continuing economic stagnation, the depletion dates for the Social Security trust fund under the Trustees' three forecast scenarios are unchanged from last year's report (2029, 2037, and never). Moreover, under the intermediate scenario, tax revenues are now forecast to cover 78% of scheduled benefits, up from the 76% predicted a year ago.

(There is also very good news about Medicare, with its annual report showing that that system's trust fund will be in the black through 2029, a 12-year increase from last year's estimate of 2017, thanks to the health care bill passed earlier this year. For those Republicans who continue to claim that "ObamaCare" was an example of a big government spending program that will be a fiscal disaster, this is bad news -- or it would be, if they cared at all about facts.)

After discussing the meaning and implications of the 2010 numbers -- and explaining why those numbers in no way amount to an impending crisis -- I spend the balance of the column explaining why it is not a good idea to address potential future financing problems (problems that we may or may not ever face, if we do nothing now) right away, even though many commentators say that it is better to act sooner rather than later.

I offer two reasons for inaction today. First, opening up Social Security for a "simple" long-term, phased-in fix is incredibly dangerous, because its opponents (and others who are duped by the anti-Social Security public relations juggernaut) will mobilize to legislate much larger (and entirely unnecessary) changes to the system Second, changing Social Security's taxes and benefits now will further undermine trust in government, especially among the young. Here, I will offer some further thoughts on the latter argument.

One of the depressing realities about the politics of Social Security is that the system's opponents have succeeded in convincing the majority of post-Boomers that the system is a rip-off. Not just a rip-off, but a complete rip-off. Young people do not merely think that the system is a bad financial deal -- even though it is a very good deal for all but those with the highest incomes. Young people do not merely believe as a matter of certainty that future benefits will be cut -- even though that is not at all certain. (That 78% figure is merely the level to which benefits could be cut, under one set of assumptions, if the system does not have any other sources of revenue from 2038 onward.) In fact, the majority of young people even claim to believe that they will not receive any money at all from Social Security. None. I provide a link to a USA Today article from last month, describing the results of a recent poll: "Three-fourths of those 18 to 34 don't expect to get a Social Security check when they retire." They evidently believe that it will be gone by then, because it will go bankrupt and be dissolved. (We can thank confusion regarding the non-synonyms "insolvent," "bankrupt," and "liquidated" for that misunderstanding.)

What do you do when so many people are so pessimistic? One answer is to view that pessimism as a license to validate younger workers' worst fears. A deficit hawk is quoted in the USA Today article saying: "We could make changes and still have people collecting more in benefits than they're expecting to see." In other words, if they are expecting nothing, then they should be happy with any pittance that they receive. We could, under this logic, cut benefits by any amount (under 100%) that we like, and that would still leave people better off in their minds. They apparently would not complain, because they would have ended up better off than they currently expect.

That this preposterous argument is being offered by a major player in the Washington policy debate (an economist, not a politician) speaks volumes about the the debasement of our public discourse. There is obviously an enormous difference between a generalized sense that something might go wrong in the future -- the dark suspicion that one's elders are secretly working the system to the disadvantage of their children -- and the harsh reality of being told that one's worst fears are not merely worst-case possibilities. Could anyone seriously imagine that we could cut, say, 40% from scheduled future benefits from Social Security and have younger workers say, "Cool! That's better than we were expecting." You can bet that the response would, instead, be to call Social Security a bigger rip-off, because taxes would not be cut by 40%, too. Once we start down that road, we are obviously not going to make people happy by slightly out-performing their worst-case scenarios.

The more interesting question is whether there is a way to get younger people back on board with Social Security. This is essential, because the only thing that threatens Social Security's existence is politics, not economics (or demographics). The worry that Social Security will be gone in the future can be self-fulfilling, if enough people abandon the system in the mistaken belief that it is all a scam. So long as enough people support the system politically, it can continue to perform into the indefinite future, with at most minor fixes along the way.

Still, as the politicians like to say, "If you're explaining, you're losing." People like me spend countless hours trying to explain that the anti-Social Security hype is nonsense; and we have the facts on our side. Those who believe the nonsense simply believe that they are right, and nothing can convince them otherwise.

Now that public attitudes have swung so clearly against reality-based thinking, is there a way back? I continue to believe that explaining can be part of winning, which is obviously why I write about this topic so frequently. Beyond that, I think that one way to convince people that a bad thing will not happen is not to let it happen. As years pass, and the ground fails to swallow us up, it will become more difficult to maintain the belief that something awful is on the way. Not impossible, mind you, because it is always possible to claim that our next step really will finally send us over the edge of the cliff. At some point, however, people become cynical about those who cry wolf. If we do not give in to the claims that Social Security must be "saved," we can slowly rebuild confidence in the viability of the system.

As a final thought, we might also have some success by turning the tables. Young people do not like to feel that they are being duped. That is one of the psychological tools in the kit of the anti-Social Security forces. ("You're paying in, but you'll never get anything back. Don't be a sucker!") Given the facts, it seems possible to frame the anti-Social Security position as the thing that savvy people should avoid. "Don't let them convince you to dismantle Social Security, just to satisfy their anti-government lust!" Or something like that.

[In a future post, I will discuss an additional aspect of the question of how to get younger workers back on the side of Social Security. Specifically, I will describe how proposals to "fix" Social Security actually hit the younger generations hardest. ]

Wednesday, August 11, 2010


Mike Dorf

Future archeologists who read the Aug. 9, 2010 issue of the New Yorker may think that the uproarious piece therein by David Sedaris (abstract here) was written in reaction to the curious case of Steven Slater, the JetBlue flight attendant who finally cracked after dealing with one too many surly passengers.   In his essay, Sedaris describes the unpleasantness of air travel these days as only he can, including some tidbits about the (apparently justified) contempt in which flight attendants hold most passengers.  Sedaris should get credit for prescience, for his essay was written many months ago.  I know because I heard him perform an earlier version of it live in April.

Sedaris speculates in his essay that the ill tempers one sees (and experiences) in modern air travel are not so much the product of stressful situations but the way we really are, merely exposed by those stresses.  Perhaps, but either way, it's worth asking about causes.  I'm going to take as a given that there is less civility in contemporary  interactions between customers and agents of large corporations these days than in the relatively recent past (as recently as, say, twenty years ago).  Think of the last time you were frustrated by an endless series of prompts on the customer service line of the phone company, cable company, or whatever.  Now think of the last time you yelled at the hapless customer service representative who continually repeated some nonsensical non-answer to your question when you finally got through to him or her.  Ashamed?  Me too. The mystery I want to address is why has customer service gotten so bad.

The culprit, I think, are the large rewards available to investors and managers for short-term performance.  Our capital markets have become very good at squeezing short-term profit out of productive enterprises, and that has been bad for both employees and customers.  A company that invests in excellent customer service or in making its employees feel valued (through pay, benefits and amenities) can reap long-term profits as a result: Loyal customers provide repeat business, while satisfied employees save on training costs, etc.  And some enlightened managers pursue this course.  (It's easier if you're running a closely held company.)  But if you're trying to show an increase in quarterly or even annual profits, slashing expenditures on employees and customer service will likely do the trick in the short run--and the long run is someone else's problem.

Now, this explanation isn't really necessary for the airline industry, which has been in bad shape for a long time.  With many airlines operating in the red, the need to cut costs is over-determined.  And some of the problems arise from tightened security measures.  But I think these factors merely exacerbate in the airline industry a situation that is bad in most sectors.

So far I have a mechanism--shortsightedness--but I still don't have an underlying cause.  How have the incentives changed in recent years to make corporate directors, managers and even shareholders more shortsighted?  The answer here, as in the financial crisis, was the explosion of compensation.  Gigantic annual bonuses paid to managers who showed large profits in boom years and then skedaddled when the bust came were a big part of what enabled institutions that should have known better to make terrible long-term bets on housing derivatives.  That same dynamic has been at work for some time in undermining customer service and employee satisfaction.

But now the bad news.  The solution with respect to managers gutting companies is apparent (which is not to say that it's going to be adopted): Tie compensation to long-term corporate performance differences between the firm for which managers work and the industry overall.  In short, the mismatch in incentives between managers and shareholders is an agency problem that should be addressed as such.  But solving that problem will not do much for customer/employee relations so long as the principals--the shareholders--are also focused on the short term.  And that seems to be the case, especially when one considers that with computer trading, stocks are now held for mere fractions of a second.

So it looks like we're in for a lot more "cropdusting" (a term explained in the Sedaris essay), if not worse.

Polymorphism 3: The New Originalism

By Mike Dorf (Updated/Corrected Post, as Explained Below)

A couple of weeks ago, I posted here and here about constitutional polymorphism--the notion that a single word or phrase in the Constitution could mean one thing in one context and something else in another context.  The posts led to some spirited exchanges in the comments over a number of questions about both statutory and constitutional polymorphism, including: 1) Is it ever justified?  2) How common is it?  3) Were the specific examples I gave actually instances of polymorphism or were they better explained as instances in which a single word or phrase was sufficiently vague that it could have a consistent meaning across contexts, even as the implications of that single meaning varied in those different contexts?

To conclude this discussion of polymorphism, I'd like to connect question 3) to some of the questions raised by the so-called "new originalism."  To summarize, the new originalism--by contrast with the "old" originalism--is essentially a theory about how to read texts rather than a theory about how to constrain judges.  Where the old originalism was often intentionalist and paid substantial attention to the concrete expectations of the framers, the new originalism looks to original public understanding and the concepts captured by the words of the Constitution.  Prominent new originalists include Randy Barnet, Larry Solum, and Keith Whittington.  Jack Balkin professes to be a new originalist as well, although there is debate over whether he should be admitted to the club.  (More on that in a moment.)

Although I regard the move from intentions to public meaning as important, that move was already being made by originalists in the 1980s.  To my mind, the real practical significance of new originalism is its modesty.  Solum describes most contemporary originalists (by which I take him to mean new originalists) as subscribing to what he calls the "moderate contribution thesis": "The semantic content (linguistic meaning of the constitutional text) forms a constraining part of the legal content of constitutional doctrine, but it can be supplemented (by constitutional construction) and may be subject to limited defeasibility conditions (e.g., extraordinary emergencies)."  Likewise for Whittington, much of the contestation in constitutional law is not about constitutional meaning--what he calls "interpretation"--but about "constitutional construction," a process that is not determined by the original meaning of the text.  Solum, Whittington and other new originalists save originalism by shrinking it: Originalism in their hands becomes the claim that public meaning plays an important role in framing constitutional controversies, but much of the heavy lifting is left to "construction."  Thirty years ago Paul Brest called this approach "moderate originalism," which he defined as follows: "The text of the Constitution is authoritative, but many of its provisions are treated as inherently open-textured."  Filling in the open texture is what the new originalists call "construction."

Brest's article (The Misconceived Quest for the Original Understanding in the 1980 BU L Rev) distinguished among three views: strict originalism; moderate originalism; and non-originalism.  After attacking strict originalism (on grounds that have more bite against intentionalist than textualist theories), Brest concluded that moderate originalism is defensible but that non-originalism should generally be preferred.  That is, in principle, a real difference with the new originalism, but I think the discussion of polymorphism provides a nice analogy for showing why in practice the distinction doesn't amount to much.

Consider an example I used in my second post on constitutional polymorphism.  I said that in construing the Establishment Clause as a structural principle not subject to exceptions, the Supreme Court had interpreted the words "no law" differently from how the Court had interpreted the same terms as applied to freedom of speech, where strict scrutiny applies.  Some commenters objected that one could get this pair of results by giving "no law" a consistent meaning, so long as one understood that "freedom of speech" only encompasses protected speech.  (One commenter astutely noted that the Supreme Court once said strict scrutiny applies to denominational preferences under the Est Cl, but I regard that case as amomalous and, in any event, nothing turns on the particular example.)   I agree.  It's usually possible to recharacterize a seemingly polymorphic interpretation of some word as non-polymorphic (monomorphic?), so long as there are some sufficiently vague words lurking around.

Brest makes the same point about moderate originalism.  He says that one can get to the result that the Equal Protection Clause forbids most sex discrimination by purporting to use the original understanding at a sufficiently high level of generality.  However, he says that such decisions are better characterized as really non-originalist.  Or, in the new originalists' terms, the real action takes place in the domain of constitutional construction, after original understanding has run out.

Brest's claim is empirical.  Some of the new originalists contest it, saying that the semantic content will actually rule out some of the results that nonoriginalists would otherwise reach.  But their list is short and contestable.  And Balkin's efforts to fly the new originalist flag while affirming liberal constitutionalism rather seriously undercut them.  Unless the other new originalists have some good ground for kicking Balkin out, his recent work seems to support Brest's claim that results purportedly reached in the name of moderate originalism are not seriously derived from the original understanding.

I'll end with a confession.  I have not read all of the new originalism scholarship as closely as I probably ought to have, mostly because I regard it as a rearguard action to save originalism by sacrificing what made it a distinctive approach.  Hence, it's possible I've missed something important here.  But I doubt it.

Postscript:  Perhaps in confirmation of my concluding confession, the original version of this post mistakenly quoted Professor Solum's definition of the minimal contribution thesis rather than the moderate contribution thesis.  Thanks to him for calling the error to my attention in the comments and on his blog.  I don't think the error undermined the substantive points I make here but I apologize nonetheless.

Tuesday, August 10, 2010

Rationality Review

By Mike Dorf

Understandably, most of the news coverage of Perry v. Schwarzenegger has focused on the bottom line: A court found a constitutional right to same-sex marriage.  But some of the coverage that has gone deeper has managed to convey a half-truth: The notion that Judge Walker declined to reach the question of what level of scrutiny applies to laws denying same-sex couples the right to marry.  (I don't have quotations or citations handy but I've seen this line.)  That's a half-truth because while Judge Walker said that Prop 8 flunks rational basis review, he also made clear that it needs to pass something more like strict scrutiny--both because marriage is a fundamental right and because Judge Walker finds all the prerequisites for the conclusion that sexual orientation is a suspect classification.  I make the latter point in my column.  Here I'll add two observations.

First, Perry was a somewhat unusual case in that the gay-rights plaintiffs actually asked for strict scrutiny.  For many years, the litigation strategy of the gay rights movement was to argue that the courts didn't need to reach the question of what level of scrutiny applies because the challenged laws failed rational basis review.  This was a winning strategy in both Romer v. Evans and Lawrence v. Texas, neither of which expressly applied heightened scrutiny, but neither of which exactly applied conventional rational basis scrutiny either.  But why didn't gay rights lawyers argue in the alternative that: a) heightened scrutiny should apply (under either due process or equal protection or both, depending on the nature of the case; but that b) even if mere rational basis scrutiny applied, the challenged law or policy failed?  My sense--based on numerous conversations with movement lawyers over the years--was that making argument a) was deemed too risky.  If we got to the Supreme Court with a heightened scrutiny claim too soon, the logic went, we could blow the whole thing.  I also think this approach was partly based on the calculation that Bowers v. Hardwick was inconsistent with heightened scrutiny--although that notion should have been dispelled by 1996, when the Court decided Romer.  It was clear then that the Court would not treat Hardwick as much of an obstacle to reaching what it deemed a just result in a discrimination case.  In my column, I noted my sense that the mainstream gay rights organizations were a bit miffed that Ted Olson and David Boies filed without prior approval.  That miffedness may have also extended to the fact that Olson and Boies argued for heightened scrutiny, but if so, it seems misplaced.  If there was ever a good reason to rely solely on rational basis scrutiny, there no longer is--certainly not with respect to marriage, where the fundamental rights argument is quite strong.

Second, I think it's somewhat unfortunate that Judge Walker relied on rational basis scrutiny to invalidate Prop 8.  It's one thing to say that a majority of the voters in a state voted for a law that can't withstand rigorous judicial scrutiny.  It's quite another to say that they voted for a law that was completely irrational.  Traditional rational basis scrutiny is incredibly deferential to asserted state interests.  Is there a rational basis for banning same-sex marriage?  If I were trying to defend Prop 8 (a job which I don't want and won't be offered), I think I'd say something like this: The law serves to maintain a traditional line for fear of starting down a slippery slope to official state recognition of polygamy and other relationships (such as two or more Platonic friends who want to be "married").  Is that a good basis for denying a right to same-sex marriage?  I think not, but is it completely irrational?  Laws have passed traditional rational basis scrutiny even if they were based on demonstrably false assumptions, so long as those assumptions could have been true.  And it could be true that same-sex marriage will lead to polygamy in the sense that such a state of the world would not violate any of the rules of logic or the known laws of science.  So, I think Prop 8 probably should survive rational basis scrutiny, and it's unfortunate that Judge Walker's opinion will, for the time being anyway, cast the issue as whether the supporters of Prop 8 are irrational morons or lunatics.

It should be enough to say that Prop 8 violates the basic civil rights of LGBT Californians.  That broader holding could be readily defended without the need to insult Prop 8's supporters.  Thus, we have a case in which an attempt at minimalism--here only applying rational basis review--backfires.  (In case there's any doubt, I say all of this as a longstanding proponent of full marriage equality and as someone who thinks that Judge Walker decided the merits correctly.)

Monday, August 09, 2010

Ballot Initiative Sponsor Standing

In my latest FindLaw column I consider the possibility of backlash against Judge Walker's ruling in Perry v. Schwarzenegger.  Although I basically agree with Judge Walker on the merits, I nonetheless remain quite nervous about this case getting to the SCOTUS too early: Either we'll lose and lock in a bad decision for a decade or more, or we'll win and risk a constitutional amendment.  I don't say that backlash is inevitable but I do think the risk is real.

I note briefly in the column that Judge Walker had one way to avoid a decision on the merits: He could have held that there was no live case or controversy.  The key state defendants declined to defend Prop 8, but Judge Walker permitted Prop 8's sponsors to intervene to do so.  Yet that decision was dubious in light of Arizonans for Official English v. Arizona.  Speaking for a unanimous Court there, Justice Ginsburg expressed "grave doubts" about the Article III standing of the sponsors of a ballot initiative to defend it when its constitutionality is challenged.

Here I want to express some of my own doubts about the Supreme Court's doubts.  To translate, I think that the 9th Circuit was right in allowing a ballot initiative's sponsors to have standing to defend it when the relevant govt officials refuse to defend it.  In the interest of full disclosure, I should say that I was a law clerk to 9th Cir Judge Stephen Reinhardt when he wrote the decision finding such standing, and about which Justice Ginsburg expressed her grave doubts.

I am not a big fan of ballot initiatives, but if a state permits them it is typically because of a preference for direct democracy over republicanism.  The risk in the latter is that elected officials do not identify the common good sufficiently closely with public opinion.  (Again, I think that this is a virtue of republicanism, but the premise of the ballot initiative process is contrary.)  The ballot initiative process is available precisely because the People cannot always trust their elected representatives to carry out their will.  Thus, when elected officials decline to defend a ballot initiative in court, they are directly frustrating the whole point of the ballot initiative process.  Perhaps that is their prerogative, but if so, it makes sense for someone else to come in to defend the ballot initiative's constitutionality.

To my mind, this situation is closely analogous to the one the Court faced in Dickerson v. United States.  There, the appeals court had sustained the defendant's conviction on the ground that a federal statute had overruled the Miranda decision.  The Clinton Justice Dep't declined to defend the statute, and so the Supreme Court appointed a leading academic critic of Miranda to do so.  True, there was a technical difference: The U.S. continued to be a party, arguing that even under Miranda, the defendant's conviction should be affirmed.  But the only real contested issue in the SCOTUS--and the issue the Court took the case to decide--was the constitutionality of the statute.

Modern standing doctrine was more or less made up about 40 years ago.  The underlying textual basis for it--the requirement that there be a "case" or "controversy"--seems readily satisfied by a contest pitting people who want to challenge a law's constitutionality against the sponsors of the ballot initiative that led to the law's enactment.

So to recap: I agree with Judge Walker on the merits; I also think that given the stakes, perhaps he should have tried to duck the merits; given what the SCOTUS said in Arizonans for Official English, he could have ducked by finding no standing for the sponsors of Prop 8; but I also think that the dicta in Arizonans for Official English is wrong (to the extent that mere grave doubts can be wrong).

Friday, August 06, 2010

Update on this morning's post

-- Posted by Neil H. Buchanan

In my post this morning, the eighth paragraph begins: "More broadly, a very large number of Democrats ..." I have re-written the second sentence of that paragraph (regarding Sen. Bayh's departure from the Senate) to clarify my point, which was obscured by poor self-editing. Interested readers might want to glance at the re-written argument.

The bigger point is this: Many Democrats are competing with each other to see who can sound "tougher" about deficit spending. This puts Democrats in league with Republicans in denying the central macroeconomic lesson of the New Deal -- that there is an essential and unique role for the federal government to fight economic downturns through deficit spending.

The Unloved New Deal

-- Posted by Neil H. Buchanan

My post earlier this week, discussing the extremism so evident in today's Republican party, included a short discussion of current opposition among conservatives to the New Deal. Responding to a colleague's comment on an earlier Dorf on Law post -- a comment suggesting that liberals are wrong to assert that "conservatives are trying to undo the New Deal" -- I noted that there is at least one group of conservatives who believe that the entire notion of government regulation of business is a violation of the contracts clause of the Constitution. I further noted that the most recent conservative president, and his entire party, were willing to put a proponent of that viewpoint (Judge Janice Rogers Brown) on the D.C. Circuit, even over strong Democratic objections that this viewpoint is far outside the mainstream. At the very least, therefore, some conservatives want to undo the New Deal, and most or nearly all national Republicans were anxious to put a person with that view on a very powerful court -- a court that, moreover, is the most active in dealing with the modern regulatory state.

This discussion led me to think further about what we are really talking about when we discuss the New Deal in 2010, and what it would mean to want to undo that sea change in the philosophy of governance in the United States. One way to think about this is in the neo-Lochnerian mode noted above: The New Deal is the entirety of modern government and its activities, in which the federal government is regularly involved in setting the rules by which society (and especially business) work.

By that definition, I suspect that it is fair to say that not many conservatives really would completely undo the New Deal, even if they had the chance. There are just too many things that people take for granted, such as food and drug regulation, that are carried out by the federal government. Notwithstanding almost all current political rhetoric, it is difficult to imagine even a strongly conservative Congress going very far in cutting back the modern state. Indeed, the years when President George W. Bush could have worked with Republican majorities in both houses of Congress to cut back on New Deal-inspired government activities saw little action in that regard. (There were, of course, plenty of behind-the-scenes efforts to emasculate agencies, such as the Minerals Management Service. Even so, these efforts were relatively small in the scheme of the things.)

Beyond the broad concept of government-as-rulemaker, with the federal government intervening in the life of the nation as a matter of course, what else could be said to characterize the New Deal? After some thought, I have concluded that the key programmatic elements of the New Deal are on the hit list of not only every Republican, but of the leadership of the modern Democratic Party as well. This is a strong claim, to be sure. Please allow me to explain.

Some aspects of the New Deal are simply artifacts of history. The Civilian Conservation Corps, the National Reconstruction Adminstration, and so on served their purpose -- although they were too small, and their reduction in 1937 in the name of budget balancing caused a very deep second dip of the Depression. Those programs are gone. Even so, they represent the first key element of what I think is a meaningful definition of the New Deal: direct government involvement in the economy to fight economic downturns. This was new in the thirties, with John Maynard Keynes providing the intellectual basis for an active government role in fighting the Depression.

The other key aspects of the New Deal that are still in play are, as far as I can discern, the following: securities regulation, labor laws, and Social Security. On each of these, "centrist" Democrats now join with conservatives and Republicans in opposing the essence of Roosevelt's legacy.

(1) Counter-cyclical policies: The Democrats passed a weak stimulus package in 2009. The Republicans opposed it. A President McCain, however, almost certainly would have done something similar. Even so, Democrats are showing no stomach for a big showdown over further stimulus, no matter how obviously it is needed. Even the Senate's vote this week in favor of aid to states was "paid for," which means that it was not as stimulative as it could have been. (Caveat: A big part of the offset was in closing a corporate tax loophole, which is a good idea even during a deep recession.)

More broadly, a very large number of Democrats now espouse balanced budgets, even during the toughest economic times in over seventy years. Being an anti-deficit hawk is now a matter of holier-than-thou posturing, with people like Senator Evan Bayh decrying his colleagues' supposed lack of seriousness about cutting budget deficits, and citing his disgust with their fiscally impure thoughts as one of his principle reasons for leaving the Senate. If the New Deal's commitment to fighting downturns has not been undone, it is a close call. Moreover, there is not even the slightest hint of sentiment to have the federal government directly create temporary jobs (as opposed to encouraging private-sector job creation) on a large scale, suggesting that the most visible manifestation of the New Deal is truly dead. Nearly all Republicans, and nearly all Democrats (including the "socialist" president), apparently see nothing wrong with that.

(2) Securities Regulation: With the big, new financial regulatory bill (Dodd-Frank) freshly signed by President Obama, it seems obvious that Democrats are still committed to the idea that the government should aggressively intervene to make sure that financial capitalists play by extensive (and unwelcome) rules. We need to remember, however, that it was the Clinton economic team, led by Obama's top economic advisor Summers, that dismantled the Glass-Steagall Act, the key bulwark of the New Deal's response to financial chaos.

Dodd-Frank is no Glass-Steagall. Indeed, as many have noted, most of the new law's bite will come in yet-to-be-written (after extensive lobbying) regulations. The bill explicitly rejected structural remedies to systemic financial problems, especially "too big to fail" limits and the segregation of banking activities from other financial activities. Again, there is very little evidence that the mainstream of the Democratic party has any interest in putting the most important aspects of the New Deal back in place, when it comes to financial rules. Although there is no move toward outright deregulation, there has clearly been a move toward much less effective regulation. And neither party seems bothered by this basic change in approach.

(3) Labor Laws: The National Labor Relations Act has not been repealed. That, however, is about the only positive thing one can say about labor protections in recent decades. The Democratic Leadership Council, which created people like Bill Clinton and Rahm Emanuel, was open in its hostility to organized labor. Democrats in 2009 could not even get themselves worked up about something as basic as reforming the rules to organize unions. Yes, the Democrats solicit and receive political support from unions, but there is very little reason to believe that Democrats are pro-labor in any real sense of that term. For Republicans, it is even more obvious. They attacked this week's bill providing aid to state governments (noted above) as a sop to teachers' unions, because the bill forestalled the firing of 140,000 teachers.

(4) Social Security: No law more centrally reflects the spirit of the New Deal than Social Security. It is one of FDR's proudest achievements, and it has been a spectacularly successful program. It can continue to be so, but only if it is not destroyed through political action. Even so, Obama's deficit commission is expected to recommend major cuts in the program, with budget hawks almost visibly salivating over the idea that some Democrats are now talking about cutting into their most important program. Republicans, meanwhile, seem to hate the program on a cellular level. One of their so-called idea men, Rep. Ryan, has proposed what amounts to a full privatization plan. Few expect Social Security to be repealed outright, but there are ominous movements afoot to start its long-term destruction in earnest. All in a bipartisan manner, of course.

In sum, I do not believe that most conservatives would take the opportunity to return to pre-1933 laws in all of the areas discussed above. In that sense, there is no widespread movement to undo the New Deal. However, it seems entirely clear that Republicans and Democrats alike do not support the concepts that were at the heart of the New Deal. The two parties differ greatly in the degree to which they would undo specific parts of FDR's still-vibrant legacy, but both parties show little support for its key elements. I believe that this is bad for America, but even those who applaud the rollback of the New Deal must see that both parties have been hacking away at it for decades.