Friday, October 29, 2010

"I am a fairly respected writer."

By Mike Dorf


Last week, the Washington Post reported on the publication, in a Virginia 4th-grade textbook, of the proposition that thousands of African Americans fought for the South during the Civil War.  No reputable historian believes this to be true, but Southern revisionists set on propounding the view that the "War of Northern Aggression" was not about slavery have made it on the internet.  From there, the claim worked its way into the textbook.


To my mind, the most interesting aspect of the story is the defense offered by Joy Masoff--author of the controversial textbook and several others but not a professional historian.  Rather than saying something like, "oops, I thought I had properly sourced everything in the book, but I goofed on that one, my bad," Masoff instead stood her ground.  "As controversial as it is, I stand by what I write," she said. "I am a fairly respected writer."  I just love the self-refuting quality of this statement.  Rather than offer evidence for her controversial view, Masoff asserts that she is "fairly respected"--not as a historian, mind you, but as a writer.


Meanwhile, the incident got me interested in the organization promulgating the view that thousands of African Americans fought for the Confederacy, the Sons of Confederate Veterans.  On its website, the SCV proclaims that "The preservation of liberty and freedom was the motivating factor in the South's decision to fight the Second American Revolution."  The claims about African Americans who fought for and otherwise served the Confederate forces are found here.  Strikingly (at least for me), the Confederate Battle Flag is found in numerous places on the SCV site, and expressly defended against the "arrogance" of those who deem it offensive..


It appears to be important to the SCV to deny that in defending symbols of the "Lost Cause," they are in any way associating themselves with slavery or racism. In the view promoted by the SCV, the dispute over slavery played no substantial role in the Civil War, except to the extent that Lincoln tried to transform what the SCV calls "a disagreement over secession into a crusade against slavery."  The SCV is conspicuously silent, however, about what led the Confederate States to want to secede in the first place.  Yet while there were sectionally divisive issues in antebellum America besides slavery (most prominently the tariff), it's simply ludicrous to suggest that slavery was not at least an important source of division.


The SCV is right to object to contemporary portrayals of 19th century Northerners as champions of civil rights.  By contemporary standards, most Northerners of the time were shockingly racist.  But even as the SCV does not deny that the South practiced slavery, it seems intent on denying that slavery in the 19th Century was distinctly Southern or distinctly race-based, noting that there were a handful of African Americans who owned (African-American) slaves.  Running throughout the website is a very strong tone of grievance: the Confederacy and thus the contemporary South have been unfairly painted in victors' history as villains; the SCV aims to set the record straight.  Unfortunately, it does so by mixing truths (e.g., about Northern racism) with fiction (e.g., about the level of African-American support for the Confederacy).

Thursday, October 28, 2010

The Phone Call

By Mike Dorf

No, not the robocalls of Justice O'Connor's voice.  Apparently, those were sent out without her authorization.  I'm interested in the earlier notorious Supreme Court-related phone call.  Having previously defended Virginia Thomas's political activism as not necessarily inconsistent with her husband's judicial office, I'd like to think that I have the credibility to offer a few observations that are occasioned by her odd phone call to Anita Hill.  The opportunities for humor here are obvious, but other than pointing readers to a very funny piece by Andy Borowitz, I'll play it straight.

1) I'm hardly the first person to notice that the phone call was counterproductive for any aim that Ms. Thomas could have been rationally pursuing.  Most obviously, by leaving a RECORDED message that had a fair chance of making it to--and did in fact make it to--the national media, Ms. Thomas ensured that Americans who had either forgotten or never knew the details of the Hill/Thomas portion of Justice Thomas's confirmation hearing 19 years ago would now have those details rehashed for them.  And it has created interest in Lillian McEwen's story.

2) In light of how predictable all of the above was, one obvious question would be "what was Virginia Thomas thinking?".  I'm as interested as the next guy in a good conspiracy theory but I simply don't see any way in which her call to Hill was aimed at securing some kind of hidden advantage.  It strikes me that Ms. Thomas sincerely wanted an apology from Hill.  The question is why she thought she would get one.  If--as Ms. Thomas likely believes--Hill's 1991 testimony was false, then Hill is the sort of person who would have no reason not to stick with her story.  And if Hill's testimony was true, then, as Hill herself said, she has no reason to apologize.

3) This circumstance is in some ways reminiscent of a dilemma that our sentencing/parole/probation system creates: We tend to give lighter sentences, and to end sentences earlier, for criminal defendants who express remorse.  That makes some sense: Other things being equal, and assuming we can verify that the remorse is heartfelt, a repentant wrongdoer is both less deserving of further punishment and less of an ongoing threat to public safety than is an unrepentant wrongdoer.  But the people most entitled to get out of prison quickly--indeed, entitled not to go to prison in the first place--are those who have no reason to express remorse because they are innocent but have been wrongly convicted.  Such innocents are unlikely to display remorse for crimes they did not commit, and as a result may receive harsher punishment because of their unrepentant attitude.

4) It's not clear what to do about the phenomenon of the unrepentant-because-wrongly-convicted prisoner.  Obviously, we should do a better job of ensuring that people aren't wrongly convicted in the first place, but even once we do so, erroneous convictions will occur, and innocent people will appear remorseless.  Meanwhile, of course, some people who insist on their innocence are in fact guilty.  It's tempting to think that the sort of person who would feign innocence would also feign remorse, and so that we could sort them that way.  But the truth is it's nearly impossible to convincingly assert innocence while simultaneously asserting remorse.  Put differently, there is no good way to express remorse conditionally.  One cannot credibly say "I'm innocent, but if I weren't innocent, I'd be remorseful."  Another figure who sparked a media sensation in the 1990s provides an instructive comparison:  OJ Simpson's effort to explain how he "would have" murdered his ex-wife and Ron Goldman but only if he did it, was widely (and appropriately) deemed offensive.  (And no, I'm not asserting any sort of equivalence between OJ Simpson and Anita Hill.)

Wednesday, October 27, 2010

The Right to Ill Health: Food Stamp Eligibility and Freedom

In my column for this week, I discuss NYC Mayor Michael Bloomberg's recent request from the U.S. Department of Agriculture (USDA) for permission to exclude sugary soft drinks from the category of food and beverages covered by food stamps, for a two-year period.  This would mean that the money people receive in food stamps (a total amount that would not change) could not be spent on drinks that contain more than ten calories per eight ounces (with exceptions for fruit juices, dairy products, and non-dairy milks such as soy milk or rice milk).  The column takes up the issue of whether Bloomberg's request is legitimate, given that the Food Stamp exclusion (1) affects only poorer people who qualify for food stamps, (2) limits people's freedom to make their own consumption choices, and (3) leaves entirely unaddressed the negative impact of other unhealthy products, such as animal-based foods, on consumers' health.

In this post, I want to address one potential defense of the food stamp program (against the libertarian objection that consumers should be able to make their own choices), a defense that relies on the cost of providing health coverage to people of ill health.  When a libertarian says "I have the right to make whatever choices I like to my own detriment, so long as my choices do not affect others," the premise of the asserted freedom is that others do not suffer as a result of its exercise.  I do not, in other words, have the right -- even according to a libertarian -- to force other people to eat unhealthy food.  I only get to make choices that negatively affect me.

The problem with this argument, in a society that provides services for its population, is that harming your own health is expensive for other people who pay the bill.  Though the U.S. does not provide the sort of medical support that one finds in other countries, it is still the case that hospitals that receive Medicare payments (virtually all hospitals) may not turn away emergency patients for lack of the ability to pay.  As a result, federal taxes go to pay for emergency treatment for people suffering from ill health, including those experiencing medical crises flowing from cancer, heart disease, and diabetes -- the three diseases linked to consumption of animal-based foods and poor nutrition (including the over-consumption of processed sugars) more generally.  Because not everyone who eats himself or herself into a medical emergency is able to pay for care, governments have an interest in providing incentives for people to consume healthy food.  Food Stamp exclusions for sugary sodas provide one such incentive (or remove one disincentive).

Though an imperfect fit, this argument serves best to defend a pro-nutrition policy aimed at impoverished people, because they are perhaps more likely than their neighbors to have to rely on subsidized medical care later on, when they suffer the ill effects of food choices that others may be making as well.

Of course, a true libertarian would say that hospitals should not be required to serve patients who cannot pay for care.  Our approach to medical emergencies seems to underline an irrational division between prevention (when we take a libertarian approach) and cure (when a social insurance approach is taken), a division that tends to maximize both the expense borne by society and the suffering borne by the individual patient (because an ounce of prevention is worth...).  From a libertarian's perspective, then, this argument (about avoiding the expense of health care costs of misbegotten food choices) rests on a status quo that is itself violative of individual liberty.  This is indeed why libertarians oppose the Health Care Bill for requiring everyone to "buy in" to the health coverage system by purchasing a policy.

Given, however, that we live in a world of (highly limited) social insurance, it is simply untenable to suggest that people in the U.S. should have the unalienable liberty to consume whatever food they like, on the premise that they affect only themselves.  And when the suffering and deaths of sentient animals are taken into account as well, along with the environmental devastation wreaked by animal agriculture, the notion that "I am hurting only myself" becomes an increasingly unsustainable fiction.

Tuesday, October 26, 2010

In Appreciation of Public-Sector Workers

-- Posted by Neil H. Buchanan

[CORRECTION: In my post below, I wrote that "I have never worked for the federal government." Professor Dorf reminded me that I was once (from August 2002 - July 2003) a federal judicial clerk. I regret the error.]

In my latest FindLaw column, published yesterday, I discuss the attacks on public employees (some attacks being quite literal and deadly, although the thrust of the article is about rhetorical attacks) that have become distressingly common in the past few years. Public-sector workers (those dreaded "bureaucrats") have never been wildly popular, of course; but it seems fairly clear that they are coming in for an extra drubbing during the current economic disaster. It is a pretty ugly tactic, essentially turning middle-class people against other middle-class people by insinuating that government workers are overpaid and under-worked, at the expense of Real Americans. It is no wonder that there actually have been some violent attacks; and it is in some sense surprising that things have not (yet?) become much worse.

Here, I want to discuss two unrelated strands from the FindLaw column. First, I will add a thought about a recent NYT op-ed by David Brooks, to which I refer in the column. Second, I will expand a bit on improvements in the user-friendliness of various public agencies over the past few decades.

Frequent readers of this blog know that I have written disparagingly of Brooks's work in the recent past.) Even so, I continually fight a furious battle with myself, trying not to spend too much time on Brooks and his twice-weekly silliness. I lost that battle again this week, but I at least managed to minimize the time spent in my FindLaw column on his latest nonsense. Specifically, Brooks wrote a column last week claiming that public-sector employees -- through their ever-so-evil unions -- have made it financially impossible (through high wages and benefits) for governments to engage in long-term investments of the sort that I strongly approve.

As I point out in my column, this is simply a ridiculous argument. There is absolutely no reason to believe that labor costs have been the decisive factor in any public investment decision. Indeed, many potential public investments are huge winners on a cost-benefit test -- even taking into account existing labor costs. That we have not engaged in such investments has everything to do with anti-deficit hysteria, and nothing at all to do with supposedly-overpaid public employees.

In the final edit of my column, I did force myself to cut out the following: "Admittedly, using Brooks as an example might be a bit unfair. As a general matter, his columns display a rather disturbing lack of analytical rigor. As a specific matter, he claims in the column referenced above that the political contributions from public-sector unions distort the political process, but a week later, he argued that political contributions have no meaningful effect on the political process. Notwithstanding Brooks's specific limitations, however, this general attempt to blame public employees for the country's problems is hardly limited to one fatuous columnist." Having cut those sentences from the column, I only wish that there were some other venue in which to publish them. Hmmm.

More to the broader point of my FindLaw column, one of the issues that I discuss is the general improvement over the last few years in the user-friendliness of government agencies. In the column, I mention the U.S. Postal Service. Compared to, say, twenty years ago, the user experience at the Post Office is like night and day. Even with inadequate funding, they have gone from a system with hours-long lines and employees who would reject parcels for even the slightest deviation from packing guidelines, to one with much shorter lines and employees who will often sua sponte re-tape packages without charge. Post offices now also sell competitively-priced ancillary items, such as packing tape and regulation-sized boxes.

Given the problem of confirmation bias, of course, people generally do not give credit even when reviled agencies get their acts together. If one spends any time in a line at a post office, or if one sees more than one postal employee on the premises who is not currently staffing a window, the usual complaints about postal workers can be heard among those in line. Yes, any personal inconvenience is annoying; but there has been a huge improvement in the public's experience with this agency. Even so, some libertarian groups continue to use the Post Office as their go-to example of government gone awry: "Do you want health care to be run with the efficiency of the Post Office?" An honest comparison between the Post Office and the average HMO might well come out in the Post Office's favor.

With my background in tax law, I also find it interesting to see what has changed with regard to the customer orientation of the IRS. Again, the change over the last decade has been striking. The only good thing to come out of the 1998 IRS restructuring law, in my opinion, was the Taxpayer Advocate Service. This ombudsperson (currently the wonderful Nina Olson) and her staff continually provide taxpayers with assistance in getting their problems solved, and she more generally identifies issues both large and small that the IRS should fix, to the benefit of all taxpayers.

A separate Taxpayer Advocacy Panel was created by a 2002 law. Just today, it issued a report showing all of the ways that it has identified customer services problems and improved them. Naturally, any such honest effort to identify problems and solve them involves exposing the remaining flaws to the public. No one would claim that the IRS -- or any agency (public or private), run by human beings -- is close to perfect. Yet the improvements have been substantial, and they have not been undertaken in the face of "market forces." It is just a matter of better management, focused on improving the public's inherently fraught experience with the tax-collecting agency.

Of course, improving things still further just might require hiring more public employees.

I have never worked for the federal government (or for any state or local government, other than as a professor for a state university). I thus have no particular personal interest in defending the honor of public employees. I do, however, know dangerous scapegoating when I see it. Attacking government workers is certainly not going to solve our current economic problems. In any case, the people who work in our public agencies deserve our respect.

Monday, October 25, 2010

Halloween, Elections and the Summer Olympics

By Mike Dorf

The juxtaposition of political yard signs with skeletons and jack-o-lanterns got me wondering whether there is a "Halloween effect" that arises from the close temporal proximity of said holiday and our general elections.  Herewith a few thoughts:

1) As an essentially pagan holiday, Halloween creates anxiety for the most religious elements of our society, especially evangelical Christians, many of whom view it as a celebration of witchcraft, the occult, and devil-worship.  These are strongly negative associations (at least when Christine O'Donnell isn't on the ballot), and so, I wonder whether the activation of such fears so close to the election mobilizes turnout of a constituency that, over the last couple of political generations, has tended to vote Republican.  I leave to those with better empirical skills the task of figuring out how to test the possibility of a Halloween effect.

2) While I'm speculating about the Halloween effect, I may as well raise the question of whether the Presidential elections are susceptible to an "Olympics effect."  In the U.S., at least, the Olympics are a time of nationalism bordering on jingoism.  (U-S-A! U-S-A!).  If it has any political impact, the stirring up of such sentiments is likely to benefit political conservatives, who are more comfortable and better at wearing their nationalistic chauvinism on their sleeves than are their liberal/progressive counterparts.

3) The Olympics effect may be mitigated somewhat by the more than two months that passes between the end of the Olympics and the general election, but perhaps not always.  A well-timed convention could probably harness Olympic spirit and perhaps derive a bigger "bounce" as a result.

4) It's also possible that the Olympics tilt pro-incumbent rather than (or in addition to) pro-conservative.  A good performance by the Americans in the Olympics could create a general sense of well-being that would benefit the incumbent, of whatever party.  Conversely, a poor showing in the Olympics could help the challenger in heightening overall malaise and the perceived need for change.

5) Here too, it's quite hard to know how one would test any of this or even what counts as a good American showing in the Olympics.  Consider 1972.  Mark Spitz won 7 gold medals and set 7 world records in the course of doing so; count that as a positive.  The USA basketball team was robbed of a gold medal by horrendous officiating in the championship game against the Soviet Union; that's a negative, which might harm the incumbent (Nixon), but it was cold-war-salient, so it would help the more conservative candidate (also Nixon).  And all of the action on the field was overshadowed by the kidnapping of Israeli athletes, which may have been salient to the election, but not qua sports.

6) Or consider 1980.  The USA men's hockey team pulled off a "miracle on ice," but that was in February, far enough in advance of the November election to have little obvious effect.  (It was also before the winter and summer olympics were staggered to occur in different years.)  The USA (and other countries) boycotted the 1980 summer games in protest of the Soviet invasion of Afghanistan; and the Soviet bloc boycotted the 1984 games in retaliation.  There ought to be some way to use these natural experiments as a control in the tallying of the Olympics effect.

7) In the speculative spirit here, what else might have an effect on election outcomes?  Anticipation of Thanksgiving?  The end of daylight savings time?  Clearly, there is an ambitious research agenda here for someone with the right tools.  Just footnote me if you undertake it.

Friday, October 22, 2010

Conventional Blather on the Budget

-- Posted by Neil H. Buchanan

Early last month, I wrote a post ("Friendly Fire on Social Security") describing MSNBC talking-head Lawrence O'Donnell's gratuitous and completely inaccurate attacks on Social Security. O'Donnell has since been promoted from being a frequent guest host on Keith Olbermann's show to hosting his own prime-time talk show, "The Last Word." I have been avoiding that show, in part because I have been trying to clear the backlog of unfinished work from my recent globetrotting, but also because it is rather obvious that O'Donnell has nothing new or interesting to say. He is a partisan Democrat (having been a top aide to former Senator Daniel Patrick Moynihan of New York), but he is simply a font of conventional wisdom on all things economic, making him very much a "New Democrat."

Last night (Thursday, October 21), however, I was taken in by a teaser for O'Donnell's show. Most of the show was devoted to an extended discussion about the federal budget. It turns out that Esquire magazine put together a mock "budget commission," with O'Donnell moderating a three-day discussion among four former U.S. Senators, each of whom supposedly has expertise on budget issues. (Their expertise comes from their having served on the Finance Committee, which apparently imparts experience but not necessarily knowledge or insight). The bipartisan group -- Gary Hart (D-Col.), John Danforth (R.-Mo.), Bill Bradley (D.-NJ), and Bob Packwood (R.-Ore.) -- apparently agreed upon a plan of budget cuts and tax increases that would not only balance the budget within a decade but also "fix" Social Security to boot! O'Donnell spent the first half hour of his show interviewing three of the "commissioners," Packwood being unavailable.

[The MSNBC website does not, as of this moment, have a direct link to O'Donnell's show on its main page. After some searching, I found the show's main page, which provides a link to the two segments of the show dedicated to the budget discussion. There is also some discussion of the budget pseudo-commission on the show's blog. I have not yet had a chance to read the companion article in this month's Esquire. I will blog again about this issue if there is anything noteworthy in that article.]

The overwhelming tone of the discussion was that there is a huge crisis that only the real grown-ups can solve. There was much hand-wringing about the "entitlements crisis," which is standard fare for these types of get-togethers. Notably, the title of both segments was simply "Balancing the Budget," with no discussion at all of the question of how to measure the deficit. This means that, unless they were hiding something pretty important, these serious men actually think that it is important to bring the annual budget deficit to zero. This is something that not even conservative economists believe. The discussion was thus entirely lacking in nuance. Nothing about public investment as it plays into deficit computations, nothing about cyclical adjustments, nothing at all but the usual budget-balancing pieties.

Apparently, the former senators did agree that fiscal contraction should not begin until 2013, understanding that this would be disastrous for an economy that is still in desperate condition. Notably, however, Bradley stated (on his own behalf, not as part of the pseudo-commission's proposals) that a "very big fiscal stimulus" package should be enacted early next year, to fight the continuing stagnation. Notwithstanding the pose that "we're all putting partisanship aside," Danforth immediately said that he disagreed that the "failed stimulus program of the past should be followed by yet another one." Any thought that even a long-retired Republican could get past the inane -- and completely discredited -- idea that the 2009 Recovery Act had "failed" (not "fallen short," but simply "failed") was thus quickly put to rest. (As an aside, I have never understood Danforth's reputation for being a moderate. He is, among other things, the senator who most forcefully pushed Clarence Thomas's confirmation to the Supreme Court through the Senate.)

What of the actual, "tough" policy choices that these four wise old hands were able to endorse? The three substantive policy proposals that made it onto the show were: (1) defense cuts, (2) Social Security cuts, and (3) a $1 increase in the federal gas-tax. The most important thing to note about #1 and #3 is that, even as described by O'Donnell's guests, these are simply good ideas whose virtues have nothing to do with the size of the budget deficit. Ridiculously large sums of money are still being spent on weapons systems that are strategically obsolete. Hart argued that it is possible to cut $309 billion (although it was not clear if this would be a one-shot cut, an annual cut, or a ten-year total cut) from defense while improving national security. The gas tax idea is also simply good on its own merits, especially given Hart's argument that we indirectly spend about $4 per gallon of gas to protect Mideast oil fields.

Of course, these are politically volatile proposals; and it might only be possible to reach agreement on them by invoking deficit fears. Compare, for example, state-level cuts in otherwise-untouchable spending on prisons during this recession. If screaming about the deficit could actually result in the adoption of such sensible proposals, that might -- I repeat, might -- justify all of the nonsense that we hear about budget balancing. All recent experience, however, demonstrates that budget deficits are a reason not to help poor people, never to justify policies that rich people dislike. (See, e.g., the sudden budget dovishness of Republicans when it comes to extending the tax cuts that benefit only the wealthiest 2% of the population.)

And what of Social Security? Raise the retirement age to 70, and cut the cost-of-living adjustment formula. This would be phased in, of course, so that the retirement age would not reach 70 until the year 2056. (Bradley allowed the there might be some money available for additional disability benefits for people whose jobs are physically debilitating. Of course, adding a level of bureaucracy -- and requiring actual disability -- is hardly the same as collecting Social Security at age 67.) Why do this? Bradley repeated the blatantly incorrect "sooner rather than later" mantra. Meanwhile, Hart was the one who invoked his grandchildren, which was both obligatory and completely beside the point. Once again, we are being told that Social Security is going to harm our grandchildren, so we must harm our grandchildren -- the ones who might collect (diminished) benefits in 2056 and thereafter.

I have gone over this ground many times before (most recently here), so I will spare readers another rendition of the response to "But Social Security is the biggest spending item in the budget, and deficits harm our grandchildren." What I found interesting about this episode was how easy it is to find people who really do not understand the budget or the economics of deficits, yet who have credentials and can talk about it in somber tones that sound ever-so-responsible. Expect more of this (and rapid capitulation from the White House) when the official deficit commission reports in January.

Thursday, October 21, 2010

Lou Henkin's Legacy

By Mike Dorf

My post yesterday celebrated Lou Henkin's warmth and character.  Today I want to add a brief comment on a point of contention in the field that Lou did so much to build: international human rights law.  I'll begin by confessing that I am not an expert in international law, but I know enough about the lay of the land for some informed speculation.

Lou sometimes said that he treasured what he called "human rights hypocrisy"--a term he used for countries (including the U.S. on more than one occasion but more typically dictatorships) that pay lip service to human rights even as they violate them.  In Lou's view, formal commitment to human rights in the form of accession to multilateral human rights treaties, even by chronic rights abusers, has constraining force.

That view has been questioned by various scholars who argue that countries that sign human rights treaties are no more likely to respect human rights than those that don't--and that such accessions may even have a small correlation with worse behavior with respect to human rights.  In this view, human rights treaties of the sort promoted and celebrated by the likes of Lou Henkin are, to borrow a phrase from James Madison in the domestic context, mere "parchment barriers."  There is an active debate in the international human rights literature about this critique, but here I want to assume for the sake of argument that the critics are right: Knowing that Dictator X has signed onto the Convention Against Torture or the Genocide Convention does not tell us that Dictator X is less likely than Dictator Y (whose country has not signed on) to commit torture or genocide.

To my mind, the critique nonetheless focuses on too narrow a slice of time.  A man like Lou, who was born during the Russian Revolution and lived to 2010, necessarily takes the long view.  In that long view, the abusive practices of dictatorial and other regimes over the course of decades are consistent with the emergence and solidification of norms over the course of generations.  Those norms then play an important role in the realpolitick of later times.  As ratifications pile up, even if insincere originally, they develop a normative force.  True, the human rights treaties may not be implemented domestically by the dictators, but their widespread acceptance by the world community creates sources of external pressure.  For one thing, "leaders of countries care about what leaders of other countries think of them."  [Risse, Ropp & Sikkink, The Power of Human Rights 8 (1999)].  For another thing, violation of a human right that is so widely accepted as to become a matter of customary international law may generate sufficient outrage that military or other intervention results (although, of course, other factors also strongly influence whether this occurs).

The broader point is that initially insincere acceptance of a norm may, over a long time, create the conditions for the progressive realization of that norm.  To paraphrase Chou en Lai on the French Revolution, it's too soon to tell whether the age of human rights on paper that Lou Henkin did so much to create will end up resulting in nothing more than paper rights.  As between that cynical view and Lou's unusually clear-eyed optimism, I prefer the latter.  His was an attitude much like that of Dr. MLK Jr., who famously said that "the arc of the moral universe is long, but it bends towards justice."  Believing that such sentiments are more than pretty-sounding words does not make it so.  But the demoralization that comes from believing that these are only pretty words is likely to be a self-fulfilling prophecy.

Wednesday, October 20, 2010

Lou Henkin

Columbia Law Professor Louis Henkin--accurately described as "the father of human rights law"--passed away last week.  For a flavor of the incredible breadth of Lou's work and influence, I recommend the NY Times obituary and a moving piece by Clyde Haberman on Lou's funeral.  Anyone who has taught or worked in public international law knows what a towering figure he was.  Here I want to add a brief personal reflection.

In the world of social and political activists, one often finds people who care deeply about "the people" but treat actual people badly, who passionately defend "human rights" even as they mistreat the human beings around them.  Lou was nothing like that.  Virtually to a person, everyone who knew him was fiercely loyal to him because they could see his fundamental decency.

At the same time, Lou was a force to be reckoned with.  The Times obit recounts how, in WW II, he persuaded three German officers to surrender their 78-man unit to his 13-man American artillery unit (a feat for which Lou was awarded the Silver Star).  As I had heard the story, the German officers began by demanding that the Americans surrender, and Lou persuaded them of the opposite proposition.  Having seen Lou work on law school deans and colleagues to support a project he wanted, that's entirely believable to me.

Here's a small example from my own personal experience.  When I was a junior faculty member at Columbia, Lou asked me if I would co-teach his Constitutionalism in Comparative Perspective Colloquium--a weekly seminar that combined readings in political theory with guest lectures from UN ambassadors and the like in area studies (e.g., constitutionalism in Latin America, constitutionalism in Africa).  I was reluctant to do it.  Senior colleagues who had previously co-taught the colloquium with Lou had moved on from it, leading me to think that this was simply a duty imposed on juniors.  Lou was gentle but tenacious.  He assured me that it would be an easy course to teach because all of the readings were already put together and that I'd get full credit for teaching a quarter of a seminar: the guests would do half the work, while he and I would split the remaining half.  I succumbed to the pressure eventually and am enormously grateful that I did.  The two times I co-taught the colloquium with Lou provided me with a grounding in comparative constitutional law that has been essential to my understanding of American constitutional law ever since.  And more importantly, co-teaching with Lou gave me a role model for running a seminar and teaching more generally--a sense of how to demand hard work and serious thought from students without a touch of meanness.  I don't know that I've always lived up to Lou's example, but I'm sure I would have done much worse if I hadn't had it to emulate.

It's hard enough for an academic to have any influence at all on the real world, let alone to achieve what Lou did.  I don't think it would be hyperbole to classify Lou as a world-historical figure almost on the order of Gandhi or Mandela.  He will be sorely missed.

Monday, October 18, 2010

Detention Reform and Its Discontents

By Anil Kalhan

One year ago this month, the Obama administration announced ambitious plans to overhaul the immigration detention system, based on a comprehensive review conducted for Immigration and Customs Enforcement (ICE) officials by detention and corrections expert Dora Schriro. How has the administration fared in implementing these reforms?

First, some background, drawing from my recent piece in the Columbia Law Review Sidebar. Since the mid-1990s, the number of individuals in immigration detention has skyrocketed, fueled by enforcement policies that subject ever-larger categories of noncitizens to removal charges and custody – most notably individuals alleged to be removable on many criminal grounds, which now include a sweeping array of offenses, both serious and minor. Many of these individuals have been deemed ineligible for the individualized bond hearings to which individuals ordinarily are entitled, and have therefore been categorically detained without regard to whether they present any flight risk or danger. Immigration officials now spend over $1.7 billion each year to run the “largest detention system in the country,” holding nearly 400,000 individuals per year in a sprawling network of hundreds of federal, state, local, and private facilities nationwide.

With the onset of this vast system of mass immigration detention, longstanding detention-related problems have not simply persisted, but have widely proliferated.
Literally dozens of reports within the last three years alone by advocates and government agencies have documented serious and widespread detention-related concerns, including overly restrictive and severe forms of custody, abusive and inadequate detention conditions, lack of access to counsel and family members, lack of adequate medical and mental health care services, sexual harassment and abuse, frequent and large-scale transfers of detainees between facilities, and prolonged and indefinite detention.

In her report, Schriro confirmed important aspects of this picture. She emphasized that although immigration detention is a civil form of custody, not criminal punishment, the facilities, personnel, and standards used to hold immigration detainees all inappropriately draw from criminal justice models, causing most immigration detainees to be held – systematically and unnecessarily – under overly severe and restrictive circumstances that are inappropriate to their status as civil detainees. In response to Schriro's report, the Obama administration pledged reforms intended to overhaul and reconstruct this quasi-punitive detention regime – which might be termed a system of “
immcarceration” – into what one official characterized as a “truly civil detention system.”

So one year later, how’s that hopey changey, “truly civil” stuff working out for ya?


Well, as immigrants’ rights
advocates acknowledge, the Obama administration can point to a few significant changes in policies and practices, including the creation of an online detainee locator system designed to prevent individuals from “disappearing” in the detention system altogether and the restoration of an earlier policy encouraging parole and release from detention of arriving asylum-seekers who present neither a flight risk nor any security threat. Officials have also taken initial steps to expand “alternatives to detention” and to detain some individuals in less restrictive settings, based on more refined and particularized determinations of the risks presented by individuals subject to immigration custody.

Nevertheless, despite an apparently sincere commitment by senior officials to make detention conditions more humane, implementation of these reform initiatives has proceeded rather sluggishly. Conditions of confinement are not the only factor contributing to detention’s excessiveness, and at least so far the administration’s efforts leave intact a range of other practices that contribute to the excessive and quasi-punitive nature of detention for many noncitizens. Moreover, while one certainly shouldn’t expect transformational change to happen overnight,
as advocates have documented large numbers of noncitizens continue to be detained – often for prolonged periods of time – under abusive and improperly punitive conditions:
Immigrant advocates nationwide continue to report widespread due process and human rights violations, including the overreliance on incarceration, mistreatment by guards, denial of access to legal service providers, inadequate medical care, misuse of solitary confinement, and discrimination against sexual minorities. These violations demonstrate that the commitment to reform made by ICE leadership has yet to have any substantive impact on the ground. Further, the actual or perceived fear of retaliation expressed by detained immigrants and advocates alike during the fact-finding stage of this report reiterate the urgent need for ICE leadership to strongly reinforce its detention reform policies among agents, personnel, and private contractors working in the field. . . .

Oversight, transparency and accountability are critical to achieving reform, and yet these are the weakest features of the reform process thus far.
Over the past year ICE appointed regional detention managers and created a Detention Monitoring Council at ICE headquarters. However, despite these changes, there is little evidence that ICE leadership’s intention to improve oversight practices and precipitate a cultural shift within the agency has been meaningfully achieved . . . . [
link]
There’s an even more fundamental dilemma, however, standing in the way of the Obama administration’s detention reform aspirations. While the administration has pledged to make the circumstances of detention civil and non-punitive, it simultaneously has demonstrated a clear commitment to expanding its predecessors’ aggressive, quasi-punitive interior immigration enforcement policies more generally – policies which reinforce a broader convergence between immigration and criminality in law and public discourse. ICE officials have long made clear that notwithstanding their proposed detention reforms, mass immigration detention will continue “on a grand scale.” And sure enough, just last week Homeland Security Secretary Janet Napolitano proudly announced that the Obama administration had deported more individuals than any other administration in U.S. history – facilitated most notably by aggressively expanding efforts, such as the so-called “Secure Communities” program, to enlist state and local law enforcement in the large-scale identification of potentially deportable non-citizens. Even though the majority (and fastest growing group) of individuals detained and deported through these expanded enforcement initiatives – as Schriro herself noted in her report – have either no prior convictions or relatively minor criminal histories, officials have gone to great lengths to emphasize that many of these individuals have been deported on account of prior criminal convictions.

In this context, the administration’s detention reform initiatives are in deep tension with its overall approach to immigration control and interior enforcement. With a rapidly increasing number of potential detainees identified through programs such as Secure Communities, the government will face mounting pressures not only to hold even more noncitizens in its custody, but to do so at minimal cost. And by reinforcing the convergence between immigration and criminality in public discourse, the administration has made itself increasingly vulnerable to attacks – such as the scathing “vote of no confidence” recently leveled by the ICE detention officers’ union – over any initiatives that would devote time, energy, and not least money to making detention more humane and less punitive and severe.


One overall result has been a pattern of reactions that echo the “confusing and deeply contradictory” criticisms that the Obama administration faces in other policy areas: “[Obama] is a liberal zealot, in the view of the right; a weak accommodationist, in the view of the left.” The administration finds itself even further mired in that purgatory by its unwillingness or inability to move forward on comprehensive immigration reform – an initiative which could, depending on how it were crafted, help begin to roll back the decades-long convergence between immigration and crime control in law, policy, and public discourse. While congressional dysfunction and other legislative priorities obviously have played major roles in the inability to enact major immigration reform legislation, the Obama administration even appears unwilling to use its considerable administrative powers to move immigration policy in its preferred direction.


One could, with Edward Alden, conclude that the combination of detention conditions reform, on the one hand, and aggressive interior enforcement, on the other, show that “it's possible to be tough without being unfair and inhumane.” However, absent a broader reconsideration of immigration control policies that are premised upon convergence with criminal enforcement – and some efforts to move forward on more fundamental immigration reform –
the inherent tensions between those two sets of initiatives make it likely that the administration’s ever-increasing “toughness” will undermine any meaningful efforts to show “fairness” and “humanity” when it comes to immigration detention.

Is Standing Doctrine a Frankenstein's Monster?

By Mike Dorf

In my latest FindLaw column, I discuss the cert grant in Bond v. United States, which poses the question whether a private party has standing to complain that a law exceeds congressional power under the 10th Amendment.  Because the answer is "duh, yes," I use the column mostly to explore the underlying merits of Bond, in particular the question of whether the current Supreme Court still views the treaty power as a freestanding source of power for Congress to regulate in subject-matter areas that would otherwise be beyond its competence.

Here I want to raise a question about standing doctrine more generally: Is it a Frankenstein's monster?  First, let me define my terms.  The Frankenstein story--like some of the medieval Jewish golem stories on which it is arguably based, as well as the sorcerer's apprentice story, and tales of the genie unleashed from his bottle--contains the following basic theme: A monster is created to do its creator's bidding against the creator's enemies but then the monster turns on the creator himself.  In judge-made law, a Frankenstein's monster would be a doctrine that takes on a life of its own and ends up undermining the goals for which it was originally created.

Modern standing doctrine is traceable in one way or another to the early Republic, when the Supreme Court refused to give advisory opinions.  Someone who comes before an Article III court seeking to litigate an issue in which he lacks a concrete stake can be said to seek an advisory opinion.  But modern standing doctrine takes the advisory opinion rationale much farther than it went in the early Republic.  It is largely a creature of the 1970s when conservative Justices turned to standing doctrine to make it harder for civil rights claimants and other plaintiffs to have their cases heard.  To a substantial degree, it supplanted the political question doctrine, which had done that same work in earlier times.

But the law of standing, once articulated, can block all sorts of claims, not just those that conservatives would want to see defeated.  Thus, in Bond, the Third Circuit used standing doctrine to block a states' rights claimant.  And in Perry v. Schwarzenegger, standing doctrine could end up blocking the appellate defense of California's Prop 8.

To be sure, there is a sense in which Dr. Frankenstein--aka SCOTUS--needn't worry about its monster turning on himself: When standing doctrine is invoked to block claimants pressing conservative arguments, the Court can always find distinctions.  Thus, the modern cases make it hard for environmental plaintiffs to bring their claims and relatively easy for white plaintiffs challenging affirmative action programs to press their claims.  The Justices have given reasons why the situations are different, but it's hard not to see their underlying attitudes towards the merits as coloring their conclusions.

In any event, there are at least two limits to the Court's ability to slay its monster.  First, in order for the Justices to permit standing in the cases that they like and deny it in cases they dislike, there needs to be some wiggle room in the doctrine, and the doctrine is not infinitely wiggly.  Second, and relatedly, the more wiggle room the Court puts in the doctrine, the more it will allow lower court judges with different substantive sympathies to come out the other way--permitting standing for claims that liberals like while disallowing standing for claims that conservatives like.  And because there are a lot of cases out there, the Court can't take all of them.  Thus, in this area and in others, if SCOTUS wants to maintain the law in a sufficiently malleable condition for it to reach whatever results it likes, it gives the same freedom to lower court judges, creating a Frankenstein's monster.

Friday, October 15, 2010

The Legacy of the New Deal

-- Posted by Neil H. Buchanan

Last Friday, I participated in Lewis & Clark Law School's "15th Annual Business Law Fall Forum: Taxation and the Environment." A gathering of law professors and economists (and, in my case, both), the Forum was an extremely productive day of discussion about how environmental damage has been caused by -- yet might be mitigated by -- tax incentives and fiscal policy. I presented some thoughts in the vein of my ongoing work on justice between generations, arguing that environmental mitigation is an especially compelling example of a moral obligation on the part of currently-living people toward unborn generations to come. As compared to overwrought concerns about, say, the Social Security program, it is not even a close call. The Lewis & Clark Law Review will publish a symposium issue in the Spring.

Early in the conference, one of the law professors who specializes in pro-environmental tax policies argued that such taxes would be especially appealing because of "our obvious deficit problem," or words to similar effect. During the Q&A, I suggested that it would be helpful if we could avoid reinforcing the idea that deficits are per se horrible. Even though I agree that eco-friendly tax incentives are a wise way to raise revenue, there are very good reasons to avoid arguing (or suggesting, or seeming to concede) that deficits are always bad and must be reduced at all costs. Yes, it might be tempting to appeal to Congress by saying, "... and here's some revenue that you might otherwise have a hard time raising, to fight the deficit"; but at this point, we all know only too well where that kind of rhetoric leads. My suggestion was taken in the spirit in which it was offered; but it is notable that even well-informed tax specialists all too readily default to anti-deficit arguments.

This issue became a bit of an unplanned theme of the conference, as the issue arose in subsequent sessions, in slightly different guises. The keynote speech was delivered by the local congressman, Earl Blumenauer, a Democrat who serves on the Ways & Means Committee. During Q&A, I managed to force myself not to respond to his argument that Social Security should be "fixed" and asked him about the prospects for protecting long-term public investments from anti-deficit mania. To my pleasant surprise, the congressman's answer indicated that he well understands the difference between public consumption and public investment, and the different financing methods that should be used for each. He did not have anything encouraging to say about broader congressional understanding of such issues, but there is at least some comfort in knowing that some members of Congress understand these matters.

The day after the conference, the host (Professor Jack Bogdanski) led the conference participants on a day-long tour of the region around Portland, Oregon. Never having visited the state, I was especially delighted to have the opportunity to see the local natural wonders for myself. Even with the inevitable rain showers, Oregon is a gorgeous place. It is easy to see why Lewis & Clark Law School has built such a strong environmental law program. With the Columbia Gorge only minutes away, the only wonder is how anyone gets any work done, rather than spending all their time hiking.

Even in the midst of an eco-tour, however, the issue of public spending was never far from view. We drove along the Columbia River Highway, a century-old road that was (according to the information provided) the first paved road in Oregon. Built into the sides of mountains -- in many cases forced by railroad owners to build not on adjacent flat land but by tunneling through rock -- the highway is a classic example of a public investment, allowing the state to develop while providing ongoing economic payoff to the people of the region. When we arrived at the Bonneville Lock & Dam, this theme was even more obvious. It turns out that then-candidate Franklin Delano Roosevelt promised Oregon's voters in a 1932 campaign stop that Bonneville would be the first public works project that he would approve, if elected. He kept his word, and the dam still operates today, public-built and publicly-operated. The visitors' information provided at the site was a virtual guidebook for sensible economic policy, noting the short-term employment effects of the project during the Depression, as well as the continuing benefits that the hydroelectric station provides today.

Indeed, it is difficult to travel in this country without seeing the legacy of public investment projects, especially (but, as in the Columbia River Highway, hardly limited to) New Deal projects. In Toledo, Ohio, where I grew up, one of the local attractions is the Toledo Zoo, which was completed in 1935 as a WPA project. (Note: As a vegan, I obviously have issues with zoos. Nothing I say here should be construed as an endorsement of mistreating animals.) I also recall walking around Oakland, California one day, only to notice that the sidewalks on which I was walking had been built as New Deal projects. And then there is the New York subway system (built largely before the New Deal, but substantially improved during the Thirties with federal money), electrical grids, railroads, ports, and so on.

And now we are finished with all that. Earlier this week, the new Hoover Dam Bridge was dedicated, after an eight-plus-year building process. (See story here, and awesome images here.) In the era of inane opposition to all government spending, engaging in new long-term investments -- even those with huge short-term payoffs -- are simply not thinkable. During last year's debate over the stimulus (which now seems eons ago), the argument was that we must not engage in public works projects, because they are not "shovel ready" and thus take too long to build to do any good. Almost 100 years later, the Columbia River Highway begs to differ.

Thursday, October 14, 2010

Instrumental versus Justice Reasons for Holding a Position

By Sherry F. Colb

In my column for this week, I consider the justice question whether people who knowingly transmit HIV through unprotected sex with unknowing partners ought to be subject to criminal punishment for their behavior.  In the column (spoiler alert!), I conclude that for various reasons, criminalization is not appropriate.

In this post, I want to consider the implications of a competing impulse that I have, which leads me to believe (some of the time, at least) that knowing transmission of HIV (or any other serious illness) through unprotected sex is a grievous harm that deserves to be punished.

One important reason for opposing criminalization is the view (which I share) that it is more likely to deter people from getting tested than it is to motivate them to share their HIV status with prospective sexual partners.  If that is true, then I might believe that people do, in general, deserve criminal punishment for knowingly transmitting HIV to unknowing victims, and I might still decide to sacrifice a legitimate retributive objective to serve the greater good (by protecting more people from transmission).

The impulse to sacrifice retribution in order to maximize social welfare helps explain a variety of phenomena that are quite distinct from the criminalization of HIV.

One example is the decision to give diplomatic recognition to a political figure who has previously engaged in violent, reprehensible conduct but who provides the best or only hope for bringing peace to a particular country or community.  One might point to such a figure as Gerry Adams of the I.R.A. as an example of this phenomenon.

Another example might help explain at least some opposition to capital punishment.  On this approach, a person might view those murder convicts sentenced to death as entirely deserving of death (and perhaps even the tremendous anxiety associated with time spent on death row, a separate feature of suffering associated with the death penalty).  Nonetheless, a person might think that the costs of having a death penalty (including such things as the monetary expense of heightened security, the perception by victims' families that if their loved one's killers are not executed, this reflects a devaluation relative to other victims whose killer's do get sentenced to death, and the risk of wrongful execution of an innocent) make such deserved retribution a luxury we cannot afford.

A third example might account for some people's opposition to all sorts of censorship.  Apart from the libertarian approach to free speech (in which we view every individual as having an entitlement to voice his or her views, no matter how hurtful or otherwise destructive), there is also a position that holds that some speech truly is so outrageous and harmful that its speaker deserves to be punished.  Yet we choose not to punish these speakers because we worry that the impact of such censorship on the public would be to inhibit valuable expression by people.  On this account, we have an instrumental reason to refrain, for example, from punishing hate speech, on the assumption that such speech is nonetheless unworthy of protection.

And a fourth example will be familiar to Fourth Amendment scholars (and others):  the exclusionary rule.  One might take the view that admitting illegally obtained evidence against a criminal suspect is perfectly appropriate and well-deserved by the criminal suspect (particularly if the crime is serious).  Yet one might nonetheless support suppression of evidence taken in violation of the Fourth Amendment as a means of maximizing police compliance with Fourth Amendment requirements (that searches and seizures be reasonable), a compliance that will maximize the privacy of innocent individuals in the future, at the cost of reducing the odds that a guilty person will be rightfully convicted of his crimes in the present.

In practice terms, of course, if one opposes criminalization of HIV transmission, opposes capital punishment, supports awarding statesman status to former terrorists, opposes censorship, and supports the exclusionary rule, it may not ultimately matter that much whether one opposes/supports such things for instrumental reasons or for justice reasons.  The bottom-line position is what it is.

Yet the difference is significant, in my view, because it acknowledges the justice claims that those on the other side of the issue make, in a way that other sorts of opposition do not.  For a proponent of the exclusionary rule to say, for example, that a murderer is no less deserving of punishment by virtue of a police officer's failure to obtain a search warrant before entering the murderer's house, is to share with the exclusionary rule opponent the view that there is something fundamentally wrong with suppression.  This means that if one can address the instrumental concerns of the proponent in some other way, then one might be able to persuade the proponent to comne over to the other side.  Sharing fundamental assumptions about justice and injustice might accordingly prove to be significant not only to theory but to consequences as well.

Wednesday, October 13, 2010

The Gay Rights Tipping Point

By Mike Dorf

With yesterday's ruling by Judge Phillips striking down "Don't Ask Don't Tell," we appear to have reached a tipping point on judicial willingness to act to protect gay rights.  Together with earlier rulings this year, we now have federal district court rulings invalidating the Defense of Marriage Act, California's Prop 8, and Don't-Ask-Don't-Tell.  Although I agree with all of the rulings as a normative matter, I'm interested here in a causal account.  Both DOMA and Don't-Ask-Don't-Tell have been on the books since the Clinton Administration, whereas prior to the ruling in Perry v. Schwarzenegger, no federal court had invalidated a state law barring same-sex marriage, ever.  Why the seemingly sudden change?  I would point to two factors.

First, and most obviously, norms have been changing.  Federal courts can sometimes get out ahead of public opinion, but given that federal judges come from the same basic pool as the nation's other elites, they are unlikely to go too far out ahead.  And so, whereas the country was not quite ready for same-sex marriage or openly gay service members in the armed forces in the 1990s, by now both are pretty mainstream (especially opposition to Don't-Ask-Don't-Tell).  It would have taken a very bold federal judge to reach these decisions in the 1990s; today, it's almost a no-brainer--especially when one looks at the perversity of Don't-Ask (in discharging service members with valued skills while we're fighting two wars) or the weakness of the arguments offered against same-sex marriage.  I don't think the calculus should have been different 15 years ago, but because it was different for so many people, it was easier then for federal courts to duck the issue or to cite such general interests as "respect for tradition" or "deference to the political branches in military affairs."

Second, legislative efforts appear to have stalled.  This is a familiar pattern in constitutional litigation, one that we have seen before with respect to legal challenges to Jim Crow, to malapportionment, and to restrictive abortion laws: So long as efforts to change the law through legislation bear some fruit, the courts are happy to leave such controversial issues to the legislative process, but once those efforts hit substantial resistance, judges no longer believe that elected officials will take them off the hook--and so they vote their consciences.  To put the point somewhat differently, the notion that American judges are eager to intervene in politics is largely a myth; they typically intervene as a last resort.

To be sure, one might think that in a basically democratic system, judges should decline to intervene, even when progress appears to be stalled--because the definition of progress should be left to the political system.  I think that's a defensible position, but it's not really a position held by anyone, and certainly not a position held by most of the critics of :"judicial activism."  They think courts should intervene in politics when the outcomes produced by politics disfavor what they regard as the correct interpretation of the Constitution; they just disagree about what those correct interpretations are.

So, to return to the core point, I regard the critical turning point on Don't-Ask-Don't-Tell as the preposterous insistence by various defenders of the current policy on the proposition that it would be dangerous to engage in a "social experiment" with our military during wartime.  As Judge Phillips documents, quite to the contrary, the military has dramatically under-enforced Don't-Ask during the last 9 years, precisely because of the national security dangers that arise from discharging essential service members who happen to be gay.  So the experiment is well under way already.

Unfortunately, under-enforcement of Don't-Ask is not non-enforcement and so hundreds of service members continue to be discharged each year, while thousands more never sign up.  It would have been ideal if Congress had carried through on repealing Don't-Ask, and perhaps it will yet do so before the appeals in this case are final.  In the meantime, the opinion by Judge Phillips says, in essence, enough is enough.

Tuesday, October 12, 2010

He's Not a Witch Either

By Mike Dorf

The NY Times has an interesting profile of Chris Coons, the Democratic candidate for Senate who got the nomination more or less by default.  The core of the Times story is that Coons has been avoiding direct attacks on Christine O'Donnell, essentially letting the media and his opponent's old videotape do the job for him, while he focuses mostly on his own solid, if boring, substance.  You could have written more or less the same story about Andrew Cuomo's approach to dealing with Carl Paladino (who is also not a witch, or so I'm told).

Cuomo, of course, starts out much better known than Coons for a number of reasons: His father was governor; he was a Cabinet Secretary; he ran for governor himself a few years ago; he has been a successful attorney general; and perhaps most importantly, he seems to have avoided most of the scandals in which NY state politics has been embroiled in the last few years.  But the thing is, Coons will almost certainly end up a star--not just by defeating O'Donnell but in what he accomplishes in the Senate.  If he does, remember that you heard it here first.

I got to know Coons a little when we were both in college because I sometimes debated against him.  He was terrific: knowledgeable, smart, and extremely witty.  Of course, that information is a quarter century out of date, but while poor public speakers can become serviceable or even good at it, I doubt that someone who was a first-rate public speaker at 20 would somehow lose it at 47.

Perhaps more importantly, Coons does not have the resume of someone who always wanted to go into politics.  I never knew him very well, so I could be wron, but based on what's in the public record, he looks like someone who was perfectly happy with a private-sector career and involvement in public-spirited projects on the side.  I'm sure he has ambition, but I doubt he has the kind of driving needs-to-run-for-President ambition that can make a Senator an insufferable blowhard.

Again, I realize this is based on very little, but I suspect that within a decade, Chris Coons will be a national political figure, while Christine O'Donnell will be either the answer to a trivia question or the host of a FoxNews show.

Monday, October 11, 2010

Ballot Initiative Repeals for California

By Mike Dorf

I've been spending a few days in California (it's "fall break" at Cornell) and accordingly thought this a good time to suggest to the good people of the erstwhile Bear Republic (and my home in 1990-91) how they might improve their law.  Accordingly, two suggestions:

1) NOW is the time to repeal prop 13, the 1978 ballot initiative that is widely credited with substantially undermining primary and secondary public education in Califorina.  Prop 13 had two crucial elements:
a) a cap of 1% annual property tax;
and
b) a cap of 2% annual increase in assessed property value (except upon transfer), even when property values rise dramatically.

Getting rid of a) might not be feasible, but if ever there was a time to get rid of b), this is it.  The point of b) was to prevent people from being taxed out of their homes by real estate booms around them.  That was a legitimate goal but the actual measure went well beyond the goal, and worse, it created its own constituency for non-repeal: As time passed, homeowners increasingly favored b), because it worked to advantage them relative to their new neighbors.  But b) has very little salience now, given that the cap on assessed value is substantially higher than what people are actually paying--due to the housing bust.  So, ballot initiative writers, get to it!  (Yes, I realize it's too late for 2010, but the dynamic will likely remain for a few years, at least.)

2) NOW is also the time to repeal Prop 8.  There is a decent chance that the 9th Circuit will find no appellate standing in Perry v. Schwarzenegger.  If so, the case could well go to the SCOTUS on the standing issue.  This creates a roughly two-year window for California to moot the case, by repealing Prop 8 and making same-sex marriage legal again.  The reason to do so now is that the SCOTUS still can't be trusted on the merits--and as I've noted before, a pro-marriage ruling by SCOTUS could inspire backlash.  I now think it extremely unlikely that such backlash would include a federal constitutional amendment barring same-sex marriage nationwide, but it could well include electoral defeats of gay-friendly and generally progressive candidates in various battlegrounds.

California has a number of important statewide initiatives (e.g. this one) on its ballot this year, but these two should also be considered.  And yes, California, you're welcome.

Friday, October 08, 2010

Timing the Next Financial Crisis

-- Posted by Neil H. Buchanan (back in Ithaca, NY, for a few days)

My FindLaw column this week is a written version of some of my comments at Monash University's "Globalisation and Business Challenges in the post-Financial Crisis World" conference in Prato, Italy, last week. The title of my talk was: "How Soon Will the Next Crisis Come, and What Are We Doing Now That Will Hasten It?" My comments in Prato, and my FindLaw column, focused on the second question in that title, i.e., explaining how the U.S. policy response to the 2008-present crisis has been woefully inadequate, thus increasing the likelihood of a repeat performance of the recent near-catastrophe.

The argument essentially boils down to three steps:

(1) We have chosen not to engage in any structural reforms, especially on a large scale, such as bringing back the strict divide between commercial and investment banking, or enacting "too big to fail" limits to break up large institutions into somewhat smaller ones.

(2) We have passed a bill (Dodd-Frank) that, to an apparently unprecedented degree, was written without even the most typical structural (or bright-line) rules, leaving the real work to agency regulation-writing procedures. I refer in the column to an example mentioned in a NYT business column by Gretchen Morgenson, who noted that a straightforward 20% per-bank ownership limit on a key (high-profit) clearinghouse had been replaced by language allowing (but not requiring) a regulatory agency to consider imposing some level of ownership limits. My reading of the commentary on Dodd-Frank indicates that this type of punting was the norm in the bill.

(3) Moving the real action in financial regulation out of Congress and into the internal processes of the SEC, the CFTC, the Fed, etc. is a terrible idea. These agencies are necessary, but recent experience (both within the financial regulatory agencies, and in federal agencies more generally) shows that this is a particularly bad time to give the agencies even more discretion. I believe in the importance of federal regulation of modern economic markets; but I do so knowing that the regulators are quite fallible humans. Adding to their burdens -- and their temptations -- is a very bad move, especially when they have a lot of work to do just to clean up their own recent messes.

That is the bad news, and there is no way to dress it up. I strongly suspect that the next crisis will come rather soon, precisely because of our rather unseemly return to business as usual. Timing crises is nearly impossible, of course, but I offered an outer limit in my talk in Prato: 77 years. This is simple (and simple-minded) arithmetic, with an underlying semi-sarcastic but serious point. It was 79 years from the crisis in 1929 until the crisis in 2008, and it has been two years since then. Hence, 77 years. Q.E.D.

More seriously, the reason to use the 1929 crisis as the baseline is that it takes time for memories to fade (aided by the turnover of generations), guaranteeing that even the best responses to a crisis will ultimately be abandoned by future optimists who believe that "it" can never happen again. It does not seem possible that the responses to the current crisis will be anywhere near as effective or durable as the early-1930's responses that served us so well for almost seven decades (before Bill Clinton joined a Republican Congress in repealing key provisions), meaning that 77 years is a wildly optimistic time frame. As I said during the Q&A, 5 years (or even 5 minutes) seems much more likely to me than the latter half of this century.

Is there anything pushing in the other direction? Certainly, Dodd-Frank is better than nothing (or so we hope). The best part of Dodd-Frank is the Consumer Financial Protection Board, Harvard Law Professor Elizabeth Warren's brain-child. Despite attempts by the banks and credit card companies and their allies in Congress to kill the CFPB, or at least to keep Warren away from it (precisely because she will not be co-opted or deterred by the practices to which I referred above), she is apparently going to be the de facto head of the Board, at least for its start-up phase.

Most of this is good news for potential victims of deceptive practices, etc., which is a good thing in and of itself; but it seems to have little to do with preventing the next financial crisis. Still, the recent crisis was at least proximately caused by the bursting of the housing bubble, a bubble which was enabled by financial practices that the CFPB will probably curb or eliminate.

My suspicion, however, is that there is no limit to the types of financial games that can lead to financial crises. If we successfully shut down mortgages and credit cards as the cause of the next crisis, then that will be a real achievement. Even so, the people who are going to be protected by the CFPB's actions will still be among the victims of the next recession/depression, which we are doing far too little to prevent.

Thursday, October 07, 2010

Retirement

By Mike Dorf

My latest FindLaw column considers a proposed bill by Sen. Leahy that would permit retired Supreme Court Justices to serve by designation on their old Court in cases in which one or more active Justices are recused.  As I explain in the column, even though Justice Kagan has already recused herself in 24 cases this Term, the proposal--if acted upon swiftly--would not actually make a difference in more than about 3 cases.  Nonetheless, I favor the proposal because it would be nice to see Justices O'Connor, Souter and Stevens returning for encores.  Here I'll add a few thoughts about judicial retirement and retirement more generally.

1) Under current practice, retired Supreme Court Justices can (and occasionally do) sit by designation on the lower federal courts, but for someone who spent a long time on the Supreme Court, it's hard to imagine that doing so is especially fulfilling.  Returning to the Supreme Court has got to be more gratifying.  Given how the Court functions--more or less as nine solo practitioners who happen to share an office building--the only real opportunity for a retired Justice to engage with his or her former colleagues would be to do so back on the old bench.

2) Of course, even under the Leahy proposal, retired Justices would not be called upon to return to the SCOTUS bench very often.  Within a short time, the cases coming up from the lower courts will not be ones that Kagan worked on as SG, and the other Justices typically have no more than a couple of recusals each per Term.  So in a typical year, each retired Justice would be called upon to fill in for a recused active Justice no more than a handful of times per year.

3) SCOTUS Justices have a reason to retire that most people lack: By timing his or retirement right, a Justice can ensure that the replacement Justice is appointed by a President of his or her own ideological persuasion.  But for ordinary folks, it's not clear why anyone with a reasonably fulfilling white-collar job should ever retire. Sure, if you're a coal miner or otherwise engaged in physically demanding labor and your body is giving out, it makes sense to retire rather than squeeze out a few more painful years at the workplace.  But otherwise, the mental stimulation of work is almost certainly beneficial in warding off boredom and senility.

4) As various news stories have recently documented (e.g. here), the recession and decline in portfolio values have left people who planned to retire with the thought that they will not retire until forced to do so by ill health.  This phenomenon will undoubtedly have ripple effects on everything from the viability of retirement communities in the sunbelt to job opportunities for people in their 20s.  But it's probably useful to sort out those medium-term effects from the long-term policy question of what the law should do to support or discourage retirement.

5) The recent unrest in France in response to the proposed raising of the retirement age (from 60 to 62) shows that most people there continue to think that traditional retirement beats continued employment.  It is doubtful that attitudes in the U.S. differ much, except perhaps among the wealthy.  But it is quite possible that people misunderstand their own interests.  From what I've read, retirement is often a prelude to decline in a way that continued gainful employment is not--although again, much depends on whether a particular job is more than a brutal grind.  It would be useful to have a policy conversation about retirement that was not connected to the politics of Social Security, Medicare, etc.  But we almost surely won't.

Wednesday, October 06, 2010

My New Book

Hey DoL Readers,

Do you sometimes wish that you had a better grounding in the basics of constitutional law?  Do my references to "tiers of scrutiny" or the "dormant commerce clause" sometimes leave you baffled?  If so--or even if not--then have I got a deal for you.  Buy my new book (with Trevor Morrison) on Constitutional Law.  Get it here, here, or here.  Info below.

Thanks for reading!
Mike Dorf


Oxford University Press
Now Available!
The Oxford Introductions to U.S. Law: Constitutional Law
Table of Contents 

Key Features:
  • Provides a sophisticated theoretical framework to constitutional law that is nonetheless accessible to beginners.
  • Covers leading cases and concepts, and includes numerous real-world and hypothetical illustrations.
  • Addresses the constitutional aspects of many controversial topics, including abortion, campaign finance, capital punishment, gun control, affirmative action, the scope of executive power, and same-sex marriage.
The Oxford Introductions to U.S. Law: Constitutional Law
Michael C. Dorf with Trevor W. Morrison
ISBN: 9780195370034
Paper, Sep 2010, 264 pp.
List Price: $19.95

The Oxford Introductions to U.S. Law: Constitutional Law presents an accessible introduction to the enduring topics of American constitutional law, including judicial review, methods of interpretation, federalism, separation of powers, equal protection, and individual liberties. One of the most important functions performed by the American Constitution and the more than two centuries' worth of cases interpreting it is the allocation of decision-making.

Professor Dorf and Professor Morrison frame many of these constitutional debates with this question of authority. When should courts rule that the Constitution takes some issue outside of the domain of ordinary politics? Should courts referee disputes between the branches of the federal government? Should they referee disputes between the states and the national government? Using what standards?

This introduction to American constitutional law critically examines the work of the Supreme Court of the United States, which has resolved thousands of constitutional controversies based on the shortest national constitution on the planet. The authors also look beyond the Supreme Court, exploring the arguments for and against judicial review and various versions of popular constitutionalism. 


Review:
“It is hard to imagine a better primer on constitutional law. Perfect for law students, it is also invaluable to an audience seeking an accessible and provocative window into the mysteries of American constitutional law. Rich in its comparisons with other judicial systems, lucid in its framing of the issues, it is simply tops in its genre.”
—Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law

About the Authors:
Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. Professor Dorf has written over fifty law review articles and several books on constitutional law and related subjects. In addition, he writes a bi-weekly column for FindLaw's Writ and is founder and editor of DorfonLaw.org. Professor Dorf serves on the editorial boards of Legal Theoryand Political Science Quarterly.

Trevor W. Morrison is Professor of Law at Columbia Law School. He teaches and writes in the areas of constitutional law, federal courts, and national security law. Professor Morrison was on leave from Columbia in 2009 while serving in the White House as Associate Counsel to the President. Professor Morrison received a B.A. in history from the University of British Columbia and a J.D. from Columbia Law School. He is a member of the American Law Institute.