Monday, November 29, 2010

Why Doesn't North Korea Attack Japan or China?

By Mike Dorf

In my latest FindLaw column, I draw some parallels (and also some distinctions) between the Yankees' contract negotiations with Derek Jeter and the violence on the Korean peninsula.  With the Jeter negotiations stalled, here I'll focus on the latter--obviously more momentous--situation.

In the column, I explore a number of explanations for the most recent attack by North Korea against South Korea, including the possibility that it is an effort to blackmail South Korea into once again providing large amounts of food and other aid.  Over the last couple of decades, periodic attacks from North Korea have led to a rush of diplomacy, which in turn led to aid packages for North Korea.  Although North Korea has tested missiles capable of reaching Japan, and shares a border with China, it has mostly restricted its outright attacks to South Korea.  Why?

One clear answer is vulnerability.  Seoul is 35 miles from the North Korean border and thus vulnerable to artillery fire (although perhaps not as vulnerable as people commonly assume).  By contrast, Japan could only be reached by ballistic missiles or from the air or sea, triggering defenses and presumably retaliation.  China is a different story.  The Chinese city of Dandong sits at the border with North Korea and has a greater-metro population in the millions, so North Korea could do considerable damage to China, but political factors apparently prevent that.

What exactly are those political factors?  One might assume that China's relatively good relations with North Korea stem from ideological agreement.  However, this seems like a poor fit now that China is the world's largest state capitalist system, and thus communist in name only.  China is North Korea's largest trading partner, which is a big deal for North Korea, though a drop in the bucket for China.  It is thus conventional to say that China has leverage over North Korea because the latter cannot afford to alienate the former.  To put the point crudely, in its dealings with China, North Korea is happy to accept bribes, while in its dealings with South Korea, North Korea resorts to extortion.

China also may be playing a strategic game, allowing North Korea to play the bad cop against South Korea, Japan, and the U.S., so that it, China, can collect chits from these other powers.  Witness the fact that every time North Korea instigates a crisis, the U.S. looks to China to rein in North Korea.  Presumably, that assistance comes with a price tag.

It is sometimes said that China has an interest in the survival and stability of North Korea because the collapse of the North Korean government and descent into chaos could lead to a flood of North Korean refugees into China.  I have my doubts about this theory.  China could probably absorb a few hundred thousand refugees and, if worried about more, certainly has the military manpower and the ruthlessness to seal its border.

All of the foregoing leads me to conclude that China currently gets very little out of its relationship with North Korea--a point that is seemingly confirmed by some of the cables in the latest WikiLeaks trove (as described here).  That in turn suggests that China could abandon North Korea at some point and that North Korea might then resort to other, more violent means of extracting goodies from China, a highly risky strategy to be sure, but one that might be adopted out of desperation and the general madness that characterizes the Kim regime.

Justice Stevens on the Death Penalty and Stare Decisis

By Mike Dorf

As reported in the Sunday NY Times, retired Justice John Paul Stevens has written a review essay in the NY Review of Books in which he explains why, over the course of his time on the Supreme Court, he came to think that the death penalty was unconstitutional.  (The essay is a review of David Garland's new book, Peculiar Institution: America's Death Penalty in an Age of Abolition.)  In a nutshell, when Stevens joined fellow centrists Potter Stewart and Lewis Powell to co-author the lead opinion in Gregg v. Georgia in 1976, he anticipated that the procedural safeguards that opinion required would be followed.  However, over the ensuing decades, as the Court turned more conservative, Gregg was watered down and other claims that had merit were rejected.

That, at any rate, is a nutshell of the Times story.  The actual essay says a good deal more, and is well worth reading.  Here I want to focus a bit on what Justice Stevens says and implies about stare decisis.  Justice Stevens complains that as new, more conservative Justices joined the Court, they did not respect precedents that tempered the administration of the death penalty.  Exhibit A is the Court's 1991 decision in Payne v. Tennessee, holding that a state could introduce victim-impact evidence at the sentencing phase of a capital trial.  Stevens thought, as he wrote in his dissent at the time, that this ruling was quite a departure from basic principles of culpability.  In his NY Review essay, he also laments the fact that Payne overturned Booth v. Maryland, decided just four years earlier, and South Carolina v. Gathers, decided just two years earlier.  Echoing Justice Thurgood Marshall's Payne dissent, he attributes the volte-face to a simple change of personnel.  Justice Stevens says that the willingness of new appointees to overrule Booth and Gathers reflected "
regrettable judicial activism and a disappointing departure from the ideal that the Court, notwithstanding changes in membership, upholds its prior decisions."

Because one of the then-new Justices who was instrumental in the Payne decision was Anthony Kennedy--who still sits on the Court--that sentence will likely be singled out as a none-too-veiled criticism of an active erstwhile colleague.  That's unfortunate, both because I doubt that Justice Stevens meant to single out Justice Kennedy and because I think that this is a weak piece of the Stevens essay.

Is there any reason why a new Justice has a special obligation to follow past precedents?  Justice Stevens does not point to one in his essay and, to my knowledge, the closest the Court has ever come to articulating this view was in Planned Parenthood v. Casey, in which the joint opinion (speaking for a majority on this point) said that "to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question."  Although not stated expressly, the argument there had the following implicit steps: 1) The three authors of the joint opinion (Justices O'Connor, Kennedy, and Souter) were all appointed by Presidents who were under considerable pressure to name Justices who would overrule Roe v. Wade; 2) Actually overruling Roe in those circumstances would have created the impression that the Court responds directly to political pressure; 3) That impression would undermine the Court's legitimacy; and therefore 4) The Court should avoid overruling unless the case for overruling is extraordinarily strong.

It's not clear that the Casey joint opinion was persuasive on this point.  Justice Scalia, for one, said in his dissent that politics shouldn't influence the Court, but that the joint opinion was arguing for the counter-intuitive proposition that the unpopularity of a decision counts as a reason to adhere to the decision.  I agree that this is counter-intuitive and thus probably not what the Casey authors had in mind, but then all that the Casey authors really were saying was that the Court's decisions should not be influenced by politics, which is a banality with which everyone agrees.  If so, however, then the Casey joint opinion provides no support for the proposition that new Justices appointed to overrule a decision have a special reason to adhere to it.

In any event, even if Casey did establish that somewhat odd proposition, it's hardly clear that it would apply in a case like Payne--and not just because Payne was decided before Casey.  The appointments of Justices Kennedy and Souter--the then-new Justices who cast the deciding votes in Payne--did not focus much attention on the death penalty.  Kennedy was a consensus appointee in the wake of the failed Bork nomination, and though Bork's nomination was contentious, that was not really because of the death penalty.  Likewise, Justice Souter's confirmation hearings generated some controversy, but mostly because of the fact that so little was known about his views.

There are a few crumbs in the confirmation hearings that relate to victim impact statements.  Then-Judge Kennedy was praised by some of his supporters for his own championing of victims' rights, but he was talking about support for living victims as witnesses and in other regards; Kennedy was asked no questions about victim-impact evidence as such. (Very long transcript available here.)  Then-Judge Souter was seemingly prompted by Senator Strom Thurmond to say something in favor of victim impact evidence, but Souter responded blandly by talking about how victims can testify as witnesses and should be eligible for state services.  (Another very long transcript available here.)  That's it.  There was no movement to overrule Booth with the Kennedy or Souter appointments and Booth was not, in any sense, a "watershed" ruling anyway.

In the end, I don't read Justice Stevens to be saying that a new Justice has a greater obligation to adhere to stare decisis than does a Justice who was on the Court when the earlier decision was handed down.  Thus, Kennedy and Souter are no more to blame for overruling Booth in Payne than were the other Justices in the Payne majority.  If Payne is wrong, it's because Booth was right, or because Booth was close enough to right that it didn't deserve to be overruled.  But that doesn't really have anything to do with the fact that new Justices played a role in its overruling.

Thursday, November 25, 2010

Thanksgiving 2010

On this Thanksgiving 2010, I just thought I'd thank my readers for your, uhm, readership.
PS  People often ask me what vegans eat for Thanksgiving.  The answer is mostly the same stuff you eat, minus the turkey corpse, plus some sort of grain-based meat, like this one.

Wednesday, November 24, 2010

Complaining about being the Beneficiary of Discrimination

By Sherry Colb

In my column for this week, I discuss the case of a heterosexual couple in the U.K. that is planning to sue for the right to enter into a civil partnership instead of a marriage.  The couple's claim is that the U.K. rule -- that only opposite-sex couples may marry and only same-sex couples may become civil partners -- violates its right to equality (as a straight couple).  The column takes up the question of whether such a claim is plausible, given that civil partnerships are quite plainly offered as a consolation prize for gay people rather than a true benefit denied straight people.  I examine the race and sex discrimination contexts for guidance on responding to this question.

In this post, I want to highlight two areas (not addressed in the column) in which a member of a privileged group might feel legitimately aggrieved by being compelled to occupy a putatively privileged status:  the man who wants to be a stay-at-home dad, and the man or woman who wants to have access to physician assistance in dying.

Take first the aspiring stay-at-home dad.  Men do have the legal option to leave their paid employment when they have small children, while their wives continue to earn money to support the family.  Indeed, some men choose to avail themselves of this option.  Nonetheless, they regularly confront confusion, suspicion, or even hostility when they respond to the question "What do you do?" by saying that they take care of their kids.  Some apparently view such a statement as an admission of failure as a man or as a bizarre choice that must reflect either self-esteem problems or a disordered marriage.  Women, on the other hand -- even those in high-powered professions -- can exit the work force without triggering such suspicion.  Indeed, some may even applaud their decision to provide one-on-one parenting rather than delegating to a nanny or other third-party care-giver.

At least part of this distinct treatment may come from the view that the public workplace is a superior zone that men should be glad to occupy, a position of power of the household that situates its other members as his subordinates, subject to his care and direction.  Why would a man willingly give up this position if there were not something wrong with him?, some might wonder.

The man's response might well be this:  I enjoy nurturing my chidren.  I am good at it, and it makes me and my children happy.  I object to the sex-role differentiation that leads people to question my choice as gender-inappropriate behavior, even though their question might come from the perception that I am entitled to "more" than what I have chosen as my occupation.  In this scheme, sex-role differentiation is destructive not only to the women, who continue to suffer subordination in the workplace, but to the men, who may view traditionally female nurturing work as desirable and well-suited to their skills and preferences.

Now consider the second example, a man or woman who is suffering from an incurable illness and wants to have the assistance of a physician in ending his or her life.  Such a person, at the present time, is out of luck if he or she lives in the United States (outside of Oregon, where physician assistance in dying is permitted).  A doctor, who is capable of ending a suffering person's life in a painless way, risks criminal conviction and incarceration if he or she helps a patient who seeks such assistance.

By contrast, a nonhuman animal who lives with a loving family can be brought to the veterinarian and euthanized if he or she is suffering from an incurable illness and is in a great deal of pain and distress.  (Sadly, a nonhuman animal who is healthy and happy may also be "euthanized" if his or her family grows tired of his or her company and opts for a lethal injection).  The reason for the distinction is not a greater concern for the suffering of nonhuman animals than for the suffering of humans; one need only consider the many billions of animals slaughtered for human consumption in what may not plausibly be called compassionate circumstances to see immediately that we do not value nonhuman animals more than we do humans.  The reason is precisely the opposite: that we permit people to kill animals for all sorts of reasons, because we consider nonhuman lives to be expendable.  It is because human life "matters" to people, in other words, that our laws prohibit physician assistance in dying.

Yet for the human who wants to die and who cannot bear another day of suffering entailed in living, this elevated human status is no favor at all.  For such a person, the recognition that some things matter more than life itself -- a recognition that we only too willingly extend to nonhuman animals, even when the things that matter more are tasty treats for humans rather than serious needs -- would be most welcome.  A person who wishes to die, in other words, does not feel comforted by the assurance that the reason he cannot is that his life is so worthwhile.  In constant pain, he wants the right to decide for himself (or to have a loved one decide for him, if he is unable to communicate) that death is sometimes more desirable than the alternative.  For him, then, equality with nonhuman animals would allow him the right to ease out of this world painlessly, a right denied him because he is human and denied the billions of animals slaughtered for consumption, because they are not.

Tuesday, November 23, 2010

Bailouts, Professors, and "Inside Job"

-- Posted by Neil H. Buchanan

Last Friday, the local independent movie house held a special showing of "Inside Job," the documentary film about the causes of the ongoing financial crisis. The viewing was followed by an audience Q&A led by Cornell Law Professor -- and Dorf on Law blogger -- Bob Hockett. Professor Hockett's discussion was extremely helpful to the audience, even though the first two questions were from (1) a person who thinks that we should go back on the Gold Standard, and (2) a guy who thinks that monetary policy is a Ponzi scheme. Defusing that kind of craziness -- which was rather unexpected in a college town -- was no easy task, but the entire session was great. It is a shame that only about a hundred people were able to join in the fun.

The film itself was excellent, in almost all respects. It was directed by Charles Ferguson, who also directed 2007's "No End in Sight," which explored the lies that led the U.S. into war in Iraq. Both films are unabashed advocacy pieces. Of the two, "Inside Job" was a bit less interesting to me; but I suspect that this is merely because it happens to focus on a subject that I have studied at some length. For those who have not studied the causes of the current crisis, this film offers a clear explanation of the elements of the crisis -- financial deregulation, credit default swaps, the role of ratings agencies, financial conflicts of interest, excess compensation, the high-risk culture of Wall Street (including disgraced former NY governor Eliot Spitzer discussing the use of drugs and prostitutes by Wall Streeters -- while quite aware of his, let's say, unique status in such a discussion), the inadequacy of the regulatory and legislative responses, and so on. It also makes people angry, in a good way.

There were, however, two areas in which the film's arguments fell short. The first was Ferguson's handling of TARP, the now-wrongly-reviled Trouble Asset Relief Program, aka The Bank Bailout. To its credit, the film makes it clear that TARP was enacted during the Bush presidency, not by President Obama. For someone who is unafraid to call out liars, however, it was surprising that Ferguson did not make a point of the Republican Congressional leaders' energetic endorsement of TARP. A film in 2010 that fails to point out the hypocrisy of people like John Boehner and Mitch McConnell, who rode populist anger about bailouts to electoral gains (and, in Boehner's case, a tearful embrace of the Speaker's gavel), is missing an important political phenomenon.

On the substance of TARP, moreover, Ferguson's argument was simplistic and dangerous. After accurately describing the basics of the program, Matt Damon's narration simply says that, after TARP, unemployment kept rising and foreclosures continued. On to the next subject! This is precisely the nonsensical reasoning that gives us arguments from politicians and ideologues that "the stimulus didn't work." Yes, it is true that the economy continued to get worse after TARP was enacted, but that does not mean that it was a bad idea or a failure.

As I discussed on this blog earlier this year, in "The Economic Catastrophe That We Avoided," the difference between the economy that we have today and the economy of 1933 (or worse) is TARP, the stimulus, the auto bailouts, and the Federal Reserve's interventions. It is true that the financial bailouts were mishandled politically, and that the Bush and Obama teams both failed miserably in setting conditions for receipt of the government's help. That, however, does not mean that TARP or its cousins were failures. Ferguson's cavalier dismissal of this important point seriously harms the public's understanding of just how bad things could have been without government intervention.

The second area in which the film's argument falls short is in its discussion of the economics profession. Ferguson correctly points the finger at the very large number of very prominent economists whose work promoted the ideas that financial deregulation was an unqualified boon to the economy and that bubbles were (and still are) impossible. He excoriates Larry Summers, of course. He also interviews lesser-known players like Frederic Mishkin, a former Fed governor, and Glenn Hubbard, one of Bush's former chief economic advisors. Mishkin ends up looking like a fool, and Hubbard provides a nasty little outburst that was a wrapped gift for a documentarian like Ferguson.

Having noted the important role that economists played in justifying the disastrous, bipartisan policies that led to the Great Recession, Ferguson sensibly asks why so many highly-respected economists were so wrong. If the problem on Wall Street was too much money for high-fliers, Ferguson apparently reasons, perhaps the problem in economics is greed as well. Ferguson does not claim that economists want to get rich to buy fast cars, drugs, and women. Anyone who has met an economist would laugh at such an idea. He does, however, go to great lengths to describe just how rich a person can become by writing papers and giving speeches that support Wall Street's bottom line.

The film does an excellent job of discussing the lack of professional standards governing disclosures of conflicts of interest in economics. Ferguson asks why economists who have been paid by Wall Street banks to write papers that support Wall Street's agenda are not required to disclose that fact. Various prominent economists tell him that this is absolutely no problem. When Ferguson points out that medical journals rightly insist that researchers disclose the sources of their funding, one Harvard economist is literally rendered speechless.

Ferguson, however, essentially leaves it at that: Summers, Hubbard, and others have made millions by being shills for Wall Street, which must explain why they did it. That is simply wrong. I cannot imagine that either of those men wrote what they wrote to become rich, or that they continued to write such things after having been seduced by the riches of Wall Street. They are true believers whose arguments are congenial to Wall Street. Becoming rich was incidental to their career paths. They sought career success in top-flight economics departments, and the rest fell into place.

The better question, therefore, is how it has come to pass that the economics profession is dominated by men (and it is still very much a boys' club) who believe such nonsense. Some of these guys still think that there was no bubble -- that the financial crisis was actually a rational, equilibrium response to economic fundamentals. And even those who will not say anything quite that crazy publicly are still unfazed by the manifest failures of their ideology.

The important dynamic at work in the economics profession is that it has come to be dominated since the 1970's by a very narrow viewpoint. If a person does not begin his theorizing by assuming that individuals rationally maximize their own utility, then that person is dismissed by economists as "not serious" or, even worse, a sociologist. (The horror!) This is not merely the most widely-accepted methodological starting point for economics. It is the only acceptable starting point. It is true that some economists have built successful academic careers by putting bells and whistles on the basic model, exploring assumptions, such as "bounded rationality" and other forms of cognitive or other "errors," that change the results of models. Still, the starting point is always the same. If everything that might lead one to conclude that markets are not perfectly efficient (and incapable of crashing) is merely a modification of the only acceptable model, then a person who wishes to be successful in the economics profession knows where to begin. And where one begins is all too often where one ends up.

There are some very good economists who, even within the skewed ideology of modern economics departments, have risen above market fundamentalism. Joseph Stiglitz, Paul Krugman, Robert Shiller, and Brad DeLong are reasonably well known examples. The question is why their voices are (accurately) considered to be deviations from the dominant norm in economics. The idea that the rest of the economics profession is doing what it is doing in the pursuit of million-dollar paydays is simply not a credible answer to that question.

But see the movie anyway. The errors noted here are nothing compared to the strengths of Ferguson's analysis.

Monday, November 22, 2010

Air Liberty

"Radiation ... You hear the most outrageous lies about it. Half-baked, goggle-boxed do-gooders telling everybody it's bad for you. Pernicious nonsense! Everybody could stand a hundred chest X-rays a year. They ought to have 'em too.”  --- Repo Man

By Mike Dorf

Over the weekend, Tobin Harshaw blogged for the NY Times on the controversy surrounding the TSA's implementation of the full-body x-ray scans at airport security checkpoints.  Among the authorities quoted and cited by Harshaw is yours truly, with a short excerpt from my January FindLaw column on the cancer risk associated with the machines.  Harshaw characterizes me as thinking that "the health concerns are highly exaggerated."  I'm not sure that's how I would have put it, although I did say in the piece that by any measure, the cancer risk is tiny.  For me, the most salient factor is that there's substantially greater radiation exposure from flight itself (due to cosmic rays with diminished atmospheric protection), as I explained in the column.

I received some email responses in the last couple of days pointing out that the official figures for the machines could be wrong and that the per-rem risks from the machines could be greater than the per-rem risks from cosmic rays during high-altitude flights because the former are concentrated in the skin.  Here I'll simply confess that I have no expertise in such matters.  My column was expressly an analysis of how to think about the issue, given the then-publicly-available numbers.  The closest I came to a contribution of my own was simple arithmetic.  And I expressed skepticism about the cost-effectiveness of the machines, all things considered.

Fast-forward to the current controversy, which is fueled at least as much by privacy concerns as by health concerns.  The proposed national opt-out day is an interesting example.  Having chosen the busiest travel day of the year as the time for opting out of the x-ray scanners, it's a little rich for the organizers to deny any "intent or desire to delay passengers en route to friends and family over Thanksgiving."  Really?  Then why choose a day when airport security lines will be at their longest and the nerves of passengers at their most frayed?  If there's no intent there's at least callous indifference.

To be clear--again--I'm not endorsing either the TSA's machines or the alternative of a pat-down.  Nor for that matter am I especially impressed with the fight-the-last-war mentality of the TSA more broadly.  But much of the awfulness of air travel these days is generated not by the government but by the private sector.  Remember leg room?  Remember when you could check a bag without a fee?  Was it not entirely predictable that the imposition of baggage fees would induce passengers to cram as much as physically possible into their carry-on bags and "personal items?"  These developments are almost entirely products of free market competition and the overall preference of consumers for low prices.  Even if one thinks that, on balance, airline deregulation over the last 32-some-odd years has brought net benefits, it's notable that many of the worst features of air travel today are exacerbated by the competitive pressures that deregulation unleashed.

People do complain about these aspects of air travel, of course.  So much so that it's a cliche.  But in this, our bizarrely libertarian moment, those complaints are taking a back seat to complaints about Big Brother.  And all of this leads me to ask a question from a place of genuine ignorance: Are the right-wing libertarians now frothing about the TSA the same people who, during the Bush years, were happy to red-bait anybody who raised  objections to indefinite detention, torture, etc?  And if not, where were they then?

There is, to be sure, a way to reconcile this combination of anti-government paranoia and hyper-patriotic McCarthyism:  It's okay for the govt to x-ray and/or pat-down passengers, so long as they're sufficiently Muslim- suspicious-looking.  Look for that viewpoint to make the list of right-wing talking points soon.  Oh wait, it's already here.

Friday, November 19, 2010

They Dreamed a Dream of Deficit Reduction: Unprincipled Cuts and Wishful Thinking

-- Posted by Neil H. Buchanan

The preliminary proposal from Erskine Bowles and Alan Simpson, the co-chairs of the National Commission on Fiscal Responsibility and Reform (the Deficit Commission), continues to dominate discussion among budget wonks and political junkies. In my post last Friday, I discussed the narrative that surrounds the release of any bipartisan plan to reduce the deficit: solemn nodding and hearty congratulations to the authors for their boldness, bravery, and responsibility in taking on such a grave, patriotic duty.

This was the reaction not just to the co-chairs' proposal, but also to a proposal released on Wednesday of this week by something called the Debt Reduction Task Force, which is part of another unknown entity called the Bipartisan Policy Center. Upon the release of that proposal, one group of deficit hawks quickly issued a press release saying "hats off" to the Task Force's co-chairs for "starting a more responsible discussion" about deficit policy.

As I pointed out last week, there is nothing difficult about any of this. Once you agree that "responsible" proposals can include politically dead-on-arrival components (for example, any defense cuts at all), then anyone can come up with a plan to reduce deficits with ease.

In my FindLaw column yesterday, I turned my attention from the media narrative about the co-chairs' proposal to a critique of its unprincipled approach to deficit reduction. Other than a few halfhearted nods toward protecting spending on good things like education and "the disadvantaged," the proposal really is just a bunch of ways to cut spending and raise taxes, with only the barest attempts (at best) to describe why any given idea makes sense. In other words, the co-chairs spend a great deal of time talking about things on which we spend money; but they do not expend any effort to determine whether we are spending the right amount of money on any of the items that they describe.

They would cut the budgets of Congress and the White House by 15% each. Why? Who knows? They suggest cutting the growth of foreign aid -- because, you know, the U.S. is so famously generous in its foreign aid -- to save $4.6 billion in 2015. How do we know whether that is money poorly spent? Even more ridiculously, they include $16 billion in savings in 2015 from eliminating all earmarks -- even though earmarks merely direct where money will be spent, without changing the total amount of money that will be spent.

The proposal that jumped out at me was the "Cut and Invest Committee," which would be "charged with trimming waste and targeting investment," by "de-authoriz[ing] outdated, low-priority and inefficient programs and recommend[ing] high priority long-term investments." From that bare-bones description, this could be something like my proposal for a Growth Budgeting Board, which would apply principled cost-benefit analysis to find long-term investments that the government could finance through borrowing, to raise future living standards. Unfortunately, the little evidence available in the proposal suggests that the "cut" part of the committee's title is much more important to the co-chairs than the "invest" part.

The easiest place to see these misplaced priorities is the plan to raise the gasoline tax to fund transportation improvements. A gas tax, of course, is a really good idea, on many grounds. The co-chairs, however, propose only a $0.15/gallon tax and then promise not to allow the government to spend even a dollar more than it collects from that dedicated tax on improvements in the transportation system: "fully funding the transportation trust funds and therefore eliminating the need for further general fund bailouts." ("Bailouts"? This is supposed to be two statesman avoiding demagoguery, isn't it?) Intelligently-planned infrastructure improvements should be limited neither by the funds collected by the gas tax, nor by knee-jerk efforts to avoid spending general funds on transportation or other projects, nor by concerns about the overall deficit. (The rest of the tax proposals are a story unto themselves, which I will set aside in the interest of both brevity and readers' sanity.)

It is hardly a secret that the real action in long-term deficits is in health care costs -- although one would not know that from most political rhetoric about "out of control spending" and such nonsense. To their credit, the co-chairs at least try to think about health care costs in laying out their plan. Unfortunately, they once again take a bizarrely unprincipled approach to their proposed cuts. For example, they suggest saving $54 billion from 2012-2020 by cutting spending on "graduate and indirect medical education." Perhaps there is a study somewhere that says that federal spending on medical education is too high, but color me skeptical.

Adhering to the political script, the co-chairs naturally included so-called tort reform in their proposal to reduce medical costs. (This must be included in the proposal, so that pundits can point out that the co-chairs were willing to take on political sacred cows -- in this case, offending a much-reviled source of fund-raising for Democrats.) They claim that this would save $64 billion over the next decade. Because the co-chairs do not describe how they would actually change medical malpractice laws, it is impossible to know whether that is a reasonable estimate. It strikes me as high, unless we are really going to make it much more difficult for anyone to win a malpractice suit -- even legitimate ones.

As Paul Krugman pointed out in a column last week, the most bizarre aspect of the co-chairs' proposal is the decision to completely punt on long-term health care cost savings. They would set overall targets for federal health care spending, capping growth in costs at the economy's growth rate plus 1%. If costs exceeded the caps, the President would have to propose and Congress would have to "consider reforms to lower spending." The possible reforms amount to increasing costs to patients or cutting payments to providers, although the proposal actually does suggest considering the adoption of "a robust public option and/or all-payer system in the exchange." I have not seen any of the gleeful deficit hawks jumping on that idea -- or, indeed, on any idea to cut health care costs. As one prominent budget cutter put it: "There is health care fatigue."

Even setting aside the vagueness of the long-term savings in health care costs, the co-chairs' proposal again simply fails to identify the real problem. If health care costs continue to rise, then shifting those costs from the federal government onto households and businesses is not a solution to the economic rot that is directly the result of spiraling health care costs. It is true that there is some point at which the beast can be starved, but there is no reason to believe that health care inflation could be choked off at a point where the economy is still alive.

Any serious long-term solution for the projected increases in the federal budget deficit begins and ends with a solution to health care inflation. Everything else is chump change. And this proposal says nothing at all about how to solve that problem. We can (and probably should) follow the co-chairs' suggestions to save $1.2 billion and $0.4 billion in 2015 by, respectively, "eliminat[ing] funding for commercial spaceflight," and "reduc[ing] unnecessary printing costs." That, however, is not where the action is. Maybe we will get over our "health care fatigue." If we are truly serious about saving both the budget and the economy, that single-payer thing will soon seem just a bit more thinkable.

Thursday, November 18, 2010

Brennan and Unstructured Balancing

By Mike Dorf

On Tuesday, Seth Stern--co-author of Justice Brennan: Liberal Champion--gave a presentation sponsored by the Cornell chapter of the American Constitution Society.  It was a lively session, and I came away from it eager to read the book.  After I do, I'll report back.

For now, I'll just make an observation inspired by an Adam Liptak article in yesterday's NY Times.  Liptak notes a growing sense of dissatisfaction--both on and off the Court--with some of the opinions of the Roberts Court for their failure to provide clear guidance.  Interestingly, the disagreement over how much of a duty the Court has to provide guidance for future cases does not break down along ideological lines.  Liptak discusses a number of factors that contribute to the lack of guidance, including the perceived need to secure unanimity.  Here, I'll just add a thought about Justice Brennan.

Although Justice Brennan favored rules in the First Amendment area, he was more broadly a balancer.  Partly that was a product of Brennan's famous coalition-building.  Just as efforts to attain unanimity by the Roberts  Court have led to some narrow and muddled opinions (as the price of suppressing disagreement), so Brennan often had to write narrowly and unclearly to get to 5.  Whatever the cause, the result was probably to reduce the long-term influence of Justice Brennan's opinions, because later cases would invariably involve at least some factual distinctions, and those distinctions could then be invoked as the basis for different results.

Two examples of Brennan's maddeningly imprecise methodology are Plyler v. Doe and Baker v. Carr.  In each, Justice Brennan recites a number of factors that lead him to conclude as he does, without saying which of the factors are necessary conditions, which are sufficient conditions, or how much weight is given to each factor.  The individual results may be sensible but they give the lower courts little guidance, and permit the Supreme Court itself in later cases to claim fidelity to the earlier precedent while deciding however the Justices want.

In this respect, Justice Breyer is arguably the closest heir to the Brennan methodology.  Although Breyer is a pragmatist where Brennan was a liberal, both favor the multi-factor approach.  Breyer's opinion last Term in Comstock v. United States describes five factors which "taken together" support the Court's conclusion.  There is no indication of how these factors combine.

Nonetheless, there is much to be said for the Brennan/Breyer multi-factor approach.  In many domains, it is often sensible to make an all-things-considered judgment without attempting to specify what weight each relevant factor receives.  And there are circumstances in law where this is true too.  Custody determinations based on the "best interests of the child" strike me as one.  Sentencing used to be understood this way before the move to (relatively) determinate sentences.  But in the domain of Supreme Court doctrine, all-things-considered multi-factor decision making has a substantial downside that should make it a methodology of last resort.  Brennan was a great Justice despite his penchant for balancing, not because of it.

Postscript: I say all of the foregoing about the sort of unstructured balancing typified by the cases discussed. Balancing can be much more highly structured, as for example in the European approach to civil rights and civil liberties.  (For a good discussion of the point, see works by Alec Stone Sweet or Aharon Barak.)

Wednesday, November 17, 2010

Debt-Financed Litigation and Law Firm Size

by Mike Dorf

On Monday, the NY Times reported on the growing trend of relatively high-interest loans being extended by major financial players to plaintiffs' lawyers as a means of funding litigation.  The story raises a number of interesting issues.

1) On the plus side, such debt-financed litigation enables lawyers who otherwise could not afford to front the legal costs to poor clients to do so.  It therefore enables the bringing of some meritorious cases that otherwise would not be brought simply because of the prohibitive cost of litigation.

2) On the minus side, the article notes how the combination of high interest rates and lack of up-front disclosure to clients of debt financing  means that clients can end up paying a very substantial portion of any recovery to lenders.  In addition, there are real concerns about client confidentiality.  Investors need to see materials about the case in order to figure out whether it's worth investing in any given case, but disclosure to such third parties then makes it hard for the lawyer and client to maintain that the material is confidential/privileged.

3) The Chamber of Commerce--which systematically favors defendants--predictably warns against the dangers of this sort of arrangement, but this is obviously self-serving.  According to several experts with whom I spoke, defense firms sometimes use debt financing too, but the Chamber does not seem at all exercised about that.  (Debt-financing works somewhat differently for plaintiff firms and defense firms.  Money is lent to a plaintiff firm on the expectation of levying against the eventual judgment.  Money is lent to a defense firm on the expectation of levying against the client's income-stream after successfully defeating a liability claim to cover up-front defense costs that the client can't pay all at once.)

4) One might wonder why sophisticated investors are doing this now.  The answer I got from those to whom I talked is that this is part of a larger trend of hedge funds and others looking for investments that are not in any way correlated to the overall market.  As we learned a couple of years ago, a seemingly safe hedge can go south when there's enough inter-connectedness in the economy.  (E.g., going short on some asset only hedges against the risk that the asset will decline if the counter-party to your short position is able to pay you when the contract comes due.)

5) Notwithstanding my parenthetical in point 3), debt finance seems to be more common among the plaintiffs' bar than among the defense bar.  But given the high interest rates, one still might wonder why it exists at all.  Wouldn't a better approach be for plaintiff firms to get bigger so that they can self-finance at lower cost?  Yet plaintiff firms tend to be much smaller than defense firms.  Here the answer seems to be that the top of the plaintiff bar does self-finance.  Most of the examples in the story involve tens or hundreds of thousands, not millions of dollars.  But high-end plaintiffs' lawyers can easily self-finance for such cases, and they do--either by themselves or by forming de facto joint ventures with other high-end plaintiffs' lawyers for particular categories of cases.  Because the dollar flow for plaintiffs' work is much less steady than for defense work--which often occurs within a firm that also has other steady work, such as tax, corporate, etc--the joint ventures are temporary, allowing the plaintiffs' lawyers to reduce their overhead in between cases.

Thus, the phenomenon of investor-backed litigation seems to occur somewhere in the middle of the market, not at the top.  Although it's probably true that, per 1), the clients are better off with the debt financing than they'd be without it, they'd be better still if they could go to a plaintiffs' firm that's big enough to amortize its costs across a wider swath of cases.

Tuesday, November 16, 2010

State Law and the Switching Problem

By Mike Dorf

My latest FindLaw column attempts to unpack what's at stake in AT&T Mobility LLC v. Concepcion, in which the Supreme Court heard oral argument last week.  Perhaps this is a fool's errand.  In her Slate piece on the oral argument, Dahlia Lithwick essentially described the case as impossible to understand, not least because it is inherently boring.  But I say, one web pundit's boredom is another's excitement.  Or something like that.

Anyway, I explain in the column that a central issue in the case is whether California has consistently applied its doctrine of contract unconscionability.  That kind of question, I note, has arisen in other contexts.  I focus there on two comparisons.

(1) In determining whether there are independent and adequate state law grounds to support a state court judgment, federal courts inquire into whether the state has consistently applied the rule it is applying in the particular case.  For example, suppose a state court says the state has a rule that appeals are only accepted if the losing party files within 30 days of the trial court judgment but that the state courts routinely excuse lateness in all categories of cases except cases involving federal civil rights.  That would be an inadequate state law ground.     

(2) I also discuss the concurrence in Bush v. Gore, in which CJ Rehnquist argues that state courts must stick close to the text of state statutes when construing those statutes in their regulation of Presidential elections.  

In all three instances, the putative federal requirement limits the ability of state courts to change the law from what it was or from what it appeared to be at some earlier time--and in each instance that's because a change is thought to connote a kind of insincerity: The state doesn't really think that unconscionability limits the impact on third parties of contractual class-action waivers; the state doesn't really enforce the procedural rule that led to the default of the habeas petitioner's claim; the state legislature didn't really say what the state court now says it said.  Rapid switching from one legal rule to another is a sign that the real rule is that one sub-rule applies to one class of cases and a different sub-rule applies to a different class of cases.

Or so the argument goes, anyway.  In an article a decade ago, Larry Alexander described the phenomenon of "switching," under which a jurisdiction continually enacts, repeals, and re-enacts some rule so that it will apply to one class of cases but not another.  I think he makes a persuasive case that, at least under certain circumstances, such switching means that the real rule is the meta-rule that explains when the state enacts, repeals, or re-enacts the rule.

Under normal circumstances, it is not possible for a legislature to enact, repeal, and re-enact a law with sufficiently precise timing to generate the desired outcomes in each case.  That's not true for courts, which formulate and apply their rules retrospectively, and that probably explains why we see the anti-switching norm in multiple contexts involving judge-made law but we have just about no cases of legislative rapid switching.

For legislatures, we normally assume that a change in the law reflects a change in policy rather than a disingenuous effort to disguise unequal treatment as a policy change.  But this raises the question of the relevant domain for equality questions.  Suppose A and B are identically situated.  Normally we would say it is unfair or unequal to subject A and B to different rules at the same time but that there is nothing unfair or unequal about subjecting A and B to different rules at different times.

This assumption that different treatment at different times does not raise equality objections is hardly a self-evident proposition.  Let's say I permit my 9-year-old daughter to cross the street without holding an adult's hand.  My 6-year-old daughter might say that's unfair (which is what she says about virtually everything that limits her freedom, but I digress).  It is a sufficient answer to say that there's no unfairness to treat the girls differently now; when the 6-year-old reaches the age of 9, she too will be permitted to cross the street without holding an adult's hand.

Now we could say that the same rule is being applied to both girls at both times: No child under 9 gets to cross the street without holding an adult's hand.  And that strikes me as an accurate characterization.  But to formulate the rule that way requires that we go up a level of generality from the way my 6-year-old perceives the rule now, which is "my sister gets to cross by herself and I don't."  That's also an accurate characterization.  Analogously, if the law changes from X to Y at time t, we could say that the meta-law hasn't changed.  It was always whatever passes the legislature and is signed by the Governor is law

My point is certainly not that changes in the law are necessarily prima facie denials of equality.  Rather, the claim is that what does and does not count as a fair baseline for measuring equality is not obvious.  We accept that it's okay for NY to apply different tax rates to X and Y if X earns $100,000 in 2010 while Y earns $100,000 in 2011 because NY can change its tax rates, even though it's not okay for NY to tax X and Y at different rates if they both earn $100,000 in 2010, even though they live in different towns.  (I'm assuming there's no town tax, just a state decision to treat two towns differently.)  We treat differences based on time differently from differences based on space.  More broadly, this is a version of the very old point (for which Peter Westen's classic article, The Empty Idea of Equality, is usually cited), that most of the work in the requirement that similarly situated people be treated similarly is done by figuring out what counts as similar.

Monday, November 15, 2010

India's Security Council Bid

By Mike Dorf

During his recent trip to Asia, President Obama endorsed the idea of adding India to the permanent members of the UN Security Council.  As the world's second-most populous nation and its most populous democracy, India certainly has as much of a claim to permanent membership on the UNSC as, say, France, but of course, the Security Council's permanent membership is not determined by a rational calculation of current worthiness.  Indeed, giving India a permanent seat on the UNSC would itself call into question the legitimacy of the other permanent members.

Even after the PRC was substituted for the nationalist government in Taiwan in 1971, the permanent membership could still be rationalized as a historical legacy: The victorious allies in WWII were the logical parties to guarantee the security of the post-war world.  China was one of those victors and given how close in time the Chinese civil war was to the end of WWII, and given the cooperation of nationalists and communists in fighting the Japanese in WWII, the PRC was a legitimate choice as the heir to the original China seat.  In lawyer-speak we could even say that the substitution of the PRC for the RoC was "nunc pro tunc" (retroactive).  But if India is added to the UNSC, then there will be no good justification for including France and the UK but not Germany and Japan, not to mention Brazil and Indonesia.

Of course, as a practical matter, the real obstacle in that "etc." is Pakistan and much of the Muslim world, which would view seating India on the permanent roster of the Security Council--and thus giving it a veto--as taking sides in the ongoing conflict between India and Pakistan.  Now there is quite a lot to be said for representing both sides to a longstanding important conflict.  There are good pragmatic reasons why the Security Council should not act unless there is a consensus for action among the world's major powers.  Thus, if the price of giving  India a permanent seat is also giving a permanent seat to Pakistan (or Indonesia, Bangladesh or Egypt), that may be a sensible decision.

Of course, so long as permanent members of the Security Council have veto power, the effect of each addition to the list of permanent members is to make Security Council authorization of any given action more difficult.  We will end up back where we were during the Cold War when the Security Council was largely impotent (except for authorizing action in Korea, due to the Soviet boycott at the time).

We might even worry that an indirect effect of broadening the Security Council's permanent membership would be to undermine international law.  The more difficult it is to secure Security Council authorization for action, the more likely countries that, at the margin, would prefer Security Council authorization, will instead simply act unilaterally.

These factors lead me to conclude that although the Security Council as it exists is a very flawed institution, widening its permanent membership would likely make it even worse.

Friday, November 12, 2010

The Easiest Job You'll Ever Whine About: Debt Commission Co-Chair

-- Posted by Neil H. Buchanan

Earlier this week, the co-chairs of President Obama's anti-deficit commission issued a draft proposal. That document is non-binding, but it is garnering quite a bit of attention. I plan to write both my FindLaw column next Thursday and my Dorf on Law post next Friday on the report, critiquing some of its specifics as well as assessing its gestalt. Here, I will focus on the first big lesson that we can learn from the release of the report: Being a co-chair of this commission looks difficult, but it is actually the easiest job in the world.

The two co-chairs of the bipartisan commission are Erskine Bowles, former chief of staff in the Clinton White House, and Alan Simpson, former long-serving U.S. senator from Wyoming. The press conference in which they announced their joint recommendations was a major media event. Both chairs sat grimly at a table and discussed their very, very difficult job. Simpson offered up gallows humor about how much everyone would hate them and their handiwork. Bowles talked about how important -- yet how unpleasant -- their work was.

It is difficult to take any of this seriously, however. We are talking, after all, about a commission that has operated under the radar for its entire existence this year, with all of the commissioners knowing that they would almost certainly produce nothing that would become policy. The 18-member commission must, according to the presidential order that created it (over Republican opposition, even though Republicans first proposed the idea), find a 14-vote super-majority for any final proposal even to be presented to Congress for a vote. The co-chairs' draft proposal is even less important, because it represents only the shared opinions of two men.

The best thing about being in the positions of Bowles and Simpson is that they could do no wrong. Anything that they did was guaranteed to be hailed as an example of "the grown-ups" entering the debate, making tough choices after taking a sobering look at our fiscal plight. The co-chairs' pronouncements were sure to be taken very seriously by people who view themselves as very serious. The op-eds practically write themselves. And sure enough, the editorial page of The New York Times immediately lauded the report as "a welcome antidote to the low-minded debate that dominated the midterm elections," a document that "frankly acknowledges what most politicians are too cowardly to admit — that deficit reduction will require shared sacrifice." The editors go on to credit the co-chairs for being daring, even while viewing their proposals as "sensible."

What nonsense! The co-chairs were in a no-lose situation. All they had to do was hew to the conventional wisdom of the Beltway discussion -- deficits require shared sacrifice, everything is on the table, now is the time to set aside partisanship, both sides are wrong -- and the co-chairs were sure to be cheered as champions of responsible, thankless leadership. So long as the recommendations included items guaranteed to offend various constituencies (higher taxes, Social Security cuts, military spending cuts, etc.), it would be viewed as a momentous achievement.

Even so, there had to be content, right? And surely the content matters, with difficult choices necessary every step of the way. Right? Actually, no. Because the federal budget has so many different items in it, and the tax system can be changed in so many ways, it is no achievement to collect items that might be cut to save money. The specifics will be lost in a blur, so long as they all sound politically fraught. The bigger items are especially useful, because their very size proves that they are popular -- which (in the dominant narrative) makes it all the more impressive that the co-chairs had the courage to face down the small-minded defenders of the status quo.

The co-chairs, and the commission more generally, thus operate under the best conditions imaginable. Everyone believes that the commission's work is important. Everyone will credit the commission for its statesmanship and service to the country. And every criticism of the commission's work must begin by acknowledging the monumental task that the commissioners faced. So long as the recommendations adhere to the conventional script of non-partisanship and shared sacrifice, there is simply no way that the narrative could be otherwise.

Given this favorable environment, what could anyone in this position hope to achieve, beyond the guaranteed credit for a tough job well done? There seem to be two possibilities. First, one might want to produce a document that is absolutely sure to be ignored immediately. Issue a proposal so extreme in its offense to political realities, and (at least as a somewhat related matter) so painful to so many actual people, that anyone with a pulse would know that the proposal is dead on arrival. Even such a negative reception would not shake anyone's belief that the commissioners had taken on a difficult task. Universal rejection would, in fact, simply confirm that the task was impossible in the first place. Comparisons to Sisyphus sure to follow.

The second strategy could be to issue a report so extreme that it simply provides cover to anything that might come next. Even better, the political cover would be bipartisan. Don't like that X% tax hike that the commission proposed? No problem. The real politicians are only proposing an (X - epsilon)% tax increase. Can't believe that the commissioners recommended cutting Y jobs from the federal payroll? No problem again. This is why any report has to cover every area of the budget and taxes, so that it can be characterized as extreme, even while framing the future debate. This is especially important for expanding the playing field to include things like Social Security. The co-chairs, we are all meant to understand, must be forgiven -- even praised -- for being willing to face the fierce attacks by petty defenders of every entrenched special interest. Everything must be on that table!

These two explanations are not, in fact, mutually exclusive. The commission can expect its report to be dismissed out of hand, even while knowing that it will frame the debate. This is even more true of the co-chairs' draft, which has the extra virtue of being advertised as trash-ready, even as the co-chairs can pose as beleaguered Cassandras.

So far, the script has run perfectly. Even people who disagree with Bowles and Simpson pay homage to their hard work. Everyone agrees that the conversation has been advanced. The fact is, however, that we know absolutely nothing more than we did three days ago. It is no trick to take fractions of budget numbers and add them up to show how the budget could be cut. Anyone reading this blog could do it in less than an hour. (There are even on-line calculators sponsored by various groups of deficit hawks, supposedly designed to show the public how difficult the choices are.) If partisan political considerations are supposed to be set aside, as was the commission's mandate, then any combination of proposals is as good as any other. The co-chairs have done nothing but confirm that it is easy to adopt the pose of persecuted sage, while soaking up credit for showing various ways to inflict pain on the public.

Thursday, November 11, 2010

Timing Litigation

By Mike Dorf

Federal district courts have recently taken action on gay rights on three fronts: (1) Perry v. Schwarzenegger found a right of same-sex couples in California to marry; (2) Gill v. Office of Personnel Management and its companion case invalidated the provision of the Defense of Marriage Act (DOMA) that denies federal recognition to same-sex marriages that are legal under state law (there Massachusetts); and (3) Log Cabin Republicans v. United States invalidated Don't-Ask-Don't-Tell (DADT).  Each case is currently pending on appeal.  The issue presented in each case will probably make it to the Supreme Court within the next few years.  Does the order in which they arrive matter?  Possibly.

Let's begin by considering Perry and Gill. In at least one respect, the respective pro-gay-rights arguments in the two cases contradict one another.  An important part of the challenge to DOMA in Gill relies on the proposition that domestic relations are a matter for state law.  Yet the core of the argument in Perry is that the federal Constitution constrains state law.  Thus, when persons opposed to same-sex marriage say that the People of California should not have their judgment (as reflected in Prop 8) disturbed, the proponents of a right to same-sex marriage point to Loving v. Virginia (which invalidated state anti-miscegenation laws) as evidence for the proposition that state power to define marriage is not unlimited.

Suppose that the Supreme Court decides Perry first.  If the Court finds a federal constitutional right to same-sex marriage, that will effectively resolve Gill as well, because it will mean that the federal definition of marriage in DOMA is unconstitutional as a denial of equal protection, quite apart from any infringement of state sovereignty.  On the other hand, if the Court rules against the plaintiffs in Perry, it is quite possible that it will rely on arguments about the importance of leaving the states the freedom to control the definition of marriage.  If so, those arguments could then be turned around in favor of the plaintiffs in Gill.

But now suppose the Court decides Gill first.  If the Court accepts the federalism argument as a basis for invalidating DOMA Sec. 3, then that argument could be turned around and used as a basis for rejecting the substantive claims in Perry.  Conversely, if the Court rejects the federalism argument in Gill, that could be used to support the substantive claims in Perry--although the point would hardly be a slam-dunk.  One could think that the federal government gets to define the terms of federal statutes for federal purposes (and thus think that DOMA Sec. 3 is valid) but also think that the states have primacy with respect to marriage for their own internal purposes.

Accordingly, it strikes me that gay rights litigators ought to do everything in their power to get Perry to the Supreme Court before Gill.  It's possible to imagine any combination of outcomes in the two cases, in either order, but it seems that the result in Perry is substantially more likely to be useful in Gill than vice-versa.

What about Log Cabin Republicans?  That case, of course, is not about marriage.  Still, it's in the same general area.  Now, in a couple of important respects, the plaintiffs' case against DADT is especially strong.  First, whereas the claim for a right to marry is a claim seeking  acceptance (rather than mere "toleration") from the mainstream, the challenge to DADT is a challenge to a clearly discriminatory exclusion.  Second, national public opinion still disfavors same-sex marriage (though by smaller margins as time goes by), while a clear majority of Americans disfavor DADT.  Supreme Court Justices may say that such matters are irrelevant, but they certainly act as though they care about public opinion.  On the other side of the ledger we have the traditional deference the courts afford to the elected branches with respect to the military.

Although Log Cabin Republicans doesn't have the same relationship to the other two cases as they have to each other, there is nonetheless overlap.  In each case, the Court could be asked to prescribe a standard of scrutiny for laws drawing distinctions based on sexual orientation.  In each case, the Court could be asked to distinguish between status and conduct.  If one were thinking about the ideal legal strategy, one would want to bring the strongest case first.  The difficulty is knowing which case that is, given the competing considerations noted above.

Thus, I tentatively conclude that it's impossible to know whether it's better to bring Log Cabin Republicans to the Court before or after Perry and Gill, while it's probably better to bring Perry before Gill.  Of course, this sort of analysis would have been much more useful before any of the cases had been filed--at least if there had been serious coordination among the respective lawyers.  Now that the cases are all roughly at the same stage, the timing question is largely out of the lawyers' hands, although it's still interesting to speculate about the timing issues.

Wednesday, November 10, 2010

What's Wrong With Routine DNA Testing?

By Sherry F. Colb

In my column for this week, I discuss the case of United States v. Mitchell, which the Third Circuit has set to be argued en banc (before the whole court of appeals).  This case takes up the question whether federal law, which currently requires routine DNA sampling of people arrested for specified offenses (even before they have been tried and convicted) violates the Fourth Amendment right against unreasonable searches and seizures.  In my column, I consider the arguments made by the district judge (who refused to allow DNA sampling), including the copious data available in a person's DNA and the notion that people ought to be treated as "innocent until proven guilty."

In this post, I want to ask whether the Supreme Court of the United States ought perhaps to reconsider its overall commitment to the idea that people relinquish privacy when they either discard or voluntarily convey materials (containing highly personal information) to third parties.

In the case of California v. Greenwood, the Supreme Court held that people have no reasonable expectation of privacy in the garbage that they leave at the curb for collection.  As a result, police may -- without even triggering the protections of the Fourth Amendment -- pick up people's garbage and wade through it to find evidence or any sort of information they might find interesting.  This means, for example, that if you or your partner takes a home pregnancy test and throw it in the trash, a police officer can -- without a hint of crime-related suspicion -- retrieve that test and learn that someone in your household is pregnant.

If we imagine that police only go through garbage when they fully expect to find evidence of crime, then we might not worry about the "curious cop" scenario.  On the other hand, if the purpose of having the Fourth Amendment "cover" particular police conduct is a fundamental concern about abuse of power, it might be appropriate to demand some showing of suspicion (in the form of probable cause and a warrant, for example) before allowing a police officer to go through your trash, just as the officer must have probable cause to look around inside your home.

To return to DNA collection, it is now not that difficult to collect a DNA sample from people without having to take blood or a buccal swab (the two methods of DNA collection that at least facially implicate the Fourth Amendment right against unreasonable searches, even now).  People discard DNA wherever they go.  But so long as people are thought to have no reasonable expectation of privacy in the things that they discard or give away, it is difficult to see how existing Fourth Amendment doctrine can stop the FBI or state and local police from investigating individuals' most personal biological profiles from discarded hair or skin cells.  Indeed, police could probably obtain DNA from emptying a person's garbage, in which the Court has already said the individual has relinquished any prior expectation of privacy.

There are some cases that point in another direction, however, as I discuss in the column and as I have addressed in my criminal procedure scholarship (including an article in Stanford Law Review entitled "What Is A Search?").  Rather than utilizing these cases to support protecting DNA, however -- as the Third Circuit will seemingly have to do if it wants to affirm the district court -- the most principled way for the Supreme Court to protect such privacy would be to overrule Greenwood and recognize that we do in fact have a reasonable expectation of privacy in the things that we discard, such that mining them for information ought to require individualized suspicion and a warrant.  Whether the Court would be willing to take such a step is, of course, another matter.

Tuesday, November 09, 2010

Your Money or Your Laws

By Mike Dorf

According to a recent NY Times story, the incoming GOP majority in the House hopes to undermine the health care law by refusing to provide funding for key elements--such as IRS enforcement of the individual mandate.  The plan raises a number of interesting issues.

It might be useful to distinguish between two different versions of this tactic.  Under the "rider" approach, Congress passes a spending bill that has, as a rider, a prohibition on the use of funds for certain purposes, such as enforcement of the individual mandate.  House Republicans would be hard-pressed to get such a rider enacted because it would also have to pass the Senate, where Democrats have a majority, and even then, President Obama could veto it.  So, the rider approach could quickly lead to the sort of showdown/shutdown we saw in 1995.  Then, President Clinton was able to get the public to see House Speaker Gingrich and the Republican leadership as holding the budget hostage to their agenda.  Whether President Obama would have similar success in a confrontation with the new House GOP leadership remains to be seen.

Republicans are not restricted to attaching riders.  Presumably some elements of the health care law require affirmative appropriations for them to function.  As to these, the House could simply not act and not have to worry about getting the Senate or the President to go along.  But in practice, this will cash out no differently from the rider approach.  Congress needs to pass appropriations measures to fund the govt's operations.  Senate Dems and the President are unlikely to go along with any appropriations measure that either forbids spending on the health care law or omits funding for crucial elements of the health care law, so under either approach we have an impasse to be broken only through negotiations in the shadow of politics.

In some ways, the debate we are likely to see in the next few months will parallel the discussion in the later Bush years over de-funding the Iraq war.  The main differences are: a) Then it was Congressional Dems who wanted to use the power of the purse to change the direction of federal policy under a Republiccan President whereas now the parties are reversed: and b) The Republicans in Congress now are not as susceptible as the Democrats in Congress were in the late Bush years to a charge of lack of patriotism.  Republicans then could accuse Dems of refusing to fund the troops.  Dems now will need to find a way of making a similar charge against Republicans.  Look for one party or the other to try  to tie military spending to civilian spending so that the other party can then be blamed for not funding the troops.

Monday, November 08, 2010

Where the Sharia Comes Sweeping Down the Plains

By Mike Dorf

By now, most readers will have heard of Oklahoma State Question 755, which, having been approved by ballot initiative, is now part of the state Constitution.  But much of the public discussion has tended to ignore the actual language adopted.  It stipulates that Oklahoma courts
when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.  The courts shall not look to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law.  The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
What to make of this veritable constitutional law issue spotter of a law?  According to a Salon article, a Muslim group will be challenging the law in court on Establishment Clause, Separation of Powers, and Supremacy grounds.  Let's take a look at those challenges (and a few others).

1) Religion Clauses.  Both the Establishment Clause and the Free Exercise Clause forbid government from singling out one faith for special benefits or burdens.  Although there has been controversy over the extent to which the Religion Clauses permit government to favor religion over non-religion, and there has even been controversy over whether the government can favor monotheism over polytheism, there is virtually no controversy over the question whether government can single out Islam for unfavorable treatment.  It cannot.

But does OSQ 755 actually disfavor Islam?  It could be argued that the new provisions simply use Sharia as an illustration of the sorts of sources to which Oklahoma courts may not turn.  That argument strikes me as just possibly sufficiently plausible with respect to the provision's second reference to Sharia to form the basis of a limiting construction by the OK courts: Under this view, state courts can only look to domestic, secular sources to inform OK law.  But even with respect to this second invocation of Sharia, that's a big stretch.  What, after all, do the good people of Oklahoma have in mind by "other . . . cultures?"  Presumably, this means that there are some cultures that do not qualify as "other," and presumably these are Christian or at least non-Muslim.

Meanwhile, the first invocation of Sharia Law is clearly not just illustrative.  An Oklahoma court can look to the law of a sister state that incorporates Canon Law, Biblical principles or even the Bhagavad Gita, but not principles derived from the Koran or the hadith.

2) Separation of Powers.  Here the argument is trickier.  The core idea is that it violates the separation of powers for a legislature to tell a court how to exercise the judicial power.  But stated that way, the proposition is false, or at least quite overbroad.  After all, jurisdictional statutes routinely tell courts what cases they can decide.  And provisions like the Dictionary Act of the U.S. Code are exercises by Congress of the power to tell the courts how to construe statutes.  The separation-of-powers argument would thus have to be narrowed: A  legislature cannot substantively constrain the interpretive discretion of a court deciding a constitutional case.  In addition, a state legislature probably can't tell a state court how to construe federal law.  But the exact limits on legislative ability to mandate interpretive rules for courts are quite complex.

3) Supremacy.  Here we have a collection of no-brainers.  International law embodied in treaties is binding on state courts whether they like it or not.  Customary international law is generally regarded as part of federal law as well, and insofar as it is, it displaces state law, including state law disavowing international law.  Here the more interesting question arises if one accepts the heretical view--put forward some years ago by Curtis Bradley and Jack Goldsmith--that customary international law is law only as state common law.  If that's true, then states can supersede customary international law by state measures such as OSQ 755.

4) Full Faith and Credit.  The Constitution obliges states to give full faith and credit to the acts, judgments and records of sister states.  OSQ 755 appears to forbid Oklahoma courts from doing so where the sister state's law in turn incorporates Sharia.

5) Severability.  There are nonetheless some uncontroversially valid applications of OSQ 755.  For example, suppose a lawyer argues that the Oklahoma criminal code should be narrowly construed in some particular because experience in France shows that broad construction on this particular would be counter-productive.  If the court discounts the argument based on OSQ 755, that might be bad for Oklahomans, but it would not be unconstitutional.  So, given how much of OSQ 755 does violate the federal Constitution, should it be held invalid in toto or only insofar as particular provisions are invalid?

Friday, November 05, 2010

Elections, the Economy, and Alienating the Base

-- Posted by Neil H. Buchanan

In my FindLaw column this week, I argue that the supposed anger among voters about the federal budget deficit and federal spending was an illusion. That is, the anger was real, but shouting about the deficit and "big government" was essentially a primal scream about the weakness of the economy. To put it another way, if the national debt were a trillion dollars higher today (due to an appropriately-large stimulus package), but the unemployment rate had steadily fallen into the 6% range, people would be a lot less angry about a larger level of debt.

The bulk of the column expands on my claim that there is no credible economic case to be made that the recent increases in the deficits were bad, or that long-run deficits are bad per se, which means that voters' supposed public-spiritedness -- selflessly agreeing to give up on government-provided goodies, in the face of a clear economic imperative -- is based on nonsense. Even if some people truly view austerity as a moral imperative, they can base that belief only on some kind of twisted Calvinism, not serious economic analysis.

My position about the elections, then, is extremely reductionist. The economy is in terrible shape, and the public punished the party in power. End of story. All of the post-election spin about Obama not "getting it" (as "The Daily Show" parodied so well on last night's show) is yet more nonsense. Obama's other policy initiatives would not have polled badly if the unemployment rate had been lower.

I am reminded of my youth, when Jimmy Carter won the presidency in part by seeming like a nice, normal guy. He wore jeans (a big deal at the time). He smiled a lot. He walked down Pennsylvania Avenue on inauguration day, rather than riding in a limo. It all seemed great in 1976-77, when the refreshing change of a young outsider seemed to make all the difference. Four years later, when the economy was sinking even as inflation and interest rates were rising, suddenly his smile seemed pretty annoying, and all of the rest of his differences were under attack. It is sort of like basketball coaches who are called geniuses for coming up with a strategy that won a game by a point, when the losing team shot 7-for-20 from the free throw line.

Even if the reductionist view is correct, however, there are close races that almost surely turn on something other than the economy. Or, even if they are only close because of the economy, something else could have made a difference for the president's party. All of the post-election talk has been about how the Democrats were too far to the left, but all of the post-election polling analysis shows that the entire story was about who turned out to vote. Young voters disappeared, and older voters showed up in much larger numbers. The "enthusiasm gap" was very real, in every category of voters who trend for the Democrats.

Almost immediately after Obama was elected two years ago, he set the enthusiasm gap in motion. In a world where there was no imperative that he choose economic advisors like Larry Summers and Timothy Geithner, Obama chose economic advisors like Larry Summers and Timothy Geithner. In an environment that begged for quick and decisive action on the economy, Obama went for caution and underwhelming force. I am not among those who thought that Obama was foolish to make health care reform a priority, but he chose to pursue it in a way that was guaranteed to deflate people who cared about the issue.

One of the controversies that arose during the presidential transition in 2009 was Obama's decision to invite the anti-gay evangelical minister Rick Warren to give the invocation at the inauguration. As I argued on this blog (in three consecutive posts, the most pertinent of which was titled "Be Nice to Your Friends"), Obama was engaged in a dangerous game of poking his finger in the eye of some of his most ardent supporters. At some point, I noted, times would become difficult for Obama; and he would need his friends to rally by his side. Certainly, he could not expect Warren's flock to come to his defense.

I am not saying that it took great insight on my part to make that particular prediction. It was very clear, however, that Obama simply thought that there was a larger upside to reaching out to the mythical middle. This was especially foolish in the context of an American political truism that mid-terms are all about turnout. If there was to be any hope to minimize the near-inevitable losses by the in-party, then it would be essential to bring out the people who made Obama president. Yet even after only a year of Obama's presidency, a prominent gay rights activist said (and I am quoting from memory here): "Barack Obama is a 'fierce advocate for gay rights' the way I'm a ladies' man." Obama then decided to make it worse this past summer, when his spokesmen said that people on the left needed to be drug tested, because their disappointment with Obama was utterly baseless.

The difficulty in my argument is that there really is something dangerous about kowtowing to a radical base. George W. Bush's presidency was (by Karl Rove's avowed design) all about feeding the base. The disgusting Terry Schiavo spectacle and the stem-cell research controversy are just two examples of decisions by the president to ignore the clear majority opinion on issues, to keep the religious conservatives happy.

The difference, of course, is that Obama's continued decisions to alienate his base were not actually popular with the elusive independent voters. Don't-ask-don't-tell is very unpopular. Environmentalism is very popular. Insurance companies and banks are very unpopular. Yet in each case Obama managed to take positions that disappointed his base, while doing nothing to curry favor with swing voters (or, obviously, reaching consensus with Senate Republicans). Put more simply, Obama's base is not radical, compared to the middle of the country. (By definition, of course, they are to the left of the country, on average. There is, however, no meaningful equivalence between Bush's base and Obama's in terms of holding radical ideas -- in degree or in kind.)

The White House is now apparently even talking about giving up the fight on extending the Bush tax cuts for the wealthiest Americans -- a fight that they should be eager to take to the voters. To a certain degree, this is, as Professor Dorf argued yesterday, "generally characteristic of the two parties: Democrats try to hedge and win by losing, while Republicans go for the jugular and win by winning." Yet Obama's take-'em-for-granted strategy seems a new low in this sad tradition. He has either become an inept politician, or he really is not who he led his base to believe he was. The evidence continues to mount that it is the latter.