Some Thoughts -- Both Personal and Otherwise -- About Same-Sex Marriage

-- Posted by Neil H. Buchanan

"Did I say hooray?" Professor Dorf's post analyzing New York's Marriage Equality Act was appropriately celebratory. With the initial surprise now giving way to deep satisfaction, attention has turned to what it all really means, who deserves credit for this historic turn of events, and what can be learned for other major political battles.

One bittersweet aspect of the new world in New York involves thinking about all of the people who did not live to enjoy the spoils of victory. Thousands of people died before their time, never imagining that marriage would have been an option for them during the course of a full lifetime. (One such couple was Gabriel Casuso, who died in 1988, and Kevin Buchanan, who died in 1991. It is a joy to imagine how those two men, who would now be in their mid-50's, would have celebrated the right to have their relationship recognized by the state as a marriage.) As The New York Times columnist Frank Bruni pointed out, however, the AIDS crisis was a central part of the process that made the recognition of same-sex marriages possible.

Bruni's persuasive argument is that standing up for civil rights required being willing to out oneself. Before AIDS, even in the post-Stonewall era of gay activism, it was still too tempting to stay either in the closet or, at least, to decide not to make waves. When it became a matter of life and death, however, the calculus changed. It was necessary to stand up and make noise, simply so that fewer people would die. The sad irony, therefore, is that the deaths of so many men -- men who would have loved to have their love recognized by the state -- was a key component of making the new reality possible. A counterfactual history in which they all lived quite possibly would not have seen the civil rights gains of the past few decades.

One of the more remarkable aspects of the winning glow is the stories of how straight people made peace with the notion of gay marriage, and with the entire notion of homosexuality. In Maureen Dowd's most recent op-ed, she related the following story from Governor Cuomo: “A father, maybe 60 years old, came up to me and said, ‘You know, I have a gay son, and I never really accepted him and I shouldn’t have needed you to tell me that it was O.K. to accept my own boy. But I did.’ ”

A key result of this political process, therefore, was the large numbers of people who discovered that they knew someone who is gay. (For what it is worth, however, not everyone was so reluctant to accept reality. In my family, the response to Kevin's announcement that he was gay was, "Well, obviously. And ... ?") This made the gay rights struggle more like the struggle for women's rights ("Think of how this will affect your wives, daughters, and nieces"), where "othering" does not work as it does for racial and other differences in a segregated society.

Finally, in the rush to spread around the credit for this civil rights breakthrough, it is worth remembering just how important it is to have a crazed, unreasoning opponent. As the humorist and lesbian activist Kate Clinton pointed out several years ago, the person most responsible for making gay marriage a reality is arguably Pat Robertson, the televangelist. In their never-ending search for wedge issues, Robertson and his kind grabbed onto gay marriage as a threat to all that is good and decent.

As Clinton noted, plenty of gays, and progressives more generally, were initially ambivalent about the idea of fighting for marital rights for gays. Nearly everyone I knew thought (circa 2000) that gay marriage would never happen, and that it probably did not matter much, because marriage is hardly a perfect institution. It was only when the wingnuts really started to push the issue that we even started to think about the practical aspects of being married (the property and inheritance issues, the hospital visitation rights, and so on), much less the dignitary rights that still attach to the much-maligned idea of marriage. In a weird sense, we needed to be told that this was worth a fight.

The tide of history is clear. Even Obama's "evolution" will be complete sometime soon. There will be more fits and starts, but there is no going back. We should thank the heroes, appreciate the useful flaws of our foes, and take a moment to remember those who are not here to enjoy the victory.

We're Back! Former FindLaw Columnists Move En Masse to New Site: Verdict

By Mike Dorf


From 2000 through the end of 2010, I wrote bi-weekly columns for FindLaw's Writ. FindLaw then discontinued the publication and since January I have received occasional inquiries about whether it would be revived. Today I am delighted to announce that the answer is basically yes--at a new home.

All ten of the former Writ columnists are now writing for Verdict, a new online publication run by the free legal research website Justia.  Verdict contains archives of all of our old columns, going back to 2000 in the case of those of us who started at Writ that long ago. Three of the ten Verdict columnists are also DoL contributors: Neil Buchanan, Sherry Colb, and yours truly. Our Verdict author pages are, respectively, here, here, and here.

In substance, Verdict will operate much like Writ did, although it will be more tightly integrated with social media and otherwise updated to reflect the changes in online publications over more than a decade. But we'll still be providing somewhat-longer-than-blog-post-length commentary on legal and policy issues. For the Justia columnists who are also DoL contributors, I'll also be running accompanying blog posts exploring related issues, as appropriate.

Verdict is already up and running. Today's issue features a column by Sherry discussing the Supreme Court's recent ruling (in J.D.B. v. North Carolina) that there may be circumstances in which a minor suspect, in virtue of his youth, is entitled to Miranda warnings even though a similarly situated adult would not be entitled to the warnings. The dissenting Justices complain that the decision will unjustifiably sacrifice the valuable clarity of the Miranda rule. Sherry argues that this concern is insincere, in light of those same Justices' willingness to muddy the Miranda rule's clarity when doing so disadvantages suspects. Give it a read.

Finally, I'd like to say how grateful I am to FindLaw for having given me a platform for me to express my views to a wide audience for over a decade. I very much hope that DoL readers share my excitement that Justia has picked up the baton and created Verdict.

Violent Video Games: Present, Past, and Future

By Mike Dorf

The Supreme Court's decision in Brown v. EMA--invalidating California's law barring the sale of violent video games to minors absent parental consent--produced four opinions.  Here are a few thoughts on each.

1) Justice Scalia wrote the majority opinion for himself and Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  So much for any notion that women would be more sympathetic to the regulation of violence than men would be.  All three female Justices voted the most free-speech libertarian position.  Tiny sample size? Of course.  I'm just saying . . . .  Meanwhile, Scalia and Kennedy breaking liberal here is not really a surprise. Each one (and especially Kennedy) has a pretty strong free speech libertarian streak.  This has been known since 1989, when they both joined the liberals to strike down the flag-burning law in Texas v. Johnson.  As for substance, the majority opinion makes considerable use of the Cato Institute brief, which pointed to prior instances of misplaced hysteria about media corrupting the youth--movies, comic books, television, music lyrics, etc.

2) Justice Alito, joined by CJ Roberts, concurred in the judgment on the ground that the California statute is unconstitutionally vague, but in many respects the opinion reads like a dissent. Alito's (de facto) dissent is not really surprising. The majority relies heavily on United States v. Stevens, from which Alito was the lone dissenter, but given that CJ Roberts wrote the majority in Stevens and wrote another strongly free speech opinion earlier this term in Snyder v. Phelps, one might wonder what he's doing with Alito here.  The answer, I think, is that CJ Roberts has a much narrower view of the free speech rights of minors than of adults, as evidenced by his opinion in Morse v. Frederick, the "bong hits 4 Jesus" case.


3) Speaking of the rights of minors, Justice Thomas goes way further to deny them.  Adopting an originalist methodology, he says that when the First Amendment was enacted, no one had a right to speak to minors, without the consent of the minors' parents. So he dissents.  Note that this theory would validate a law banning the sale of any and all books, magazines, etc., to minors, absent parental consent. Now, I'm not an originalist of any flavor, so maybe it's not my place to raise this objection, but it does strike me as highly peculiar to inquire into the 1791 understanding of the First Amendment in a case involving California rather than the federal government. States are bound by the First Amendment only because it is "incorporated" by the Fourteenth Amendment.  So I would think that Justice Thomas's inquiry into the scope of minors' rights circa 1791 only makes sense, even on originalist premises, if the public meaning of the Fourteenth Amendment as of 1868 was that it incorporated the Bill of Rights as the Bill of Rights was originally understood, rather than, say, incorporating what people in 1868 thought the Bill of Rights meant, or what people in 1868 thought that people in 1791 thought the Bill of Rights meant.

4) Justice Breyer also dissents. It's no real surprise that he broke conservative. With a long appendix of studies showing harmful effects of video games, Breyer's opinion is reminiscent of much-earlier opinions by Felix Frankfurter and others, who regarded free speech claims as no less susceptible to balancing against other interests than other sorts of claims.  In 1918, Oliver Wendell Holmes, Jr. wrote in a letter to Learned Hand that, in his view, "freedom of speech stands no different from freedom from vaccination." Breyer isn't quite there, but his willingness to defer to government expertise makes him probably the most statist Justice on the current Court, a title that belonged to CJ Rehnquist prior to his death.

Finally, I'm not surprised that no one gave much consideration to my suggestion that the case really presents a question about whether participatory virtual reality games are best understood as speech or as non-expressive conduct analogous to shooting a toy gun. The issue wasn't presented by the cert questions. Still, I take some comfort from the fact that Justice Alito did suggest that video games that simulate reality could be very different from the sorts of violent amusements about which people worried in the past. However, he made that point in the service of an argument that violent video games are regulable speech, not that they aren't speech at all. Oh well. We're not there yet, but it's gonna be the future soon.

The Puzzling Insistence on a Non-Severability Clause

By Mike Dorf


During the last few days of negotiations over New York's same-sex marriage law, the swing Republican state Senators insisted on additional protections for religious institutions and individuals, as well as a "non-severability clause," i.e., a provision that states that in the event that any part of the law is held invalid, the whole law will be held invalid.  Here is the critical non-severability language in the new law: "If any part of this Act shall be adjudged by any court of competent jurisdiction to be invalid, the remainder of this Act shall be invalidated."

In contracts, a non-severability clause is sometimes called a "blowup" clause because it means that one defect "blows up," i.e., destroys, the whole contract. The core idea--whether in legislation or in private contracting--is that some seemingly secondary provision of the legislation or the contract is in fact vitally important to at least one party. By including a non-severability or blowup clause, that party ensures that he, she, or it won't end up getting the bitter without the sweet. A court left to its druthers might invalidate the secondary provision and leave the rest intact, but the non-severability/blowup clause ensures that if the secondary provision is invalidated--and thus the party who insisted upon it loses what he/she/it wanted--then the main provisions go down too.

With the non-severability clause, the Republican holdouts were trying to protect the religious exemptions.  However, as I see it, that effort was largely pointless.  Let's think about the reasons why the religious exemptions might be "adjudged . . . invalid" by a court. I can come up with two possibilities, one of which seems extremely unlikely, and the other of which seems remotely possible but self-defeating.  Allow me to explain.

We can imagine the religious exemptions being challenged as providing impermissible favors to religion.  That challenge would fail under the federal Constitution. Although the Free Exercise Clause, as interpreted by the U.S. Supreme Court in the peyote case, does not require religious exceptions, neither does the Establishment Clause forbid them.  (Justice Stevens once said that he thought that the Establishment Clause does forbid statutory exemptions from neutral laws for religious conduct, but he was alone in that view, he appears to have later changed his mind, and he's retired.)  Article I, Section 3, of the New York Constitution by its language forbids any "preference" with respect to religion, but this has not been interpreted to forbid denomination-neutral religious exemptions.  So there was no real need to worry about the religious exemptions in the Marriage Equality Act being invalidated on church-state separation grounds.

I suspect that the real worry of the holdout Republican Senators was that a court might say that the religious exemptions were inconsistent with equality. This does strike me as at least a barely legitimate worry. After all, New York family law does not specifically provide exemptions for religious institutions and their employees who oppose marriages on other grounds. E.g., if a church refuses to let out its facilities because of opposition to interracial (opposite-sex) marriage, or opposition to May-September (opposite-sex)  marriages, or whatever, the protections of the new law do not specifically shield the church. I doubt that a court would find that a church, other religious entity, or its employees would be compelled to officiate or sponsor any such wedding, but who knows? The exemptions in the new law even forbid the withdrawal of funding, and so it's conceivable that there are circumstances where a religious organization would lose funding for its stance on interracial marriage or interracial adoption but not for its stance on same-sex marriage.

So it's conceivable that a case could arise in which a judge could think that the religious exemptions to same-sex marriage but not other marriages deny equality in violation of either the federal or state Constitution. Such a judge would then invalidate the exemptions and--under the non-severability clause--be required to invalidate the whole Marriage Equality law.

But here's the thing: Any judge who thinks it's an unconstitutional denial of equality for a state to permit same-sex marriage with religious exemptions will almost certainly also think that it's a (much greater) denial of equality for a state to deny same-sex marriage entirely, which would be the result of a non-severability-based invalidation of the whole Act. Consequently, the non-severability clause will do its proponents no good. The moment the hypothetical judge invalidates the whole Act pursuant to the clause, the judge will find that the resulting state of affairs--no same-sex marriage--is unconstitutional (under the state or federal Constitution), and reinstate same-sex marriage as a matter of constitutional requirement rather than statute.

Thus, I conclude that the non-severability clause is basically pointless for its supporters and harmless for the rest of us.  Why, then, did Republican holdouts insist on it?  Here are three possibilities:

1) They didn't think it through the way I just have.  I judge this the most likely explanation.

2) They did think it through and reached another conclusion.  This strikes me as possible.  This area of the law is incredibly complicated so they could have just made an error in analysis somewhere.  Or, less likely { !  ;-) }, my analysis is wrong and theirs is right.

3) Whether or not they thought it through correctly or not, they never really cared about these exemptions or the non-severability clause, but were simply using them as a cover for opposition--and then the Governor and other supporters called their bluff.  I started out favoring this explanation, but upon reflection, I think the non-severability issue is such a technical lawyer's point that it's hard to see how anyone could have thought it would resonate with the public one way or the other.

Some Implications of NY's New Same-Sex Marriage Law

By Mike Dorf


Herewith, a few reactions to the passage last night of the Marriage Equality Bill:

1) Hooray! A great day for the Empire State.

2) Andrew Cuomo is now the front-runner for the Democratic Presidential nomination in 2016.  He already has fiscal conservative street cred. By 2016, the economy will have turned around and he can take credit for that. He spent political capital on the same-sex marriage issue and won, with some crucial Republican support.

3) The actions of the NY Republican Party during this debate were fascinating. The Republican leadership and the vast majority of Republican members of the NY legislature opposed legalizing same-sex marriage but nonetheless did not use their procedural leverage to block a vote.  Senate Majority Leader Dean Skelos deserves considerable credit for honoring his earlier commitment to bring the issue to the floor and for making this a "conscience vote" rather than insisting on party discipline.  I think there is a broader lesson there, because I don't believe that successful politicians of any party ever make important decisions like this without an eye on the political consequences. Here, it seems to me, Skelos was able to read the writing on the wall. He can see the generational divide on this issue and knows that in the long run there is just no angle in having his party seen as bigoted.  Political opinion is regional as well as generational, of course, so it will take some time to spread around the country, but eventually this issue will disappear from politics.

4) What will replace it? Ever since Nixon's "Southern strategy," the Republican Party has been very good at finding and exploiting social "wedge" issues.  First race. Then abortion. Then gay rights. Opposition to gay rights will soon (10 years?) be a non-starter, and unlike race, there will not be readily available ways to use the issue in a coded way. That's because on average, gay and lesbian Americans do just fine economically, so it won't be possible to favor formal equality while opposing programs that benefit the minority at issue--as conservatives have been able to do with respect to affirmative action and other matters that implicate racial politics.  They will continue to use race as a wedge issue, although its potency also diminishes over time, as America becomes less white.  (People like to talk about how white the typical Tea Party rally is, but the more important fact is how old).  Abortion will also remain a potent wedge issue.  Beyond that, as opposition to gay rights comes to be more of a liability than a valuable wedge issue, I would look to see the number 3 spot on the wedge issue hit parade increasingly filled with non-issues blown up to look like issues.  Examples in the relatively recent past include flag-burning; the "war on Christmas"; and various forms of personal attack (e.g., Kerry faked his war record; Obama was  "palin' around with terrorists;" etc).

5) Tomorrow I'll post a follow-up on the significance of the ways in which the marriage bill was amended before being enacted.

6) Did I say hooray?

AARP: Craven or Clever?

-- Posted by Neil H. Buchanan

The late Spring is usually accompanied by breathless news coverage of the Social Security Trustees' annual reports, which summarize the financial conditions of the Social Security and Medicare programs. The headlines almost always highlight the so-called "depletion dates," which are the years in which the various trust funds for the programs will reach a zero balance. In the last couple of years, those dates have been going down, because of the short-term effects of the Great Recession and its grueling aftermath: fewer tax collections, more payouts.

This year, the depletion date for Social Security (in the "mid-range scenario," the forecast using conservative assumptions that -- although not as extreme as those in the "high-cost scenario" -- are still decidedly less favorable than the experience of the last 50 years) was reported to be 2036, down from 2037 last year and 2038 the year before. Nothing surprising or dramatic there. What was interesting is that the report garnered only passing coverage from the major news organizations. (A quick search of the New York Times website, a few days after the report was issued, turned up only a news article about the Medicare side of the report, mostly because Medicare's financial forecasts are highly sensitive to changes in the law that might come from Republican efforts to de-fund or repeal parts of the ACA.)

In previous years, a change in the Social Security depletion date was cause for national primal screams, with politicians of both parties making baseless claims about Social Security's certain doom and its dire effects on future generations. This year, a big yawn. That is, in the scheme of things, progress.

It is worth noting, by the way, that the focus on the depletion date is misguided. As some analysts have noted, the effect of Social Security's finances on future generations -- even under the most orthodox of approaches -- is driven by the long-term gap (if any) between revenues and benefits. What none have pointed out (so far as I have seen) is that the depletion date might actually have no importance even on its own terms. That is, the depletion date represents the time at which (under current rough forecasts) there is no longer money in the trust fund to cover the difference between benefits and revenues. Under this year's forecasts, for example, starting in 2037 there would be only $77 of revenues for every $100 of promised benefits. Without a trust fund, there is no source from which we could cover the remaining $23.

Or is there? The standard assumption has been that the financing shortfall would trump the promise to pay benefits, so that retirees at that point would have to live on the lesser amount of money that concurrent revenues would cover. There is, however, a plausible argument that $100 in promised benefits is legally enforceable. If so, the federal government in 2037 would have to pay full benefits, funding any shortfall either by increasing taxes, cutting other spending, or adding to that year's deficit. (I spoke with a lawyer in one of the relevant offices, who said that the consensus was that full benefits would not have to be paid. That consensus is, however, evidently fragile, with no one feeling confident that there is a definitively right answer. In any case, the arguments on both sides are strong enough to make litigation certain.)

Moreover, as Bruce Bartlett pointed out recently, it would take the 124th Congress in 2036 about five minutes to pass a bill protecting Social Security benefits from a 23% cut. This would have the same effect as a lawsuit that required the government to pay full benefits, with the cost to be financed (as Congress then chooses) by tax increases, spending cuts, and/or increases in deficits. While such an outcome would deviate from the legal fiction that Social Security is a stand-alone program -- a fiction that I continue to believe is important to maintain -- this is simply a prediction that the depletion date would not result in the 23% cuts that are assumed under current analyses.

Given all of this good (or, at least, neutral) news hiding under the conventional wisdom about Social Security contributing to a long-term budget "catastrophe," "tsumani," "disaster," or "Armageddon" -- all terms that have been used recently, not just by pundits and journalists, but by academics in otherwise-sober scholarly papers -- one would think that now is the worst possible time for the defenders of Social Security to give ground. Even so, as I noted in a post last week, many Democrats have been preparing the ground for years to capitulate to Republican demands to cut Social Security benefits. Among my predictions about the things that Obama might sell out in order to win reelection, my second pick was Social Security. (My first pick was extending the Bush/Obama tax cuts for upper-income taxpayers past 2012, which still seems to be the most likely retreat.) While the arguments for cutting Social Security are just as weak as ever, Social Security seems to be the next place for Democrats to betray their principles.

In this context, one might think that AARP, the lobbying organization that focuses on elder issues, would be standing firm. With their proud history of standing up not just for current retirees, but for future retirees as well, it would make sense to see AARP using its considerable influence to wall off Social Security from misguided (and, in many cases, pretextual) attacks in the current debate over budget cuts. Yet the big Social Security news last week (again, in an environment where the release of the Trustees' annual report barely makes a ripple) was that AARP has decided to change its stance on Social Security benefit cuts. AARP has now announced that they might be willing to support benefit cuts, under some conditions, to "save" Social Security.

This was, indeed, huge news. Social Security's longtime attackers, such as Deficit Commission co-chair Alan "T*ts" Simpson, were delighted. Reports indicated that the internal debate at AARP was contentious, and they expect to lose membership over their decision. Ultimately, their long-time policy director, John Rother, won the day. Rother's argument sounded eerily Obaman (or, in the original, Clintonian), conceding the argument that benefits must be cut, but arguing that AARP needed "a place at the table" to make sure that the cuts were not gratuitously deep.

Rother's argument, in other words, was Obaman not just in giving ground on the underlying issue, but in offering a genuinely plausible reason not to be too rigid. In this view of the world, the enemy is the extremists who ask for everything and get nothing (or worse). There are crazies on the left, we are to believe, who are simply mirror images of Tea Partiers. Needless to say, I generally find this equivalence to be false and infuriating. The idea that holding the line on Social Security benefits, given the fundamental weaknesses in the arguments against Social Security, is somehow radical or goo-goo-eyed is preposterous.

All of this might suggest that AARP was simply overreacting to the current conventional wisdom, giving away the store in the vain hope that somehow they might save a few crumbs and maintain their credibility with the Beltway crowd. In the Clinton/Obama mold, this takes the form of starting negotiations by giving the Right more than it asked for, then giving away more and more as the process continues. If that is what AARP is doing, then they are cowards, or worse.

The good news, however, is that the AARP's announcement was accompanied by some very non-Clintonian/Obaman conditions: "Reductions in benefits should be 'minimal,' they should not affect current recipients and instead should be directed 'far off in the future,' and they should be offset by increases in tax-generated revenue." Means-testing is also off the table, according to these reports. Moreover, AARP continues to insist that changes in Social Security are not part of the debate over future deficits. They will only agree to changes to guarantee the program's long-term solvency (i.e., pushing the trust fund depletion date indefinitely into the future -- as it already is in the Trustees' moderate "low-cost scenario"), not to offset tax cuts for the wealthy.

I agree with those who worry that AARP's move will carry symbolic weight pushing in the wrong direction. Given that they have decided to "come to the table," however, I have to give them credit for being willing to take a principled, aggressive negotiating position. They are in a position of strength, both on the facts and the politics. They need not waver.

The Wal-Mart Case and the False Promise of Economics in Law

-- Posted by Neil H. Buchanan

Yesterday, Professor Dorf offered an analysis of the Wal-Mart decision, providing a useful summary of why the decision was a radical departure from previous practice, as well as describing how future plaintiffs might get around the ruling to pursue class actions -- most likely with smaller classes. He approvingly quoted a New York Times editorial concluding that the Court's decision would "increas[e] the cost and the stakes of starting a class action." This fits in well with the now-standard critique of the Roberts Court, that its decisions are decidedly friendly to big business, making it more costly (or even impossible) to bring cases against large corporations.

As many commentators have noted, the result in a case like Wal-Mart is that many meritorious cases will never see the light of day, because the stakes in each individual case are simply too low. This is a problem in any system with expensive procedures, a problem that can be handled in various ways, including small-claims courts, special adjudication systems (such as workmen's compensation claims), and so forth. The key is to try to bring the costs of justice into line with the stakes, to allow non-frivolous claims to be heard.

The justifications for keeping the courthouse door open depend upon one's point of view. From a classically legal standpoint, the goal is simply restorative justice: people who are wronged should be made whole, and those who have done wrong should not be allowed to keep their ill-gotten gains. From an economic standpoint, the idea boils down to setting incentives to guide behavior. A system of justice should make wrongdoing unprofitable, so that there is no incentive to do wrong, and it should allow people who have not done wrong to feel comfortable knowing that they can engage in transactions without worrying about being cheated. The system should, in that view, provide signals to all potential wrongdoers, so that they will know that there is nothing to be gained by trying to cheat other people.

Decisions like Wal-Mart, therefore, can be described as distorting the signals that would otherwise have been provided by the legal and economic system. Wal-Mart has essentially been told that it can get away with what it has been doing, because the people who claim to have been wronged have no effective way of gaining redress. Like so many other large enterprises, in so many other situations, Wal-Mart has been told that it can take billions of dollars from people, as long as it can figure out a way to do so in small enough chunks to make it pointless to sue. (As I said in my comment on Professor Dorf's post yesterday, and as his reply confirmed, I find it hard to believe the initial news reports suggesting that there is now no way to bring class actions under similar facts. Even if I am right about that, however, it is still likely that the higher cost of a post-Wal-Mart class action will prevent some meritorious suits from being filed.)

Shortly before I decided to go to law school, in my innocent days as a mere economics professor, I heard about a court decision with similarly perverse incentive effects. Without going into the details, the court held that a health insurance company that wrongly refused to cover medical costs could be held liable for no more than the amount that it would have paid in the first place. From a standard economic perspective, this no-punitives rule created a clear incentive for an insurer simply to deny all claims, on the theory that some fraction of patients would never sue, some would lose their cases for non-meritorious reasons (bad judges or juries, lost evidence, intimidated witnesses, and so on), and only a few would actually win. So long as the cost of in-house counsel was lower than the damages in the suits that should have been brought and won, the company would come out ahead.

Even as an economist who is skeptical of the excessive claims about the value of economic analysis in finding "the right answer," I remember thinking at the time just how crazy this sounded. "Don't lawyers know anything about incentives or efficiency?" I wondered. "How can we have a system that is designed to allow one side of a bargain to get away with what amounts to theft?"

Class actions, punitive damages, and other procedures are, in other words, important devices to allow the legal system to align incentives properly. And given that aligning incentives is the core idea behind economic efficiency, it would be reasonable to assume that people who believe that the legal system should be designed to maximize economic efficiency would want the legal system to allow class actions, punitives, and so on. Given that a commitment to efficiency is closely associated with those at the conservative end of the political scale, why would American conservatives push so hard against class actions and punitives?

One possibility, of course, is that there are different groups of conservatives, one committed to economic efficiency and others committed to other goals (such as originalism, plain meaning, or whatever). Conservatives are not a monolithic bloc, and it might simply be that the Roberts Court and its admirers have no time for efficiency analysis, no matter what their allies on other matters might desire.

Ultimately, however, I think the answer lies in the emptiness of the concept of economic efficiency itself. As I began to discuss in a post last week, the word "efficiency" has been drained of all meaning. Moreover, even the particular (and peculiar) concept of efficiency on which economists rely, usually referred to as either Pareto-efficiency or economic efficiency, is so elastic that it is possible to describe anything and everything as both efficient and inefficient. This is not merely matter of different people using the concept for different purposes in different contexts. In the same context, and for the same purpose, it is possible to specify an economic model that makes anything "efficient." (This is because of the "baseline problem," which I discussed recently here.)

It is possible, therefore, to describe the Wal-Mart decision as both efficiency-enhancing and efficiency-reducing, depending upon the model that one chooses to describe the situation. (The efficiency-enhancing argument could, for example, be bases on an argument to the effect that well-run companies should not be subject to being fleeced by opportunistic plaintiffs with too-easy access to the courts.) One can, therefore, be a big fan of the Roberts Court and think that their pro-business decisions are just dandy for efficiency purposes.

Using efficiency analysis in law ultimately leads nowhere. At best, it simply relocates all of the standard legal arguments inside an argument about model specification -- an argument that can only be understood by those who can navigate economic models. At worst, it leads people to believe that there are objective answers to questions that have no such objective answer. We cannot say whether the Roberts Court's pro-business decisions are increasing or decreasing economic efficiency, because they are doing both and neither. We can only say with certainty that those decisions are very pro-business.

Some Observations on the Wal-Mart Case

By Mike Dorf


Monday’s Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes is notable for multiple reasons. Here I’ll briefly address three.

1) Over the last quarter of a century, the scholarly interests of the legal academy have been drifting ever further from the concerns of courts. “Doctrinal scholarship,” in which legal scholars ask how various legal questions ought to be resolved by courts, has increasingly fallen out of fashion. Much of this drift is a healthy reflection of legal scholars bringing to bear a more diverse set of tools from related disciplines, such as history, philosophy, economics, statistics, psychology, and other fields. The work of the modern legal academy thus often reflects the professional norms of these other fields in which the scholars were trained--typically more descriptive and less prescriptive. On the whole, this means that whereas a generation or two ago a typical legal scholar imagined himself (and very rarely herself) as a kind of “shadow judge,” our perspective these days is much more external to the work of the courts. Nonetheless, despite all of this drift, legal scholars want to have influence. The Holy Grail is to write an article that becomes the basis for a new statute or a legal doctrine. Judged by that measure, the Wal-Mart decision crowns Richard Nagareda as an extraordinarily influential scholar. Both the majority and the four-Justice partial dissent repeatedly cite Nagareda on the key questions of the meaning of Federal Rule of Civil Procedure 23--almost in the way that an early-19th-century court would have cited Blackstone. This is bittersweet because Richard--whom I had the pleasure to meet only once--passed away well before his time less than a year ago.


2) Turning to the merits of the case, I want to register a tiny bit of faint praise for the majority opinion--intended to damn it, but not entirely. As yesterday’s highly critical NY Times Op-Ed pointed out, "the majority requires that potential members of a class show that they are likely to prevail at trial when they seek initial certification. In this change, the court has made fact-finding a major part of certification, increasing the cost and the stakes of starting a class action."

I agree, and in that important respect, the ruling is reminiscent of the Roberts Court’s most damaging adventure in civil procedure--the pair of rulings in Bell Atlantic v. Twombly and Ashcroft v. Iqbal (collectively called “Twiqbal” by civil procedure geeks like myself) that together imposed a “plausibility” requirement for a lawsuit to survive a motion to dismiss. Twiqbal took a procedural rule that had long been understood to impose a very low bar to getting a case off the ground, and interpreted it to require more than a mere peek at the merits. Wal-Mart does for--or perhaps we might better say Wal-Mart does to--Rule 23, what Twiqbal did for/to Rule 8.


Yet the move in Wal-Mart is at least internally coherent in a way that the Twiqbal rule is not. Both rules require evaluation of the facts, but at least in the class action setting, a court will hear evidence before making the class certification decision. By contrast, under Twiqbal, a court is authorized to dismiss an implausible complaint without hearing any evidence whatsoever.  I don’t intend this observation as a defense of the majority position in Wal-Mart, just as an observation that it’s not as crazy as Twiqbal.  (I told you this would be faint praise.)


3) I don’t read anything in Wal-Mart as foreclosing smaller class actions attacking particular firm practices alleged to be sex discriminatory. If I were a plaintiffs’ lawyer, I might start by attacking Wal-Mart’s requirement that any Wal-Mart employee who wishes to be considered for a management position--including being manager of a single store--go through the company's management training program. To qualify for that program, an employee must have “an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate.” The plaintiffs cited the requirement that store managers be willing to relocate as evidence of the company's sexist culture. As the partial dissent characterized the argument, "there is a risk that managers" considering whom to promote into positions that feed into store manager positions "will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men."


Perhaps, but I wonder whether a narrower suit, brought either as a class action or on an individual basis, might attack the willingness-to-relocate requirement directly. I haven't done the research, but I would not be surprised to learn that the "familiar assumption" that women are less mobile than men is, on average, true. If so, the requirement that applicants for promotion to store manager positions be willing to relocate would have a disparate impact based on sex, and could be challenged on that basis. Under Title VII, once plaintiffs have shown such a disparate impact, the burden would shift to Wal-Mart to offer evidence that the willingness to relocate is "job-related for the position in question and consistent with business necessity." I suppose it's possible that Wal-Mart could satisfy that burden by arguing that it wants all of its store managers available to move up the corporate ladder, but at least on the face of it, I have a hard time seeing why the willingness to relocate is important for the job of managing a store in which one already works, i.e., for a position that does not require relocation. Whether such a lawsuit would succeed or even be brought remains to be seen.

The Baker-and-Florist Objection to the Pending NY Same-Sex Marriage Bill

By Mike Dorf


In my post yesterday, I noted that New York State Senate Republicans who are either on the fence or opposed to the pending bill to legalize same-sex marriage in the state have sought a broader religious exemption than the one in the current version of the bill. I said that I regarded this opposition as insincere because the existing exemption is quite broad. One commenter proposed that the critics ought to be challenged to come forward with  what they really want in the nature of changes to the bill. After doing a bit of research, I found that a number of objections have focused on the absence of protection for individuals--rather than religious organizations--who, on religious grounds, do not want to participate in same-sex marriages.  In particular, a number of people have raised the objection that religious bakers, florists, and other merchants and purveyors of services might not want to provide their services for same-sex weddings.

My first thought was: Really? But then I found that the argument had even been voiced by a respectable scholar (e.g., here), so I decided to take it seriously--even though I still suspected that the politicians who are making this point must really have some other object in mind (like killing the bill).  Upon thinking about the matter some more, I concluded that including an expanded exemption for religious florists, bakers, and the like would tarnish the bill in at least one small way.

New York law already limits the freedom of florists and bakers to discriminate. The Human Rights Law, as amended in 2003 by the Sexual Orientation Non-Discrimination Act (or SONDA), forbids, among other things, places of public accommodation--including most businesses, like bakeries and floral shops--from discriminating on the basis of sexual orientation. So suppose a same-sex couple about to enter a domestic partnership under New York City law wants to hold a commitment ceremony that in every outward respect looks like a wedding. Let's say they call it a "Weding." They go to a stationer for Weding invitations; they seek a Weding photographer; they go to a baker for a Weding cake; and they go to a florist for Weding flowers. As I read SONDA, each of these people would be in violation of the state Human Rights Law were he or she to refuse to provide goods or services to the couple. Although the Human Rights Act contains certain exceptions for religious organizations, it--like the proposed same-sex marriage bill--provides no exception for individuals or businesses.

Thus, the proposed broadened exception that Republican State Senators are now touting would actually weaken human rights protection for same-sex couples in New York State. Is there any possible justification for doing so? Why is it okay to override the wishes of a religiously-motivated businessperson who objects to providing services to a gay couple who want to celebrate their "weding" (i.e., their domestic partnership)--as current law does--but not okay to override the wishes or a religiously-motivated businessperson who objects to providing services to a gay couple who want to celebrate their state-recognized wedding--as proposed by the objecting Republican State Senators? Is there any religious commandment that permits provision of services in the one case but not the other? Indeed, so far as I am aware, there is no religion on Earth that makes it sinful to bake a cake or arrange flowers for a same-sex couple's ceremony, regardless of whether that ceremony is called a wedding, a weding, or anything else.

Now, it's possible I'm mistaken in my underlying assumption that SONDA would already bar the sort of discrimination I've described. I have been unable to find any relevant public accommodations cases under SONDA, so one could imagine that if the issue were to arise, a court would say that the businesspeople in my hypothetical example were not engaged in sexual orientation discrimination in violation of SONDA. A court might say that refusal to provide services for the celebration of a same-sex commitment ceremony is not discrimination against gay people. This strikes me as far-fetched but not demonstrably more preposterous than the other sorts of things that people say in defense of what looks to me like simple homophobia.

In any event, the absence (so far as I can tell) of relevant reported public accommodations cases suggests a different lesson to me.   SONDA has been on the books since 2003, and New York City has recognized domestic partnerships since 1997. In a city with over a quarter of a million gay residents, one would think that if these two legal provisions led to real friction, we would have seen substantial evidence of it by now. Apparently there was a conflict of this sort once, in Canada. But on the whole, this is simply a non-issue. One could almost certainly count on the petals of one wedding lily the number of New York florists, photographers, bakers, and others whose reaction to the legalization of same-sex marriage will be anything other than "thank goodness for the extra business."

Thus, after reflection, I have confirmed my initial reaction to the baker-and-florist objection.

Same-Sex Marriage in New York and the Mostly False Choice Between Legislation and Adjudication

By Mike Dorf


As I write, New York appears poised to become the most populous American state to legalize same-sex marriage by legislation. The bill could pass as early as today or it could be derailed by an eleventh-hour stalling tactic of the Republican leadership. Late last week, Republican opponents of the bill were arguing that it needed more robust exemptions for religious organizations. I regard this as a delaying tactic (or worse) because the bill already makes clear that religious organizations will not be required to perform or grant their facilities for the performance or celebration same-sex marriages. Further accommodations could be imagined but to my mind they would be unwarranted: E.g., religiously-affiliated hospitals could be given the legal right to deny same-sex spouses the patient-visiting privileges that are accorded opposite-sex spouses. That would go too far because, as far as I know, it doesn't violate any religious doctrine to allow any particular person to visit the hospital bed of any particular patient. Accordingly, I interpret the bid for greater religious protection as some combination of stalling, political cover, and an attempt to confuse the public.

Suppose that the bill passes. That would be rightly regarded as a great and, in the scheme of things, a remarkably speedy victory for a civil rights movement. It took about two centuries from the dawn of the Abolitionist movement until something like full legal equality for African Americans.  It took over a century from the birth of the American women's rights movement (in the mid-nineteenth century) to full legal equality for women. The time from the birth of the gay rights movement to full legal equality, in New York at least, will thus have been just over forty years (if we date the movement to Stonewall).

In the aftermath of New York's legal change, we can expect any number of legal analysts to proclaim that the adoption of same-sex marriage by legislation demonstrates that there is no need for the courts to act in this area. Some of these analysts will be saying that they support same-sex marriage as a policy matter but that they don't think it's constitutionally required--and that's fine. I disagree in this instance: I think same-sex marriage makes sense as a policy matter and that its denial violates equal protection. But I certainly understand how one might favor some position on policy grounds but not think it's constitutionally required. For example, I think that federal funding for the Corporation for Public Broadcasting is a sensible policy but I certainly don't think it's constitutionally required.

However, some of the analysts who will say that the courts shouldn't recognize a right to same-sex marriage will mean something more categorical. They will mean something like this: As a general matter, basic legal changes in response to changes in social attitudes should be accomplished through democratic means, not through the courts.  Stated as a presumption--use democratic politics first and only turn to the courts when you're stuck--this may be good pragmatic advice. But based on past experience, I think that some people will mean the italicized lines as something more like an ironclad rule. If so, they will be underestimating the dialectical quality of the relationship between legal change through the courts and through more directly democratic means.

Consider interracial marriage.  In 1955, in Naim v. Naim, the Virginia Supreme Court upheld that state's prohibition on interracial marriage, partly on the ground that a majority of states had similar prohibitions.  The U.S. Supreme Court ducked the issue based on supposed procedural defects in the record.  Twelve years later, in Loving v. Virginia, the Court invalidated Virginia's anti-miscegenation law. What happened in between? As the Court noted in footnote 5 of its opinion, between 1952 and 1967, 14 states repealed their laws forbidding interracial marriage.

One can legitimately contest the normative significance of such intervening legal developments. Widespread and rapid changes in positive law demonstrate changing norms about questions of liberty and equality; unless one is a thoroughgoing originalist, such evidence of social norms looks like an important source for determining the content of open-ended constitutional protections for equality and liberty. However, one could argue that federalism points in the other direction: dissenting states, in this view, should not have to conform their law to the views of a majority of states.

However one resolves the normative question, there is little doubt that as a descriptive matter, legislative change often paves the way for judicial change, and vice-versa. The state legislative changes that inspired the Supreme Court's decision in Loving were in turn prompted by the changing moral and social landscape that resulted, in part, from the Court's earlier decision in Brown v. Board, in turn made possible by developments under the leadership of elected leaders (such as Truman's ordering, and Eisenhower's carrying out, of the desegregation of the armed forces).

Likewise, here. Same-sex marriage was on the national agenda since the early 1990s (partly as a result of state court decisions in Hawaii and Vermont) and it has gained momentum in recent years as a result of a mix of judicial decisions (Supreme Court in Lawrence v. Texas; Massachusetts, California, Connecticut, Iowa) and legislative action (D.C., Maine, Connecticut, and now perhaps New York), even in the midst of backlash by referendum (California, Maine, and the other states that voted down same-sex marriage in recent years). Just as it would be incredibly naive to think that the courts make their decisions unaffected by the political process, so too it would be mistaken to think that decisions of the courts do not affect the political  process.

What Will Obama Give Away?

-- Posted by Neil H. Buchanan

Wednesday's New York Times included an article about a U.S. Bankruptcy Court decision that invalidated the Defense of Marriage Act (DOMA). The decision's author, Judge Thomas B. Donovan, wrote that "no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple," and his opinion was signed by 20 of the 24 judges on his court (in the Central District of California). The House Republicans who are now defending DOMA in an appeal of a decision by the U.S. District Court in Massachusetts have decided not to appeal the Bankruptcy Court opinion, apparently on the implausible ground that "doing so would be prohibitively expensive."

As an advocate of gay civil rights, I view all of this as good news. Naturally, I view the possibility of legislation legalizing gay marriage in New York as bigger news; and whatever one might think about the Republicans' choice to drop the bankruptcy case, it does seem obvious that the Massachusetts case is the one that will land in the Supreme Court. Still, it is heartening to see such strong evidence of a growing consensus among public officials that legalized discrimination cannot stand.

I then started to think about DOMA itself, in particular the date of its passage, 1996. In addition to DOMA, 1996 also saw the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA, commonly known as Clinton's Welfare reform law, even though it was part of the Contract on America and was introduced by a Republican in the House), and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA).

That is quite a murderers' row! DOMA speaks for itself. AEDPA was mostly about habeas law, not the death penalty or anti-terrorism, and its effects have devastated criminal defendants ever since, especially the worst-represented among them. IIRIRA was blatant immigrant bashing. And PRWORA, although lauded even by many liberals for years afterward, only received its acid test when the economy went bad. Unless one views welfare reform as successful purely because fewer people receive benefits, no matter the need, then that law, too, has been a disaster.

President Clinton signed AEDPA on April 24, PRWORA on August 22, DOMA on September 21, and IIRIRA on September 30, 1996. As the timing indicates, Clinton's signing of those laws represents the fruits of his triangulation strategy, as he adopted Republican policies in the months leading up to his re-election. Even with a relatively strong economy and a very weak opponent, Clinton went out of his way to ignore liberal allies and attempt to woo implacable conservative opponents by signing these laws, even when the polls ran in the opposite direction. (There was support for the welfare reform law, but the particular version that Clinton signed was unpopular and could have been vetoed on the basis that it was projected to put several million children into poverty.)

Given that I have been calling Obama and his team neo-Clintonites and born-again triangulators for some time now (see, e.g., here), this raises the question of just what Obama has in store for next year. What will he do to prove that he is a "centrist"? What will be his particular version of what Rachel Maddow colorfully calls the "Punch the Hippie Strategy"?

We can expect variations on Clinton's "Sister Souljah moment," in which the president will find symbolic ways to distance himself from his most fervent supporters. Obama has certainly done nothing to take back Clinton's infamous line that "the era of big government is over," with Obama's bizarre and unilateral decision to freeze federal employees' salaries last Fall only one small example of his commitment to anti-government dogma.

But will there be something big and substantive? Something like DOMA, AEDPA, and so on? Something that would inflict damage for years, requiring untold efforts to mitigate the damage and repeal the laws (or have them declared unconstitutional)?

It is possible that all of the damage that could be done will have happened in 2011, rather than 2012, because of the House Republicans' decision to use the debt ceiling to get their way on everything (and because of Obama's apparent lack of a strategy to stop them). If there is still room to do so, however, what might Obama do to sell out during an election year? A few possibilities come to mind:

(1) He could endorse the Bush tax cuts and agree to make them permanent (and even make them worse). Notwithstanding the Obama team's claims in December 2010 that his deal to extend the Bush tax cuts through December 31, 2012, would be accompanied by a fierce campaign to end the upper-income tax cuts thereafter, he could easily claim next year that he has seen the light on trickle-down economics. As a bonus, he could agree to eliminate the estate tax entirely.

(2) He seems likely to attack Social Security. Everything that he has done regarding deficit policy to date has been setting the table for undermining Social Security in the name of saving it. Now that Medicare has again become politically toxic, we can expect Obama to make a big announcement about the importance of reforming "entitlements," along with some kind of plan to put Social Security on the road to repeal (most likely by means-testing benefits).

(3) He could endorse a Balanced-Budget Amendment. This would have the advantage of being politically popular without any immediate policy downside, because the process of passing the amendment would take some time. Obama could thus set the process in motion -- a process that, once begun, could never be stopped -- and reap the political benefits, while leaving future administrations (including his own, if he wins) to deal with the consequences.

(4) Why not get in on the fun of lawyer-bashing by agreeing to a big federal anti-lawsuit bill? There has already been plenty of talk from Democrats about how they now see the damage from (nonexistent) runaway lawsuits, so it would be easy to imagine Obama agreeing to some kind of bill that moves everything into federal court, then sets high barriers to win cases and low limits on payouts.

(5) Finally, let us not forget the possibility that he could give ground on the Affordable Care Act. Depending on the state of the campaign, there is no reason to suspect that Obama would hold the line on that law (which he embraced only late in the game, anyway). It is difficult to imagine the White House agreeing to full repeal, but it is quite easy to imagine major concessions short of that.

I am not taking bets on any of these particular predictions, but I do not see any of them as unlikely. The larger point is that Obama has shown a strong inclination to move right whenever he feels at all politically vulnerable (and sometimes even when he does not), taking his supporters for granted and hoping to position himself as a statesman above the fray. That always means bad things for anyone who does not want to see the political center move even further to the right.

The Efficiency/Equity Non-Tradeoff

-- Posted by Neil H. Buchanan

"Remapping Debate" is a new online journal dedicated to the idea that good journalism involves more than merely reprinting the press releases from official Republican and Democratic sources on an issue. Their shocking claim is that journalists must actually gather and -- gasp! -- intelligently assess the facts and arguments relevant to a story. Investigative journalists should, under this model, challenge conventional wisdom and explore all of the evidence with a skeptical mind. This is a definition of journalism that has all but disappeared, replaced by the idea that journalists are somehow biased if they challenge the conventional wisdom and dare to question baseless assertions by the spokespeople of the powerful interests in the world.

Earlier this week, one of Remapping Debate's reporters interviewed me about a piece that he was writing about the connection between economic growth and living standards. A recent article in The New York Times had repeated the claim that growth inevitably, at least over the long haul, raises living standards. Is that true? If it was once true, is it possible that it is no longer true? My recent posts on Dorf on Law expressing skepticism about the benefits of technological change (here, here, and here) apparently made me a worthy interviewee. The article was published yesterday.

During the interview, one of the topics that I discussed was the hoary notion of the "efficiency/equity tradeoff," an idea taught in nearly every Intro Econ class that suggests that a society can have relatively equal distributions of income only if it is willing to reduce the overall size of the economic pie. Back in the 1960's, for example, the Brookings economist Arthur Okun famously described the "Leaky Bucket" problem as one in which the mechanisms necessary to move income from one group to another would inevitably result in losses from, among other things, administrative costs of government transfer programs. In addition, the taxes and transfers necessary to enact such redistribution would "distort" incentives such that people would not work as hard as they otherwise would have.

Part of the problem with the Leaky Bucket analogy is its imprecise use of the term "efficiency," which I discussed in my post last Friday. The Leaky Bucket mixes together various notions of efficiency, from duplicativeness to reduced output, in a way that may or may not map onto any particular notion of "economic efficiency" (i.e., Pareto-efficiency). Still, the intuitive picture of a leaking bucket captured the idea that underlies the bipartisan neo-liberal agenda: government policy and "the market" are opposing forces, with the market poised to do its work if only the government would get out of the way.

Near the end of the article in Remapping Debate, therefore, I am quoted as saying that "the efficient modern economy that is so focused on growth is not giving us the results we need." What is missing from that quotation is my deliberate irony in using the word "efficient," as I was mocking the very notion that an "unfettered" economy was even a meaningful concept. (To be clear, I am not saying that I was misquoted or even quoted out of context. The journalist accurately described my argument, but without being able to capture in print my scorn at the broad misuse of the concept of efficiency.)

The efficiency/equity tradeoff is thus based on the idea that an economy can be more productive (of things measured in GDP) if the government leaves it alone. If we accept this non-Pareto definition of efficiency as the relevant measure of efficiency -- and why shouldn't we, given that Pareto-efficiency is an empty concept? -- we are left with the idea that we can choose between an economy that grows a little or a lot, depending upon how much fairness the government "artificially" imposes on the economy. (Sorry for all the scare quotes, but the terminology of orthodox economics is so embedded in the language, in such misleading ways, that it is necessary to highlight when words are being used in ways that are freighted with assumptions and special meanings.)

As a numerical example, we could supposedly step back and allow the magic of the market to create annual growth of 3% per year, or we could impose ("inefficient") redistributive policies that reduce growth to 2% per year. After a few decades, the less equal economy has more than doubled in size, while the more equal economy falls behind. (In 24 years, 3% growth doubles the size of the economy, while 2% growth leads to an economy that is only 60% larger.) With the larger economy, everyone can have more -- and even if wealthy people capture an outsized share of the higher GDP, at least everyone else can be better off than they would be in the more egalitarian society.

There are, of course, a lot of assumptions buried in that analysis, not least of which is the belief that the distribution of income has no effects on political decisions. (For a contrary view, see my recent review of The Trouble With Billionaires.) But what is most important, perhaps, about the efficiency/equity tradeoff is the standard assumption (at least among American economists and policymakers) that higher rates of growth really will improve everyone's living standards, albeit by unequal amounts. In other words, the assumption that "a rising tide lifts all boats" is very much at the core of the argument for choosing efficiency over equity.

The article in Remapping Debate, therefore, is absolutely on target in asking whether we can really be sure that economic growth (eventually) leads to higher living standards for everyone. As I point out in the article, it is tautologically true that higher growth means that there is more "stuff" being produced. What is not tautologically true -- or, it turns out, necessarily true at all -- is the belief that the resulting GDP-stuff will be shared in ways that make everyone truly better off than they would have been in a more egalitarian society. "There's more stuff for everyone" need not mean that everyone gets more stuff, only that they could have received higher living standards, if only the economy had been more egalitarian. Nice paradox.

In the context of the 1960's and 1970's, it made intuitive sense that "more stuff" would be shared by everyone, as average wages rose pretty much in tandem with GDP. Since about 1980, however -- not a coincidental date, I would emphasize -- GDP has continued to grow, but wages have not. We used to face a difficult empirical question: If we eliminate equitable policy A, will that lead to economic growth sufficient to leave the people who would have benefited from the equitable policy absolutely better off, even if they fall relatively further behind the rest of society? (There were also questions about leaving some people worse off in the name of helping larger numbers of people, but we can set those more brutal calculations aside.)

We now have proceeded through more than three decades during which we have dismantled or severely weakened a broad range of policies that were intended to produce more equitable income and wealth distributions, during which time all but the very highest incomes have remained essentially unchanged. (Any increases in incomes among the non-wealthy have been purchased by increased workloads, which raises other questions about how to measure living standards.) One supposes that it could have been worse. Still, what we have seen is that higher GDP has not led to higher incomes across the board.

We definitely have experienced the increases in inequality that are the inexorable result of choosing efficiency over equity. What we have not experienced are the higher living standards for all that are supposed to be our payment for making that choice. Why do we continue to believe that growth must ultimately be good for everyone?

When, If Ever, Is Voting Speech?

By Mike Dorf


My post yesterday mentioned but did not get into the merits of the dispute in Nevada Comm'n on Ethics v. Carrigan between, on the one hand, Justice Alito, and, on the other hand, the rest of the Court, speaking through Justice Scalia. They divided over whether the casting of a legislative vote is an exercise of the "freedom of speech" for purposes of the First Amendment.  Alito said it is; Scalia and the rest of the Court said it is not.  Who's right?

Before answering that question, it's important to clarify why the question matters. The Supreme Court's cases sometimes appear to say that whether a person intended to speak is not relevant; what matters is whether the government, penalizes people because of the message they communicate.  Thus, a law that targets the communicative element of flag burning violates the First Amendment (as the Court held in Texas v. Johnson), whereas a law that forbids people from destroying their draft cards for (what the Court somewhat disingenuously accepted as) administrative purposes does not violate the First Amendment, even if the particular draft card burner intends to express a message by burning the draft card (as the Court held in United States v. O'Brien).  Indeed, subject to an exception I'll describe below, the Court has even said that wholly unprotected speech--such as fighting words--cannot constitutionally be targeted by the government if the targeting is based on hostility to the message conveyed by the unprotected speech (as it supposedly was in R.A.V. v. St. Paul).


In light of the foregoing, one might think that it makes no difference whether casting a legislative vote is speech. The key question, one might think, is whether, in forbidding the casting of particular legislative votes, the government targets the forbidden votes based on the messages they express.  However, in Nevada Comm'n, Justice Scalia rejects that view.  He says that the R.A.V. principle--protecting even wholly unprotected speech under some circumstances--only comes into play where the government targeting is viewpoint-based.


As an initial matter, I should say that this strikes me as a narrowing of R.A.V. (which was also written by Justice Scalia, albeit nearly two decades ago). There, the Court said that the particular ordinance was viewpoint-based, but the thrust of the R.A.V. opinion was that any content-based restrictions on speech, including proscribable speech like fighting words, must be subject to strict scrutiny under the First Amendment--except where the basis for the content restriction is the same as the grounds for making the category of unprotected speech proscribable in the first place. To read R.A.V. as only applying to viewpoint-based restrictions--as the Nevada Comm'n majority opinion arguably does--is to narrow R.A.V. considerably.

Be that as it may, Justice Alito does not disagree with Justice Scalia and the balance of the Court on this point. Alito is willing to accept that if legislative voting is not speech then, like proscribable speech, it only receives protection against viewpoint-based restrictions.  Or at least Justice Alito doesn't challenge the majority on its reading of R.A.V. Instead, his challenge concerns legislative voting itself.

According to Justice Scalia, legislative voting is "nonsymbolic conduct engaged in for an independent governmental purpose"--namely, legislation--even though individual legislators may, in particular circumstances, wish to communicate a message with their votes or with their votes in combination with statements. By contrast, Justice Alito says: "Voting has an expressive component in and of itself." So who's right?

I must say that I find the disagreement somewhat bewildering without criteria for deciding when some category of acts is inherently communicative. Virtually any act can be communicative or non-communicative, depending on the surrounding circumstances, the intentions of the actor/speaker, and the understanding of the audience. One could recite the words of the Constitution for a wholly non-communicative purpose--to cause an avalanche, say.  One could drive a car as a form of expression--in a slow-moving parade, say. And one could engage in non-communicative conduct--such as opening an umbrella--with the effect of unintentionally communicating information to others: here, the fact that it is raining.

What might Justices Scalia and Alito be disagreeing about when they disagree about whether legislative voting is inherently communicative? One possibility is a kind of statistical average: One could turn on the lights as a form of communication but the vast majority of light-turning-on is non-expressive, so we say the act is inherently non-expressive; one could sing a song in a foreign language without knowing the meaning of the words, simply as a means of staying awake, but the vast majority of instances of singing are expressive, so we would say music is inherently expressive. Yet neither Justice Scalia nor Justice Alito seems to have a statistical view in mind. Justice Scalia seems to think that legislative voting is inherently non-communicative because the purpose for which it was established--the enactment of legislation--is inherently non-communicative.  That's an unsatisfactory or at least unsatisfactorily explained view.  Among other things, it doesn't grapple with the fact that much legislation is itself symbolic.  But at least we can get an inkling of why Justice Scalia thinks legislative voting is inherently uncommunicative.  Justice Alito doesn't even suggest why he thinks that legislative voting is inherently communicative; he just asserts the point as though it were obvious.

For my money, this is an unresolvable debate.  Were it up to me, I would adopt the broader reading of  R.A.V., which Justice Scalia appears to reject. Under this broader reading, the First Amendment itself does not carve the world up into speech and non-speech. Instead, First Amendment scrutiny would apply whenever the government singles out acts because of hostility to the message they convey or takes action that substantially limits the ability of speakers to express their messages.  The second half of that test requires some judgment about what sorts of acts are usually engaged in for expressive purposes, but it could be folded into familiar doctrinal tests like whether a time, place or manner restriction leaves open adequate alternative channels of communication. I think that what I am proposing here is actually a more faithful reading of Justice Scalia's own opinion in R.A.V. than the position he and the majority of the Court stake out in Nevada Comm'n. It has the further virtue of largely avoiding the metaphysical question of what speech is.

The Campaign Finance Issue Lurking in Nevada Comm'n on Ethics v. Carrigan

By Mike Dorf


The unanimity of result in the Supreme Court's decision in Nevada Comm'n on Ethics v. Carrigan disguises a very interesting disagreement lurking beneath the surface. The case upholds, against a First Amendment challenge, a Nevada law that forbids legislators from casting legislative votes on matters that would materially affect the legislator or someone with whom the legislator has a close personal or business relationship.  Justice Scalia wrote the majority opinion, which appeared to rely on two independent grounds for rejecting the challenge:

1) Laws requiring recusal of legislators (and in analogous circumstances, judges) have been in continuous force at the state and federal level since the Founding, without anyone ever seriously contending that they violated the First Amendment, so their pedigree validates them;

and

2) When a legislator votes for or against a bill, he or she is not engaged in speech at all, but merely engaged in government conduct, so there is no free speech here to infringe.

In separate concurrences, Justices Kennedy and Alito each expressed discomfort with proposition 2).  Kennedy, who joined the opinion in full, said that a different case would be presented if the Nevada law were used to require the recusal of a legislator based on the material impact of the bill in question on the legislator's campaign contributors, but he went along on the ground that as he read the Scalia majority, it did not address that issue.  Alito flatly disagreed with Scalia's contention that legislative voting is not speech.  He nonetheless went along with the result and so much of the opinion as made point 1), on the ground that the longstanding acceptance of legislative recusal requirements shows that they are permissible restrictions on speech.

In a follow-up post I'll have a bit more to say about the merits of the issue that divided Justices Scalia and Alito, but for now I'll note that Alito's position provides for a more generous interpretation of speech.  That, in turn, raises the question of why all of the liberals went along with Scalia's stingier interpretation of speech.  One answer may be that they are hoping that Nevada Comm'n becomes a useful precedent for upholding a particular form of campaign finance restriction: The requirement of a legislator's recusal when the interests of major political backers are at stake.

The key is whether Justice Kennedy is right that the majority opinion really reserves judgment on the question whether such restrictions would be valid. At the conclusion of Kennedy's concurrence, he points to page 10 of the majority opinion, which, he says, reserves judgment on this issue.  In fact, the relevant language appears at page 11 of the slip opinion.  My guess is that there were last-minute changes in the majority opinion that affected the pagination and the opinions went out without the corrections.

The page numbers are not important, but the actual issue reserved is.  The majority says it is not addressing the claims that the Nevada law "unconstitutionally burdens the right of association of  officials and supporters, and that [it] is unconstitutionally vague."  Yet, as I read Justice Kennedy's opinion, he is also concerned about the possibility that, as applied to political supporters of a legislator subject to recusal, the law, even if it were crystal clear, would burden their speech, even as individuals rather than in association with one another.  That is the broader campaign finance issue I take him to be raising, and I don't think the majority says that is specifically reserved for a later date.  Of course, the majority doesn't specifically address it either.

The closest the majority opinion comes to saying anything about the implications of the ruling for campaign finance more broadly is in footnote 3, on page 6, where it says that "restrictions on judges' speech during elections are a different matter."  That may leave the Court enough wiggle room to distinguish Nevada Comm'n in the future, should a state require recusal where the interests of campaign supporters are materially affected. But on its face, the majority opinion would seem to be a very valuable precedent for crafting campaign finance restrictions. If, as the majority says, a legislative vote is not speech at all, then a requirement for recusal is not a restriction on speech, full stop.

Am I saying that the Supreme Court, as currently staffed, would really uphold a law of the sort that Justice Kennedy and I are imagining? I'm enough of a legal realist  to say no. The tricky question is how the Chief Justice and Justices Scalia and Thomas would back off of what Nevada Comm'n pretty plainly says.  Perhaps they will say that a broad recusal law of the sort I'm imagining imposes a burden on the free speech rights of the people who engaged in campaign speech on behalf of the candidate-turned-legislator who is required to be recused by the law.  But it's at best an awkward argument to say that the state infringes the free speech rights of gazillionaire Warbucks when it requires legislator Jones to recuse himself from matters directly involving the interests of Warbucks on account of the fact that Warbucks spent spent millions on ads to ensure the election of Jones. Kennedy comes close to saying this in his Nevada Comm'n concurrence, but he does so in a way that sufficiently obscures the point as to make it not quite so outrageous a proposition as it is on its face.

Supporters of more aggressive campaign finance regulation could use Nevada Comm'n as a blueprint for a new form of recusal-based regulation. The laws would probably be struck down by the Supreme Court eventually, but at least in the short run, Nevada Comm'n would provide plausible grounds for sympathetic lower court judges to uphold them.

[Note: The foregoing is a somewhat updated version of the post.  My original post noted that Justice Kennedy's concurrence cited a page of the majority opinion that doesn't say what Justice Kennedy said it says.  A commenter usefully noted that Justice Kennedy was off by one page.  I have preserved the comment and my response to credit the commenter.]