Wednesday, August 31, 2011

Speech at Funerals: Snyder v. Phelps Through the Looking Glass

By Mike Dorf

Yesterday's NY Times carried a story about a lawsuit in federal district court alleging that the federal government is violating the First Amendment by censoring the religious speech of VFW honor guards at a military cemetery in Houston, TX.  The complaint lists causes of action under freedom of speech, free exercise of religion, the Establishment Clause, and the Religious Freedom Restoration Act (which was held invalid by the Supreme Court as applied to states and localities in 1997 but remains valid against the federal government).

Juxtaposing the Times story with the complaint and supporting affidavits, it appears that there is an important disputed question of fact: Does the Department of Veterans Affairs require private speakers to obtain prior family approval to recite religious messages while permitting non-religious messages without prior family approval (as the complaint alleges), or does the policy require family approval for any spoken text?  Resolution of that question could be important for determining whether the government is engaging in viewpoint discrimination. I don't know nearly enough about the facts in the case, so I'll just note the factual question and move on.

Even if the government is not discriminating against the religious content of the ceremonies that the Veterans wish to perform, the policy could be unconstitutional simply in virtue of the fact that it presumptively silences speakers on public property.  Nonetheless, I think the right doctrinal answer is that, absent discrimination, the policy is valid.

Why?  Because a military cemetery is government property but not a so-called "public forum."  Indeed, it is not really a forum for speech at all--except in the very limited sense that the families of deceased veterans are entitled to hold ceremonies and visit graves in the cemeteries.  In such a setting, government regulation of speech need only be "reasonable," and it is hard to argue that it places an unreasonable burden on speech to require that those who would speak at a funeral receive permission from the family members who are conducting the funeral.

That result will at first seem odd if stacked up next to the ruling earlier this year in Snyder v. Phelps.  Can the First Amendment really mean that bigoted protesters have a right to picket military funerals but that a VFW honor guard should be presumptively excluded?  No, of course not, because that's not a fair characterization of the two cases.  The Court in Snyder emphasized that the respondents were not at the funeral.  Indeed, they were not even visible from the funeral.  So there is no real inconsistency.

Still, if the right answer in the Houston case is that the government may require speakers to get permission from the deceased's family before speaking at a funeral, that must be because a funeral is an extraordinary event.  Under most other circumstances, it makes sense to construe the First Amendment to require that the default rule is to permit speech, until the prospective audience opts out.  The plaintiffs in the Houston case argue that the government policy at the cemetery amounts to a "prior restraint" on their speech.  In most other contexts, that might be right.  But in certain settings the presumption can be reversed.  The home is one such setting (as illustrated by Frisby v. Schultz).  Cemeteries during funerals ought to be another.  Certainly nothing in the Snyder case rules out that conclusion.

Tuesday, August 30, 2011

Flood Insurance

By Mike Dorf

In the wake of Hurricane Irene, many people who had not previously had cause to think about the question are probably now discovering that their homeowners' insurance does not cover flood damage.  My own homeowner's policy is fairly typical.  It excludes flood coverage with a boldface capital "NOT" followed by the definition of a flood (taken from the National Flood Insurance Program):  "A general and temporary condition of partial or complete inundation of normally dry land areas from overflow of inland or tidal waters or from the unusual and rapid accumulation of surface waters from any source."

That's clear enough and for someone like me, it's pretty safely ignored.  After all, I live near the top of a 1200 foot hill, with no bodies of water on higher ground.  But language like that is also undoubtedly ignored by thousands of people who, in retrospect, needed flood insurance.  Why do homeowner's policies generally exclude flood coverage?

Insurance companies earn fair returns by collecting premiums and paying out for the realization of uncorrelated risks.  An insurance company can calculate the likelihood of a lawsuit alleging a slip-and-fall in a typical home and spread the expected payout over the premiums for all similarly situated homes.  The more policies the insurance company writes, the more precisely it can match premiums to payouts.

But a flood is a catastrophic event that is correlated among homeowners, meaning that insurance companies often won't have adequate reserves in case of a truly large flood.  That's where the federal program comes in.  The federal government makes flood insurance available to communities that adopt measures to minimize flood damage.  Yet, as this Wall Street Journal article notes, the federal program is under-funded and at risk of being cancelled.  The article suggests that if it is cancelled, private insurers will not be able to make money writing flood insurance policies but will be required by state regulators to write them anyway.

That's a puzzle, isn't it?  Obviously, insurers will be able to make money if they are permitted to charge premiums that are actuarially sufficient to cover losses.  Perhaps the real problem is that the market rate for flood insurance would make it unaffordable for the people who most badly need it.  Still, why would state regulators require insurers to write flood insurance policies at below break-even rates?  Such a requirement in effect acts as a transfer from people who don't need or want flood insurance to those who do--because an insurer forced to write flood insurance for below break-even rates must subsidize the flood losses from its other insurance lines (including homeowner's insurance without flood coverage) if it is to stay in business.  In this regard, state regulation requiring such private insurance would be quite similar to the current federal guarantee, which is a subsidy from taxpayers.

But this simply raises the further question of why people who don't need flood insurance (e.g., "hill people" like myself) should be made to subsidize people who do need it, whether through taxes or through artificially high premiums on other policies.  If someone chooses to build an expensive house (or even a modest one) in an area susceptible to floods, but cannot afford to pay the full market premium, why should the rest of us bail him out (almost literally!) after a flood occurs?

There are, of course, circumstances in which either private insurance or public insurance appropriately pays for coverage of harms that could have been avoided through greater prudence.  For example, hospitals don't (or at least shouldn't) turn away uninsured or under-insured victims of their own negligence; health insurance covers the cost of treating diseases caused by risky behavior like cigarette smoking; etc.  But in these instances we make a collective judgment (with which I wholeheartedly agree) that it would be terribly inhumane to fight moral hazard by letting people die.

To my mind, no such similar principle applies in the flood context.  Someone who has lost his home or business because he chose to locate it in a place where he couldn't afford actual-market-price flood insurance has suffered a real loss, but it does not strike me as terribly inhumane to make him bear that loss himself.  Why does the law, at least for now, conclude otherwise?

Loss aversion may provide a psychological explanation.  To lose one's home (and to a lesser extent, one's business) is experienced as more traumatic than not to obtain a home (or business).  Flood insurance thus functions to combat loss aversion--the basic human tendency to treat losses as worse than foregone gains.  That's not a policy justification, though, just a hypothesis about causation.  We might do better to try to reconceptualize flood losses in a way that requires people to bear the true cost of their risky location decisions. We could and should still make a judgment to provide collectively subsidized aid to assist people rendered homeless by their own risk-taking location decisions, just not the sort of aid that permits them to repeat the exercise.

Finally, I realize that a great many of the people now suffering from flood damage did not make especially risky decisions.  But for them, at least, actuarially sound flood insurance ought to be affordable even without a public subsidy.  At most, the government might be needed to act as a reinsurer to pool very large risks.

Monday, August 29, 2011


By Mike Dorf

In my latest Verdict column, I argue that the Tea Party movement is a sign of the breakdown in the Republican coalition.  I use three incidents -- proto-Tea Party opposition to TARP; the Tea Party opposition to a deal on the debt ceiling; and fights over immigration that pit Tea Party types against employers -- to show how increasingly the interests of Wall Street and corporate America diverge from the ideology of what I call the populist right.  I characterize the fight as a battle for the soul of the Republican Party.  Here I want to explore the possibilities that the rift offers for realignment.  Specifically, I want to ask: How would American politics look if the Democratic Party were to replace the Republican Party as the party of Wall Street and big business?

A pro-business Democratic Party is not at all difficult to imagine.  Indeed, many people on the left would say that is already what we have.  After all, President Clinton signed the Financial Services Modernization Act and President Obama's policies have been very generous to Wall Street.  The two main ways in which Dems give corporate America less than it thinks it can get from Repubs are: 1) taxes; and 2) regulation.  These are important, to be sure, but the differences are small enough that I could imagine corporate America concluding it can live with somewhat higher taxes (on wealthy individuals, with fewer loopholes for corporations) and somewhat more robust regulation, in exchange for knowing that the country is not being run by a collection of ideological maniacs willing to blow up the economy to prove a point.  (Here's an illustration of the reasoning process.)

What would realignment mean for other issues?  Many of the people who work on Wall Street and in corporate America skew libertarian, and would thus be relieved to be freed of their alliance with the social conservatives in the Republican coalition.  There would still be some contested questions, of course.  Some people who are otherwise libertarian are also pro-life (e.g., Ron Paul).  Would the new, more libertarian Democratic Party support gun rights?  I think the most likely outcome would be regional variation and a lot of straddling. Meanwhile, a socially conservative Republican Party shorn of its connection to Wall Street and big business would look a lot like Mike Huckabee as governor.

The tough questions are what would happen to union members and racial and ethnic minorities.  The latter would, I think, still find a home in the Democratic Party.  Recall, after all, that big business has generally supported affirmative action.  Out-and-out racism is more likely to be found among poor whites, who view minorities as either an economic threat or people whose low status can elevate their own status, than among the elite.  (Again, these are very broad generalizations.)  I'm not saying that racism, nativism, and other exclusionary ideologies are inherent in the Tea Party movement, but I think the Tea-Partyfication of the Republican Party would certainly not make the latter more hospitable to minorities.

I suspect that organized labor would be the big loser in the reorganization I am imagining.  Unions have provided a big boost for the Democrats in recent decades, even as Democratic policies have been only a little more union-friendly than Republican policies, and even as union membership has been declining.  A Democratic Party allied with Wall Street and big business would have less need for unions, but it is hard to see how the Republicans would welcome union activists into their midst--even once they've divorced Wall Street and big business.  Tea Party support for such figures as Wisconsin Governor Scott Walker and New Jersey Governor Chris Cristie, who have made public-union-busting the center of their respective agendas, suggests that in the short run at least, the conservative populists don't see the advantage of allying with organized labor.  Perhaps realignment would mean that would change in the long run, but unions seem to be in decline in the long run.

Finally, I want to be clear that I'm not making a normative case for the sort of realignment envisioned here.  This is simply a thought experiment.

Friday, August 26, 2011

Jobs and the NLRB -- Weird False Equivalence

-- Posted by Neil H. Buchanan

[Note: The fourth paragraph below has been edited in response to a comment from a reader.]

Why are so many people unemployed? Why does the economy continue to produce so few jobs, as we face the very real prospect of a renewed recession? The answers to these questions are, of course, hotly disputed. Some theories are better than others, while many ideas that have been floated are simply not serious. The silliest suggestion by far, however, comes from NYT op-ed columnist Joe Nocera. In his most recent column, Nocera argues that the National Labor Relations Board is responsible for businesses holding back on hiring. He does not, thankfully, argue that that is the whole story, but he nonetheless claims that the NLRB and the Democrats who support its decision are "paralyzing" the economy.

Nocera claims that the NLRB has overreached by filing a complaint against Boeing, preventing the company from moving some of the work for its Dreamliner jet from the state of Washington to South Carolina. The NLRB asserts that Boeing's action constitutes an illegal labor practice, specifically an act of retaliation against the company's union for refusing to agree to a moratorium on strikes. After the union's refusal, Boeing moved a significant part of the work on the Dreamliner to a new, $750 million plant in S.C., hiring 5,000 non-union workers.

Could reasonable people disagree over the legal definition of "retaliation"? Obviously, yes. That is why we have legal process. Nocera, however, admits to having become "mildly obsessed" with the case, because he is certain that this is "unprecedented," "overreach[ing]," and "a disservice to [this] country." His outrage is not based on any legal analysis, but rather on his intuitive definition of what constitutes retaliation: "But the word 'retaliation' suggests direct payback — a company shutting down a factory after a strike, for instance. Boeing did nothing like that." He then argues that Boeing's relocation decision cannot be retaliation because no worker in Washington was laid off (and some new workers were added there).

This fact, however, would be more meaningful if there were not 5000 new non-union jobs in S.C. that could have been added in Puget Sound (in a state that also has plenty of available workers). It is certainly possible to retaliate -- even in the colloquial sense that Nocera prefers -- by changing plans in a way that makes a union (and its current and future membership) worse off than it would have been without that change in plans. That is what the NLRB is claiming.

I repeat, however, that reasonable people can differ on the ultimate merits of the NLRB's action. Based on what I know of it, it seems like neither overreach nor even a likely loser. In any case, the more interesting aspect of Nocera's column is his complete loss of perspective. In an effort to say that both Republicans and Democrats do things to harm job creation, he argues that "Republicans won’t pass anything that might stimulate job growth because they are so ideologically opposed to federal spending," while the NLRB's action "should embarrass Democrats who claim to care about job creation."

My dissertation advisor, Benjamin M. Friedman, always insisted on exposing conceptual claims (essentially, "A will cause B") at least to empirical back-of-the-envelope reality checks. Just because one can tell a causation story does not mean that the story is important. Does holding open a refrigerator door waste energy? Sure, but addressing that "problem" is not going to get us very far in solving our energy or environmental crises. It is surprising just how much time economists spend talking about possible causal connections that turn out not to be empirically important.

Nocera's column is a perfect example of this problem. It is, in fact, even less plausible than the usual if-then story, because the immediate issue is not the total number of jobs that Boeing might create, but where they will be located (and whether the workers will be protected by union membership). At most, there might be an argument that there could be a few more non-union jobs in the aggregate due to lower wages and benefits (which Nocera apparently prefers not to mention), but that is even less significant in the context of the larger economy than the 5,000 jobs at issue in the NLRB case.

To his credit, Nocera apparently realizes that his example is ultimately trivial in the context of an economy that still has 14-15 million people looking for jobs (and millions of others working part-time on an involuntary basis). Needing a way to expand his hyped-up example into a big macroeconomic deal, however, he resorts to what might be called the Confidence Fairy's odd cousin. The NLRB's actions, we are told, change the rules under which businesses thought they were operating: "That is what is so jarring about this case — and not just for Boeing. Without any warning, the rules have changed. Uncertainty has replaced certainty. Other companies have to start wondering what other rules could soon change. It becomes a reason to hold back on hiring."

At best, this might be "a reason" not to hire more people. How big a reason? Nocera offers no reason to believe that it is at all an important part of the current problem. Even within the broader anti-government logic that says that regulation generally causes businesses to reduce employment (without any connection to the state of the economy), we still have no reason to believe that the NLRB's action (in an economy where the rate of unionization for private-sector workers is now significantly under 10%) will seriously spook businesses into further inaction on hiring. Moreover, have we not been told ad nauseum that the problem is with small businesses, who would be the least likely to worry about anything the NLRB might do regarding interstate manufacturing decisions? How slippery does that slope have to be?

More to the point, even without the NLRB's action, do we have any reason to believe that businesses more broadly would be adding jobs? There are no customers, so why add workers? We are stuck in a classic under-employment equilibrium. At best, Nocera is describing a speck of dust on a hair on the tail of the dog.

Actually, I have been holding off on critiquing Nocera. After years as a columnist for the business section of the Times, he is new this year to the op-ed page. His columns thus far suggest that he is a well-motivated guy, in a bit over his head, but trying hard. He started off badly, with two of his earliest columns being little more than ill-informed rants in favor of fracking. Later, he made the rather odd claim that Rep. Paul Ryan deserved a lot of credit for his plan to replace Medicare with vouchers, because even though the plan was a terrible idea, at least it was an idea.

Most recently, Nocera summed up the crisis over the debt limit with an impassioned attack on the Tea Party, calling them "terrorists" -- but then issuing an apology for using over-the-top rhetoric. Even the Times's Public Editor thought that the apology was unnecessary (but nice), and he reported that Nocera has admitted to being somewhat uncertain of how to create his persona as a columnist.

That is, however, at least a bit of a dodge. Nocera's persona as a business columnist exhibited the same kind of volatility. In March of 2009, I wrote a DoL post describing another bizarre Nocera column, in which he had managed to overstate the case against AIG (no easy task), by claiming that the very notion of insuring against losses was somehow a "scam." His column was a grab-your-pitchforks-and-torches moment, and it was completely irresponsible.

Now, mildly obsessed with the Boeing case, Nocera tells us that the Democrats who support the NLRB must share responsibility with Republicans for the continued weakness in the economy. One can only hope that he finds his equilibrium soon. As it stands, he is neither unbiased nor a centrist. He is simply a loose cannon.

Thursday, August 25, 2011

Happy Stories and Ugly Reality

-- Posted by Neil H. Buchanan

Both of my posts last week were concerned with the depictions in popular culture of important social issues. On Thursday, I discussed the negative and inaccurate depictions of vegans in movies and television, while Friday's post described the disturbing tendency of movies and TV shows to portray prostitution as a non-problematic "profession," ignoring or winking at the coercion and violence (or the threat thereof) that is almost surely the reality for prostitutes (especially the child slaves of sex traffickers) around the world.

The discussions on the comment boards for the two posts were interesting and instructive. In response to my concern about the negative depictions of vegans, Professors Dorf, Colb, and other readers argued convincingly that being ridiculed is actually a good sign, because it means that we have become influential enough to be worth singling out for ridicule. That is not a guarantee of ultimate success, but I do find their suggestion more than plausible (and, needless to say, comforting).

In response to Friday's post, a reader suggested that positive depictions of prostitute's lives are understandable efforts on the part of the creators of TV shows and movies to use material that fits with the theme of the shows/movies. We cannot expect a comedy like "The Guard" to deal with the kind of gritty reality that we saw in "The Whistleblower," and "The Guard" and "Fargo" used moments of genuine happiness in prostitute's lives to advance the story. While that explanation is very plausible, it raises a larger question that I want to explore further here, and that ties the two posts together in a somewhat unexpected way.

The sub-title of last Thursday's post, "The French, the Amish, and Vegans," captured the idea that some jokes are off-limits, whereas other jokes (and the choices of whom to make the butts of jokes) are socially acceptable. For example, I recently saw a light romantic comedy from 1936, "The Bride Walks Out," starring Barbara Stanwyck, in which there are four -- FOUR! -- separate jokes about wife beating. For good measure, one character also refers to "getting my shirts back from the Ch--ks" rather than "picking up the dry cleaning." Viewers of this year's re-release of "Breakfast at Tiffany's" saw the spectacle of Mickey Rooney in one of the most insulting depictions of an East Asian person on film. ("Breakfast at Tiffany's" is also relevant because Holly Golightly is a prostitute, but the movie goes to great lengths to downplay that fact -- so much so that many viewers think of her as simply a happy-go-lucky party girl.)

Today, of course, such depictions are either absent from TV and movies, or are handled with irony or disdain. Other topics never were, and never will be, the subject for broad comedy. The most obvious of these is the Holocaust, with even the most successful attempts at humor (Seinfeld's episode about "Schindler's List" being a prime example) ultimately not working very well, if at all. Even though people living through the Holocaust surely experienced moments of genuine happiness and even gaiety (I say "surely" because humans seem to have an uncanny knack to make the best of a bad situation, to laugh in the face of death, and to put even the worst horrors out of their minds temporarily), there is good reason that a movie like "The Guard" does not come along and show a bunch of Holocaust survivors as comic relief.

The question, then, is why it is unacceptable to, say, release a movie showing happy slaves in the South in 1855, whereas it is acceptable to treat prostitution as a source of light comedy. One possible answer, I think, lies in my comment in Friday's post about people's caricatured view of prostitution as a simple economic transaction without coercion: buyer wants service, offers price to seller of service, transaction occurs, service is provided, no problem. By imagining that the prostitutes on "Two and a Half Men" are highly-paid, treated well, and voluntarily enter into transactions for sex, viewers can enjoy the joke and not worry about the underlying reality.

Which, strangely enough, brings us back to veganism and animal rights. One of the most common experiences among vegans is being confronted by someone who wants to argue that vegans are not morally superior to non-vegans. (This generally happens not after a vegan says, "I'm morally superior to you," but when a vegan says something like, "I can't eat that, because I'm a vegan," or "Can I have that without the bacon?") The philosophical arguments about veganism have been discussed at length elsewhere (including on this blog a few years back), and it will serve no purpose to revisit them here. What is relevant, however, is the common argumentative move by which an anti-vegan describes a way to produce meat or other animal products that is arguably not cruel. "Would you eat veal from a calf that died of sudden-infant death syndrome?" "If there were a way to kill animals exactly at the point that they were going to die anyway, isn't the moral problem solved?" "It is possible to milk cows in a way that does not require that the male offspring are killed, and with the cows being treated humanely, right?"

While even these arguments are ultimately unavailing, the common theme that makes them relevant to this blog post is the replacement of reality with an alternative reality that makes the consumers of animal products somehow feel that they are not being immoral. They claim to be moral, however, by saying that since it would be possible to create an animal food product in a (supposedly) non-cruel way, then it is acceptable to eat and use all animal products, no matter how those products are actually produced. (As noted, these non-cruel alternatives are a myth, so that the "happy meat" movement is also off base, even if people limit themselves solely to non-factory farmed products.)

Similarly, the depictions of "sex workers" in movies and TV allow the viewer to imagine that the exploited people are not being exploited at all. If we can imagine a person choosing to be a prostitute without coercion, and enjoying it, then we can pretend that all prostitutes are happy and uncoerced.

But why stop at "happy hookers"? The basic logic here is that any morally problematic situation can be cleansed by telling ourselves a story about how that situation could have been the result of truly free choice. If that works so well, then how would such perverse logic not extend to rape? We can always imagine that two people (even the rapist and his victim, in a different reality) might have met under the right circumstances, fallen in love, and decided to have sex as an expression of that love. Why let reality divert us from that beautiful story?

That last example, of course, shows just how ridiculous it is to rely on the alternative-reality story to justify ugly reality -- and to justify audiences' comfort in seeing depictions of the alternative reality in place of the ugliness. Some ugliness is not allowed to be scrubbed. Imagine the women in "The Help" (a new release about African-American women in 1950's-era Mississippi, working essentially as indentured servants for middle-class white families) being depicted as absolutely happy with their lot in life. Movies made during that era, in fact, did precisely that, often showing shoe-shine men and other stereotypes shuffling their way through life as happy as could be. American audiences today would broadly reject such "artistic choices," in ways that we do not yet reject happy depictions of prostitution, animal exploitation, and other horrific realities.

I do not know how or when certain topics cross the line, becoming ineligible for cleaned-up Hollywood treatments of life's ugly realities. At some point, one hopes, we will no longer nod and wink about the ugly realities discussed here. Until then, it is at least important to notice what American society has not yet rejected.

Wednesday, August 24, 2011

Those Outside Our Circle of Concern: Strip-Searches and a Failure of Empathy

By Sherry F. Colb

My Verdict column for this week is about Florence v. Board of Chosen Freeholders, a case that the U.S. Supreme Court will be hearing this coming Term.  Florence involves a challenge to a policy under which detention facilities strip-search all arrestees prior to entry. The policy applies even to those people charged with minor, non-indictable offenses, and it requires no reason to suspect that an individual searched is actually in possession of drugs, weapons, or other contraband.  The Supreme Court upheld a similar policy in the 1979 case of Bell v. Wolfish, but the facts of Florence are arguably distinguishable, as I discuss in the column.  Though I make no strong outcome predictions, I will boldly say here that Justice Kennedy's vote will be important.  Justice Kennedy has a somewhat uneven record when it comes to prisoners' rights, having recently written a majority opinion on the side of California prison reform in Brown v. Plata but having also in the past extended enormous deference to prison officials, including in Washington v. Harper, in which he wrote for the Court that we could trust prison psychiatrists to sedate prison inmates only when doing so was in the patients' medical best interests, even if prison rules did not include any consideration of patient's medical interests.

However the Supreme Court rules, it is noteworthy that our society largely tolerates policies under which incarcerated people are routinely subject to highly invasive and often pointless indignities.  Our threshold for outrage when a victim of harm is not "one of us" -- those we include in our circle of concern -- seems inordinately high.  If we are not personally connected to individuals at the receiving end of the criminal justice system, we may too readily accept as normal and unremarkable the grotesque conditions that prevail in penal institutions.  We  may even take comfort in the belief that our Constitution guarantees prisoners at least some protection.

Many of us would feel differently if the matter were closer to home.  Imagine that the State in which we live passed law requiring every middle school student, at private and public schools, to disrobe the first day of classes in front of a teacher who would visually examine the student's genitalia.  We might well be outraged and immediately ask why such a policy was implemented, what other policies were considered and rejected first, and whether this approach could possibly be necessary to any important objective.  Unless we have no connection to middle school populations, as a parent or other relative, as a child, or as a friend, we would probably not react with indifference and think, "Who cares?  They're only children."

When it comes to people entering a detention facility, however, those of us who have never been arrested and taken to jail tend to react in just this way, a reaction that that leaves prisons free to adopt blanket strip-search policies until a court is ready to declare them unconstitutional.

When I contemplate the impact of an overly narrow circle of concern, my thoughts turn to the animals whose bodies and hormonal secretions have become a part of virtually every meal that most Americans eat.  If our threshold for outrage is high when it comes to prisoners, it is stratospheric when farmed animals are at issue, and the effects are all around us.  Animals on modern farms experience excruciating pain, sickness, stench, and grotesque deprivation almost every day of their short lives, and then they are subjected to a terrifying and painful process of slaughter.  Compared to this torture, an animal on a small family farm who only, as a young baby, is castrated, has his skin branded, or has his ears scissored, all without anesthesia, is a beneficiary of "humane" treatment.  We view as similarly humane the treatment of a mother cow or goat or sheep whose every baby is forcibly removed from her side so her milk can be diverted to humans, and who is later slaughtered at the age of 5 for hamburger meat, but who was allowed out of doors and given some grass on which to graze.

We not only feel no outrage about the suffering we support, but we may even feel pride when we buy "local" or "organic" animal products, imagining that we have done well by the animals.  It is so easy for us to forget to ask the question "Is this necessary?" when it comes to those outside our circle of concern, and the animals we consume seem as far outside as a living and sentient being could possibly be.  Are blanket strip searches necessary (or even effective) means of securing jails?  I doubt it, and the policy in Florence did not rest on any demonstrated need or utility.  Is the consumption of animal products necessary (or even beneficial) to a good human life?  It is not, as people are slowly but surely recognizing.

I heard recently about a scientist who suggested that we might have a different attitude toward other animals if  some of the other hominid species, including the Neanderthals and Homo Habilis, had survived to live among us.  The suggestion was that with some of these "missing links" around, we would have an easier time understanding how much we share (in our experiences of pain, pleasure, fear, anger, and psychological distress) with our fellow earthlings, even those very different from ourselves.

I am quite skeptical of this idea.  Human beings have a remarkable ability to expand and also to contract our circle of concern, with or without the presence of Neanderthals or Homo Habilus in our midst.  When we put our minds and hearts to it, we can feel empathy and extend our conscience to those well outside of our species -- this is why some of us take such loving care of our companion animals.  At the same time, when we take our minds and hearts out of it, we are capable of viewing others of even the same species as so alien to us that we need not bother refraining from enslaving and even killing them.  The path out of violence and indifference to violence is as simple as it is radical:  expanding our circle of concern to all of those capable of suffering, and  understanding that unnecessary violence and cruelty, whether inflicted on a jail inmate, an "enemy" or an animal, impoverishes our world.  Two quotes from Albert Schweitzer speak to this idea:   "Think occasionally of the suffering of which you spare yourself the sight." and "Until we extend our circle of compassion to all living things, humanity will not find peace."

Tuesday, August 23, 2011

Guest Post by Lisa McElroy: When Should Law Students Consider Transferring?

Lisa's back with another post about legal education.

There’s been a lot of talk lately about the Wake Forest Law first-year student who started a blog about her desire to transfer to Yale.  She has been criticized, not for her ambition, but for her unapologetic and public display of it on the Internet.
But there’s no doubt that Tammy Hsu is one of many first-year law students who aspire to transfer to another (often “higher-ranked”) law school.  In fact, according to a recent article in the Journal of Legal Education by Jeffrey Rensberger of South Texas School of Law, 5% of second-year law students in any given year have transferred from another institution. 
Back in the early 90s, I made the difficult decision to transfer from the University of Texas to Harvard Law School.  Since then, I’ve had a number of students ask for advice about the transfer process.  In this post, I’ll share my thoughts, but I’m very interested in hearing from readers, as well.  As law professors, most of us encounter the “transfer or stay put” dilemma each year, often with our top students. 
·        Strive to remember why you chose your current law school.  Reading about Ms. Hsu’s blog (because she has taken the blog down, I was unable to read it firsthand), what surprised me most was not that she wanted to transfer to #1-ranked Yale, but that she set that goal for herself before she even started her 1L year at the top-tier Wake Forest Law.  When talking to some of my own students about Hsu’s point of view, however, they told me that many law school admissions “guidebooks” recommend to students with lower LSATs that they matriculate to a lower-ranked school, then enter the higher-ranked school through the “back door” of transferring, at which point LSAT scores will not matter as much, if at all.
This advice made me sad.  Why?  Well, first, because law school is law school – you’re going to learn the same basic stuff no matter where you go to school (although certain schools may have excellent specialized programs).  In fact, as I’ve often told students who are thinking about transferring, I strongly believe that I got a better legal education at Texas than I did at Harvard:  my professors were more available to meet with students, and they seemed more interested in teaching.  (NB:  That is not to say that my professors at UT were not scholars of the highest order; by some stroke of luck, my section had the all-star line-up of Con Law with Charles Alan Wright, Torts with Bill Powers, Civ Pro with Linda Mullenix, Property with Michael Sturley, and Criminal Law with Michael Tigar, among others). 
The goal to transfer from day one may also prevent first-year students from forming important relationships with their faculty and student colleagues at their current law school.  Face it, if your goal is to move on, why invest in your current situation?  And if you make that goal known (as Hsu did), why would others choose to invest in you?
·        Be sure you are transferring to something, not from something.  I’ll admit it, I did find it disconcerting to watch the 1992 election returns with the other, well, eight or so Democrats in my first-year section.  And by transferring law schools, I hoped to find a broader political discourse than I experienced among my student colleagues at UT at the time.  But so often I hear from students that their 1L year has been difficult and – face it – not that much fun.  When I hear that sentiment, I remind them that law school is law school; most new law students find the first year rigorous, challenging, and, yes, incredibly stressful at times, even at (perhaps largely at) top law schools.
In my view, transferring should be about finding opportunities at the new law school that the current one does not offer.  As Professor Rensberger comments,
One type of student who transfers does so to be nearer family or because of a job relocation. Others may have an interest in a particular practice area and seek to transfer to a school that offers a noted program in that field. For example, a student might transfer from Michigan to UCLA because he or she wants to practice entertainment law. What these two types of transfers have in common is that they are blind to the overall reputation of the school to which the student is transferring. Other transfers are what one might call “trophy wife” transfers: The student’s goal is to increase his diploma’s status and his subsequent career opportunities by graduating from a school with a better reputation.
My decision to transfer hinged on two considerations:  I wanted to teach law, and I wanted to settle in the Northeast regardless of what career path I took.  I was more likely to realize both of those life goals if I went to Harvard than if I stayed at Texas.  Logically, these kinds of criteria – not the U.S. News rankings, not the prospect of a better social life, not a disenchantment with the current law school – should be the basis for a transfer decision. 
·        Take into account the costs of transferring as well as the benefits.  Professor Rensberger notes that students who transfer may find themselves small fish in the big pond of excellent students at the new law school.  But the costs can be greater than that, and more subtle.  For example, transfer students may not have the opportunity to work on journals or participate in the moot court program because tryouts for those activities usually occur in the summer between 1L and 2L year.  It may be challenging to make friends and find study partners at the new school because so many bonds are forged in first-year sections.  As most schools transfer credits but do not calculate grades from another law school into a students’ GPA, it may be harder to earn Latin honors.   And, although Rensberger finds that transfers slightly increase the cost of legal education for those transferring,” a student who transfers from a top state school to a top private school (as I did) may find her tuition costs double or triple. 
·        Realize that your chances of employment may or may not increase.  In today’s legal job market, many students believe that they will have more job opportunities if they attend a higher-ranked law school.  In some ways and for some types of jobs, that may be true; a colleague who teaches at a law school ranked at the bottom of the top 10, for example, has told me that he often counsels students who want to go into academia to consider transferring to Harvard or Yale.   But for the vast majority of students who are interested in law practice, transferring to another law school may not help at all, even given the fact that more legal employers may recruit there.  Why?  Because, as I discussed above, a top student at a mid-ranked law school may find herself in the middle of the class at a higher-ranked school.  Without law review credentials, she may find it difficult to distinguish herself from other average candidates at her new school.  Had she remained at her original institution, however, she would likely have ranked very high in the class, with a law review board position and letters of recommendation from top professors to bolster her applications. 
·        Consider the timing.  Many aspiring transfers do not consider one of the most difficult aspects of transferring:  the June application deadlines.  Applying to transfer essentially involves taking on the whole law school application process all over again, but now when a student is in the midst of journal write-on competitions, a summer job, and post-exam fatigue.  
·        Keep the odds in mind.  Transferring is tough stuff; the top schools often only fill empty slots, and at a school like Yale, those spots will be coveted by excellent students at law schools across the country. Be realistic:  If you do not have top grades, your chances of successfully moving to a significantly higher-ranked (notice I do not say “better”) school are close to zero. The likelihood, plain and simply, is that a student will finish law school where she started.  Because she chose that law school to start with, it will (hopefully) be a good fit for her and not just a consolation prize.

Monday, August 22, 2011

What a Creationist President Would Mean

By Mike Dorf

Texas Governor Rick Perry made news last week when, in answer to a question from a child, he said that evolution is "a theory that's out there" and proceeded to erroneously describe biology instruction in the Lone Star State.  Another Republican Presidential hopeful, Michele Bachmann, has also expressed doubts about evolution and said she favors the teaching of creationism or intelligent design in public schools. Mitt Romney accepts evolution (although perhaps only in Massachusetts and not at the federal level!), as does Jon Huntsman.  Ron Paul does not.  I couldn't be bothered to Google whether the other Republican candidates accept evolution, but I'll guess that Herman Cain and Rick Santorum do not, while Newt Gingrich changes the subject.  (Okay, I couldn't resist.  After I wrote that, I looked it up and I was pretty much right on all three.  I'd urge you to verify that for yourself except that you'd end up googling "Santorum.").

What should we make of the possibility that the next President could be someone who doubts a bedrock principle of modern science?  I think the answer is probably "not much."  After all, George W. Bush expressed support for teaching "intelligent design" in public schools, without much apparent effect.  So it's possible that there would be no direct consequences for school curricula from a creationist President.

How about an indirect effect?  A President who has serious doubts about evolution would be comfortable nominating judges and Justices who would be inclined to permit the teaching of creationism in public schools.  But given the multivariable nature of confirmation battles, I think it's possible that any Republican President could appoint judges and Justices who would permit the teaching of creationism or intelligent design in public schools.

Consider: As a candidate, Ronald Reagan expressed support for creationism.  His appointees Sandra Day O'Connor and Antonin Scalia split on the issue when it came before the Court (before Justice Kennedy joined the Court).  So did Nixon's appointees, and Nixon apparently accepted evolution.  A couple of minutes of Googling did not reveal clear evidence of Nixon's views about evolution but I did come across this article on a creationist website, which lists Presidents who were sympathetic to creationism, but omits Nixon.  I assume that if there were any evidence that Nixon was a creationist or creationist sympathizer, the author would have invoked it.  So I tentatively conclude that Nixon was not a creationist.

Thus, my general principle: Republican Presidents, whether they themselves are sympathetic to creationism or not, will tend to appoint conservative judges and Justices (and, as I explained a few years ago, more so now than in the past). Those judges and Justices will tend to be conservative across the board, which will translate into a greater likelihood of permitting public schools to teach creationism or intelligent design.  The support for creationism by Perry and Bahcnmann is therefore more important for what it says about their worldview and politics than for its likely consequences regarding the teaching of creationism/intelligent design should either end up as President.

Friday, August 19, 2011

Ignore the Violence

-- Posted by Neil H. Buchanan

Last weekend, I saw a movie called "The Whistleblower," a 2010 film starring Rachel Weisz as an American police officer who signed up to work for a Blackwater-like security contractor in Bosnia in the 1990's. Weisz plays the real-life Kathryn Bolkovac, who was assigned to work on the peace-keeping mission with the UN forces in Bosnia after the Dayton accords. Bolkovac discovered a sex trafficking operation, and she further discovered that the ring was protected by ineffective local and international laws, corruption, and negligence (at best) by officials with the authority to do something about it.

The film is an indictment of, among other things, military subcontracting; but mostly, it is a heartbreaking account of the horrors of what we so euphemistically call "the sex trade." The filmmaker, Larysa Kondracki, makes all the right choices in depicting the horrendous violence and terror faced by the young girls who are forced into sexual slavery, making the audience understand the inhumanity without going over the line into excessive depictions of violence. Most importantly, the sex is never sexy. The girls (and they are girls, not women) are held in subhuman conditions, addicted to drugs, and living under constant threat of death.

After seeing that film, I felt the need to see something with a few laughs. Fortunately, the multiplex was also showing "The Guard," a quirky Irish comedy starring Brendan Gleeson as a small-town cop who has to deal with an American FBI agent (Don Cheadle) in a drug sting operation. It is very funny. At one point in the film, however, there is a scene in which Gleeson's character hires two young prostitutes. The idea is that this middle-aged cop has a few eccentricities, and one of them is to buy a bit of kinky sex every now and then. The prostitutes are sort of Irish versions of the prostitutes in "Fargo" -- not especially bright, but happy-go-lucky and enjoying life.

The juxtaposition of those two depictions of prostitution was, to say the least, jarring. It caused me to think about the mythology of prostitution in popular culture, and how that mythology perpetuates a system in which violence and despair are an inherent part of the reality. Notably, that violence is sometimes even allowed to show through. A later scene in "The Guard" has one of the prostitutes talking to Gleeson's character in a diner. She has a bruised and cut lip, and it is made clear that this injury was no accident. Gleeson is sympathetic, but the scene is still played for laughs rather than concern for the woman.

One view of prostitution says that it is just like any other transaction, and that it should be treated no differently from any other transaction among consenting adults. The idea is that the potential seller of "sexual services" is no different from any other merchant, with the same set of choices, alternatives, and constraints. In this view, if a woman (or man, but as a matter of sheer numbers, we know that we are talking about women in the vast majority of cases) decides to engage in prostitution, then she can also choose to stop at any time, depending on her ongoing calculation of costs and benefits.

We see this picture of prostitution in popular culture all the time. The movie "Trading Places" gave us Jamie Lee Curtis's character, a smart, shrewd prostitute who has a simple plan to make money, invest it, and retire early. She has no pimp, and the only customer that we see is a middle-aged shlub who is easily shown the door. Prostitution is nothing more than a simple set of consequence-free transactions. (The film was made before AIDS, but obviously not before STD's.) The "hooker with a heart of gold" theme is a staple of movies and TV, with all of the dangers gleefully ignored.

The crossover between happy mythology and ugly reality was seen most recently in the Charlie Sheen implosion. The writers of "Two and a Half Men," who are now viewed as the good guys in the story, spent years making money from the premise that Sheen's character was just a roguish, likeable "booze-addled whore monger," in the words of one of the show's other characters. Episode after episode had Sheen in bed with a parade of prostitutes. All of the prostitutes were presented as healthy, happy, and just a bit bemused by the horny man-child who had hired them.

We always knew that the show was based on Sheen's actual life. What we learned only within the last year or so was just how much his real-life treatment of women (not just prostitutes, but his ex-wife and girlfriends as well) involved the ugly violence and terror that we like to assume exist only somewhere else. Knives held to throats, violent outbursts, and threats were reportedly part of that sickening story.

I suppose that it is possible that there are women making a living today as prostitutes who are perfectly happy with their lives, who do not suffer violent attacks (or the constant threat of such attacks) from their pimps or their clients, and who live the life that Jamie Lee Curtis's character claimed to enjoy in "Trading Places." Color me skeptical. In the current environment in the U.S. and far too many places, the reality might not be as horrible as we saw in "The Whistleblower" -- although it might be -- but there is no reason to assume that being a prostitute is equivalent to being an accountant or a landscaper.

This post is already too long to discuss solutions. Still, it is worth reminding ourselves that if there were no customers willing to pay for sex, then there would be no prostitutes. At the other end of the spectrum, the many aspects of legalization have been debated endlessly elsewhere. (For what it is worth, although I am generally sympathetic to civil-libertarian arguments, I am highly skeptical that it is possible to remove the coercion and violence from the equation -- or to remove the under-age problem.) Studies of the regulated prostitution systems in Nevada and some European countries offer mixed messages.

Rather than proposing a policy change, I am simply using this space to suggest that our culture too easily accepts the myth that prostitution is no big deal. What happened in Bosnia was no isolated incident, as "The Whistleblower" reports that there are an estimated 2.5 million sex slaves in the world. Even if we could imagine a world in which the transaction between a prostitute and a client resembled a supply-and-demand equilibrium in a textbook, that is not the world in which we live. It is shocking how easily we are lulled into accepting the comforting myth that real-life prostitution is nothing to worry about.

Thursday, August 18, 2011

Veganism, Year Three: The French, the Amish, and Vegans

-- Posted by Neil H. Buchanan

Because of this summer's budget controversies, I was not able to write my annual post celebrating my transition to veganism. (See my original 2008 post describing my decision to become a vegan here, and my first and second anniversary posts here and here. I have also written about veganism at other relevant times, the most recent of which was here.) Today, with the policy world providing a bit of breathing room, I return to celebrate three years of cruelty-free living.

In the 1980's, during the height of the manufactured hysteria about so-called political correctness, some stand-up comedians were complaining that they were no longer able to make jokes about particular groups of people. The easy racist jokes had (finally) become off-limits, and the less adaptable wags wondered whom they could safely ridicule. The sarcastic answer became: the French (because everyone still hates the French), and the Amish (because they do not watch TV, so they will not know that they have been offended).

As I have settled into life as a vegan, I have begun to notice just how much of a punching bag vegans have become in the popular culture. Some of this is to be expected, of course, from people who have economic interests tied to torturing and killing animals, and from people who are afraid of unfamiliar concepts. The more disturbing side of the story, however, is the treatment of vegans and veganism in that part of the popular culture that ought to be the most accepting of vegan commitments and ideals. Consider five relatively recent examples, from TV and movies:

(1) Last night, on the medical comedy-drama "Royal Pains," a doctor tells a patient that she is anemic. The patient says, "I've never been anemic before. I eat meat."

(2) An episode of "Futurama" depicted a group of vegans as hopelessly muddle-headed. The character Leela ends up lecturing them about their utter stupidity, describing eating meat as "only natural."

(3) In the detective comedy "Psych," a son tells his father that they have been invited to a friend's house for dinner. The son wants to skip it, because the hosts do not eat meat. The father says, "Well, we can be vegetarians for one night." The son says, "They're not vegetarians. They're something called ... vegans?" The father looks stricken, and after a moment's pause, he agrees that they should lie to his son's friend, to get out of the dinner.

(4) The show "How I Met Your Mother" goes out of its way to ridicule vegans. In one episode, a character's new girlfriend (whose name is Strawberry) angrily announces at a Benihana-style restaurant that she is a vegan, then throws red paint on the chef, shouting "Meat is murder!" One of the show's main characters later describes her as "a dirty hippy." In a later episode, another guest character announces that she is a vegan, saying to one of the main characters: "I wish I could turn off my moral sense and eat meat, but I just can't." Later, after being dumped by her vegan boyfriend, she gleefully eats a steak.

(5) In the 2010 movie "Scott Pilgrim vs. The World," one of the foes whom Scott must defeat is a vegan. The vegan's current girlfriend says: "Bottom line: he's just better than you and me." Being a vegan is said to give a person superpowers, but the vegan character is revealed to be an idiot, who does not even know that chicken parmesan is non-vegan. He is arrested and de-frocked by the Vegan Police, who relish their role in enforcing vegan rules, with smirks and high fives.

Example #1 is, at least, not a matter of heaping derision on vegans. It is, on the other hand, a medical TV show that has set itself up as very sophisticated in its depiction of medical knowledge, yet it peddles the usual nonsense about meat-eating being necessary to good health.

Examples #2-5, on the other hand, all use vegans as the butt of jokes. Comedy of this sort is based on the writer's confidence that his audience shares certain assumptions about the targeted group. From these and other examples, it is obvious that "normal" people are assumed to know two things about vegans. First, vegans are apparently thought to be confused and ill-informed. The stereotype is that of the hemp-smoking, crystal-gazing, enviro-hippie who cannot be reasoned with. Second, vegans are holier-than-thou scolds who are just out to ruin everyone's good time. It does not matter that these are inconsistent beliefs about vegans, because prejudice is anything but logical or consistent.

As I noted earlier, what makes all of this so depressing is that these are not jokes from, say, Ted Nugent on a talk show. All of the examples above come from entertainment vehicles that are aimed at the 18-34 demographic (with interloping middle-aged law professors looking in), the very audience that is generally the most idealistic and most accepting of the idea that we should be willing to challenge the way things have always been done. Oddly, this audience very much embraces environmentalism (and, for that matter, drug legalization), even as it accepts a caricature of vegans as doped-up tree huggers who just need a cheeseburger.

Rather than embracing the possibility that veganism might be worth careful thought, the general vibe is that veganism is just one more thing about which hipsters should feel jaded and contemptuous. Cue the rolling of the eyes. Of course, the essence of being "with it" involves being willing to turn on a dime, with a once-admired band becoming hated once it is perceived as having become too mainstream. Clearly, however, that is not what is happening with veganism. We were never at the stage where veganism was cool, meaning that no one could claim to be truly cool by seeing through the hype.

Admittedly, some of the hostility toward vegans surely is based on excessive zeal on the part of some vegans. One of my nephews, while in high school, dated a vegan who broke up with him (after screaming at him) for wearing a wool cap. There are plenty of people who generate bad PR for every point of view, however. It is not obvious why people should so readily generalize such excesses to all vegans.

I do not view any of this as personal. Being a vegan was the right choice, and none of these examples have ruined even one day for me. "Scott Pilgrim" was an excellent movie, notwithstanding its ignorant treatment of veganism. (Critics loved the movie, too. I guess I should view it as good news that audiences stayed away in droves.) It is annoying, but not a hardship, to go through life knowing that these silly anti-vegan prejudices will pop up every now and then.

I do, however, find it all perplexing and depressing. We count on idealistic young people to, for example, make gay marriage a non-issue, as the young grow up and replace less enlightened generations. If young people have somehow moved past veganism without ever taking it seriously in the first place, then one of the most promising avenues for change has been lost, at least temporarily. The question is whether the tide can be turned. I am optimistic, but temporarily bewildered.

Wednesday, August 17, 2011

Handicapping Political Implications of the Coming Supreme Court Term: Win by Losing or Lose by Losing?

By Mike Dorf

Last week I boldly (or foolishly) predicted that the constitutionality of the individual mandate in the Affordable Care Act and the University of Texas affirmative action case would make it to the Supreme Court in the upcoming Term, while the challenges to DOMA and California's Prop 8 would take a little longer.  Today I want to handicap the political payoff of SCOTUS decisions in the various cases.  For simplicity, I'll lump the DOMA cases and the Prop 8 case under the general heading of same-sex marriage.  So, the questions I'll address here are: Who would benefit from the various possible rulings on the three issues?

Let's start with the ACA.  In a recent Washington Post story, I was quoted as saying that the 11th Circuit's decision invalidating the mandate fast-tracks the case to the Supreme Court.  That was me making a prediction, but it's also my normative view: Politics aside, given that this case will eventually reach the SCOTUS, it's better that it should get there sooner rather than later, so as to remove the uncertainty about compliance that currently faces states and insurers.  But for this post, I don't want to put politics aside.

Perusing the news and blogosphere, it's clear that conservatives want the case to go up to the Supremes pronto. Some of them may have reasons similar to mine, but others, I suspect, are thinking about political advantage.  They want to get the law struck down nationwide, and they think that the SCOTUS is likely to oblige them.  Maybe they're right, maybe they're wrong about how the case will be resolved by the Nine, but it's interesting to note that they think that a decision by the Court striking down "Obamacare" would be good for their cause.  Now here too, maybe they think it would be good for their cause simply because they think the mandate is unconstitutional.  But I also think that conservative analysts believe that there would be political advantage in winning in the Supreme Court.  The reasoning goes something like this: "If the SCOTUS says the law is unconstitutional, that means it really is unconstitutional, which means the law as a whole is bad."  Certainly, if I were one of Rick Perry's political advisers, I'd prepare a statement saying something like this: "Today's Supreme Court decision shows that Obamacare's government takeover of the health care system violates basic principles of our Constitution."  Mitt Romney would finally have a magic bullet to distinguish the federal law from the one he signed as Massachusetts Governor.  In short, as far as the politics are concerned, on the ACA, Republicans can win by winning.

Conversely, should the law be upheld, Democrats could make the opposite claims.  The Obama announcement would go something like this: "Republicans did not have the votes to prevent enactment of this law controlling medical costs and providing Americans with health insurance, so they tried an end-run in court.  Hopefully, today's decision by a conservative Supreme Court will put an end to such sore-loser tactics."

So, by my analysis, for each side, winning the merits of the ACA case translates into winning the politics of it.  I think the politics are different with respect to both affirmative action and same-sex marriage.  On these issues, it's clear that Republicans win by losing.  Indeed, they may also win by winning.  Affirmative action is broadly unpopular (as evidenced by the fact that even traditionally blue states such as CA, MI, and WA voted to ban it).  Thus, just about any decision that puts affirmative action in the news, and thus raises its salience for voters, benefits Republicans.

Likewise, a broad decision recognizing a constitutional right to same-sex marriage could energize socially conservative voters.  Of course, the issue wouldn't be on the ballot in the 2012 Presidential election, and the President has no formal role with respect to constitutional amendments, but it wouldn't take much for the Republican nominee to exploit the issue by linking it to Presidential appointments to the Supreme Court.  The issue would provide a bigger boost to the Republican nominee if it ends up being one of the social conservatives (currently Perry and Bachmann) than if it ends up being Romney.  Romney would undoubtedly denounce the Supreme Court decision recognizing a same-sex marriage right but the denunciation would not be very credible, given his past positions.

What would be the political implications of a SCOTUS decision rejecting a right to same-sex marriage?  Not much, I'm afraid.  Unlike the Republican nominee in the mirror-image situation, President Obama would be hard-pressed to exploit the decision because he himself has still not "evolved" into supporting same-sex marriage as a matter of policy, much less as a matter of constitutional right.  His Justice Department's decision not to defend DOMA in court is based on the narrow ground that DOMA was motivated by "animus" towards gay people in violation of Romer v. Evans, rather than the broader ground that there is a federal constitutional right to same-sex marriage.  I could see the President evolving all the way to supporting a constitutional right to same-sex marriage after he was re-elected, but not before.  Thus, I think that a Court decision rejecting a same-sex marriage right would have little impact on the 2012 race.

To be sure, all of these issues are probably marginal compared to what the economy looks like fourteen and a half months from now, but in a tight race, they could make a difference.  And by my assessment, there are more ways for the Republicans to benefit politically than for the Democrats.  Needless to say, I'd love to be proven wrong.

Monday, August 15, 2011

Obamacare in Wonderland -- Guest Post by Nick Bravin

Having said just about everything I believe I have to say about the constitutionality of the Affordable Care Act, I am giving over today's post to Nick Bravin, a DC-based lawyer, writer, con law teacher, Olympic fencer, former law clerk to Justice Ginsburg, and once upon a time, sort of my student.  Here's Nick:


Pulsing through the legal and political opposition to the Patient Protection and Affordable Care Act of 2010 is the urgency and paranoia of Henny Penny.  If the law is allowed to stand the sky will fall, Florida District Court Judge Roger Vinson told us in his opinion striking down the Act in January – or worse, the federal government will be able to invade the smallest crevices of our lives, even make us eat broccoli.  On Friday, a divided panel of the Eleventh Circuit affirmed Judge Vinson’s ruling invalidating the individual mandate, if not all of his reasoning.

It’s not Chicken Little, but another fable that comes to mind when you examine the past 200 years of jurisprudence under the Commerce Clause, the constitutional provision on which Judge Vinson and the Eleventh Circuit relied in invalidating the law.

“When I use a word,” Humpty Dumpty says to Alice, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

Over the years the masters of the seven relevant words in the Commerce Clause – in our world, on this side of the looking-glass, called the majority of the Supreme Court – have fluctuated wildly in their interpretation, often depending quite reliably on their view of the role of the federal government. 

The seven words from Article I, Section 8, clause 3 of the Constitution give Congress the power “[t]o regulate Commerce . . . among the several States.”

The first Supreme Court opinion to address Congress’s power under the Commerce Clause was penned in 1822 by Chief Justice John Marshall, a committed federalist.  After brushing aside the argument that Congress’s constitutional powers should be “construed strictly,” Marshall explained that “Commerce” is more than just “buying and selling, or the interchange of commodities.” It is “intercourse,” he concluded, and thus comprehended the power of the federal government to extend to “navigation” of waterways.  “Commerce” equals “intercourse” equals “navigation.”  The words meant just what Chief Justice Marshal chose them to mean, neither more nor less.

It was more than 65 years before Marshall’s expansive interpretation of “commerce” was challenged.  In a series of opinions beginning in 1888, a conservative Supreme Court led by Melville Fuller and a group of pro-corporation ex-railroad lawyers, declared that “commerce” does not include activities such as “manufacture,” “production,” and “mining.” “Manufacture is transformation – the fashioning of raw materials into a change of form for use,” the Fuller Court said in 1888, “The functions of commerce are different.”  Based on similar logic over the next several decades the court struck down federal laws prohibiting interstate transportation of goods produced with child labor or produced in violation of wage and hours restrictions.

The words, “regulate,” “Commerce,” “among,” continued to be parsed.  After Roosevelt’s threatened court-packing plan and the so-called “switch in time that saved nine,” the interpretations of the words changed.  Federal wage and hours laws were now within Congress’s Commerce Clause powers.  The only thing that stayed the same was that the words always meant just what a majority of justices of the Supreme Court said they meant.  Even if they had meant the opposite only a few years earlier.

The apogee of the commerce-is-whatever-Congress-wants-to-regulate era came in the 1942 case Wickard v. Filburn, a unanimous opinion written by the always-eloquent Justice Robert Jackson.  In 1941, Filburn had produced 239 bushels of wheat over the limit set under amendments to the Agricultural Adjustment Act of 1938 – presumably because he did not intend to sell the wheat, but instead to use it on his small farm.  He was fined 49 cents per bushel for his overage, and he sued, arguing that the federal law exceeded Congress’s power under the Commerce Clause. 

The court had no trouble concluding that the federal legislation – which regulated production of wheat that was neither for “Commerce” nor moving “among the several States” – was constitutional. The national wheat market, the court recognized, was complicated and interconnected, and Congress had tremendous leeway to regulate it.  Even though Filburn’s effect on the national market was small, combined with lots of other small farmers exceeding their quotas, the effect could be substantial.  Moving past facile labels and formalistic thinking, Justice Jackson explained Commerce Clause analyses must be guided by the practical:  “[E]ven if [Filburn’s] activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . .”   All nine members of the court chose a meaning of “Commerce” that included eating your own wheat or feeding it to your animals, and a meaning of “among the several States” that included all on one farm within one state.

The message was clear.  For the next 50-plus years, no federal law was struck down on Commerce Clause grounds.  Then, in 1995, a narrow majority in an ideologically-divided Supreme Court struck down the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a gun within 1000 feet of a school.  The court, in United States v. Lopez, held that possession of a gun was not itself economic activity and Congress had failed to make adequate findings to support its contention that guns around schools discourage attendance and disrupt learning, which in turn hurts the economy.

The preceding 200 years of Commerce Clause cases had muddied up the meaning of the seven words so badly the new court majority summed up where we stood and identified three areas to which Congress’s power extends:  (1) “the use of channels of interstate commerce,” e.g. roads, waterways, railroads; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce,” e.g., people and things traveling interstate or the trucks, trains, planes in which they are moving; and, (3) “those activities having a substantial relation to interstate commerce, … i.e., those activities that substantially affect interstate commerce.”

Five years later, in 2000, the court struck down the Violence Against Women’s Act of 1994, bringing certain gender-motivated violence into the federal ambit, despite voluminous congressional findings on the serious consequences such violence had on interstate commerce.  The court, again divided 5-4 along ideological lines, focused on the “noneconomic” nature of the prohibited activity, and concluded it did not fit into the third category; violence against women did not “substantially affect interstate commerce.”

For many, that case, United States v. Morrison, signaled the end of the expansive Commerce Clause.  The counter-revolution, or the counter-counter-revolution more appropriately, was complete. 

Then, in 2005, came Gonzales v. Raich.  The two women who brought the case each had serious illnesses and used marijuana in accordance with California’s 1996 Compassionate Use Act.  But that didn’t stop the feds from destroying the stash of one of the women “after a 3-hour standoff.”  The women challenged the federal drug law, the Controlled Substances Act of 1970, on the ground that it violated the Commerce Clause when applied to the wholly in-state use of marijuana that was homegrown, thus never in commerce.  While the nine justices considering the case were the same ones who had decided Lopez and Morrison, the circumstances of the case led to a different result.  Two of the justices from the conservative majority in those earlier cases – Antonin Scalia and Anthony Kennedy – joined with the four liberals to uphold the validity of the federal drug laws.

If the case makes you think of Wickard, the wheat quota case, you’re reasoning like a Supreme Court justice.  Just as in that 1942 case, the court concluded Congress had the power to control entirely intrastate activities that were noncommercial.  That is what the words of the Commerce Clause meant, the court majority declared, nothing more, nothing less.

As this brief history shows, the Commerce Clause, perhaps more than any other provision of the Constitution, has always attracted tortured readings – from both sides of the Court.  It has also frequently been the axis on which the Court has see-sawed, or flip-flopped, or Humpty-Dumpty’d, if you prefer.  “Manufacturing” and “production” were not “Commerce,” and then they were.  Federal child labor laws and wage and hours restrictions were held to violate the Commerce Clause, and then they weren’t.  Congress’s Commerce Clause powers were sacrosanct, and then they weren’t – except if they were going after pot.

The words of the Commerce Clause, and the cases putting a gloss on it, have always meant whatever the relevant judge has chosen for their meaning.

Judge Vinson’s January ruling, largely upheld on appeal Friday, was no different.  Because the health care law undoubtedly concerns “economic” matters it couldn’t be attacked along the lines of the Gun-Free School Zones Act or the Violence Against Women Act.  Instead, Judge Vinson’s decision turned on the meaning he ascribed to the word “activity,” as in Congress’s power to regulate “those activities that substantially affect interstate commerce.”  The essence of his very long January order is that the decision not to buy health insurance is not “activity” – not that the word “activity” appears anywhere in the Commerce Clause – and regulating inactivity, i.e., requiring an unwilling citizen to purchase private health insurance, is beyond Congress’s power.  The Eleventh Circuit majority eschewed a formalistic activity/non-activity distinction and focused instead on what it characterized as the unprecedented congressional mandate for private individuals to enter into commerce, as opposed to more traditional congressional acts prohibiting conduct or regulating pre-existing commercial conduct. 

The two appellate decisions issued to date have dispelled the facile and cynical predictions about the Act’s judicial fate.  In the Sixth Circuit, a Republican appointee joined a Democratic one in upholding the individual mandate, while another Republican appointee dissented.  In the Eleventh Circuit, a Democratic appointee joined with a Republican one to invalidate the individual mandate while another Democratic appointee dissented.  While the best predictor of a judge’s vote on a controversial political issue may often be the party of the president who appointed her, judges and their legal philosophies are too complicated and nuanced to depend on any single factor.  Besides potentially restoring some notion of the integrity and independence of the federal judiciary, the conflicting outcomes in the Sixth and the Eleventh circuits have assured the Supreme Court will take up the individual mandate issue this term (regardless of what happens in the pending Fourth Circuit appeals).

When it gets there, as usual, all eyes will be focused on Justice Kennedy – remember he voted against Congress’s power to enact laws prohibiting guns around schools and violence against women, but for Congress’s power to criminalize possession of homegrown, home-consumed pot that never crossed a state border.  As a justice who frequently capitalizes the word “Liberty” in his opinions (and defends “states’ rights”), one can expect Justice Kennedy to bristle at the federal command to buy a private insurance product (or pay a penalty for not).  If that’s true and the justices line up along traditional lines, that will leave the government and the Act’s defenders looking for refuge in an unlikely ally. While I don’t imagine many seriously think Justice Scalia would countenance a federal requirement to take any affirmative action, don’t forget he also switched sides in the Raich case and recognized broad federal power. 

And the words Justice Scalia wrote in a separate concurring opinion in that case represent the strongest argument in favor of the constitutionality of the health care law.  First, he emphasizes that the seemingly haphazard readings of the Commerce Clause must be understood in the light of the constitutional provision that grants Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” including the Commerce Clause.  Then, Scalia, always the close and precise interpreter of constitutional language, explains why he chose to read the interstate portion of the Commerce Clause to include noncommercial, intrastate activity: 

“Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants.

* * *

“Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market ‘could be undercut’ if those activities were excepted from its general scheme of regulation, [thus Congress had the power to regulate them.]”

Isn’t that just what Congress tried to do with the individual mandate – facilitate interstate commerce, the functioning of the nation’s medical insurance and health care industries, by eliminating the “potential obstruction” of free riders?  Couldn’t Congress just as reasonably conclude that its objective of creating a single market for health insurance “could be undercut” by allowing those free riders to be the pin prick that lets all the air out of the balloon?   Isn’t that reading much closer to the larger idea and the core meaning of “regulating Commerce . . . among the several States”?  It really comes down to the same question Alice asked:  “whether you can make words mean so many different things.”  The answer may well depend on which side of the looking-glass you’re on.

Fantasy Obama Versus Real Obama

By Mike Dorf

In my latest Verdict column, I take a crack at writing a speech for President Obama based on the assumption that he wants to be more combative as he begins his re-election bid.  In my role as volunteer speechwriter, I adopt a more partisan tone than in my usual writing, on the theory that this is what the genre requires--even though Obama himself, to this point, has tried to appear above the fray.  I had the idea for the column early last week (when I thought I would write it as a blog post), and so I felt a bit prescient when, on Friday, he delivered a speech that, as reported about, appeared to go in the direction I was suggesting in my (then-written-but-not-yet-published) proposal.  After I watched and listened to the Obama speech, however, I concluded that the real version fell short of my fantasy version in at least three respects.

So, go read my column, imagining the 2008 campaign Obama delivering it.  Then spend a few minutes with the following real version:

Now to three deficiencies of the real Obama speech:

1) In my fantasy speech, I have Obama go through the motions of sounding post-partisan but then deliver some very pointed attacks at the Republican Party, which he mentions by name, repeatedly.  My fantasy speech takes the gloves off when it comes to assessing blame.  The real speech also tries to have it both ways, but errs much more on the side of post-partisanshipitude.  Real Obama says that "some in Congress would rather see their opponents lose than see America win."  (Emphasis added.)  That's close to the attitude I'd like to see Obama adopt, but still sounds too much like he's campaigning against both Democrats and Republicans.  The line should have been written this way: "Many Republicans in Congress would rather see Democrats lose than see America win."

It can be argued, I suppose, that in order for Obama to maintain his post-partisanshipiness, he needs to avoid direct attacks.  But given a choice between opening himself up to charges of insincere post-partisanness and continuing to take punches without fighting back, I'm with Chuck Schumer (as reported here) in thinking that it's far better to err on the side of calling out Republicans.  Indeed, I don't even think this can be fairly characterized as hypocrisy.  Having repeatedly extended an olive branch, only to have it snatched by Republicans who used it to poke him in the eye, Obama can credibly say, "I sincerely would like to move beyond partisanship, but I can't do it alone."

2) Obama's delivery is lifeless.  Maybe the President is feeling depressed because of the way the economy is going or because of how Republicans, liberals, or the press have been treating him.  My view is that he needs a raucous crowd to energize him.  So my advice to the White House on this score is to stop putting out speeches in which the President sits in an empty Oval Office and speaks into the camera.  The only clips released to the public should be from speeches on the stump, where he is more emotional and thus much more charismatic.

3) On policy, the President is playing small ball.  In Friday's speech, he proposes the kinds of initiatives that Republicans could support and have supported in the past: tax incentives for businesses to hire; trade deals; patent reform; etc.  Some of these may be good ideas but neither singly nor collectively are they likely to have more than a tiny impact on the overall health of the economy.  By contrast, my proposal--money to states and localities to hire a million public employees, more than funded by expiration of the upper end of the Bush tax cuts--would actually do some good and would highlight the one very stark ideological difference between Obama and the Republicans.  Moreover, Obama has been in favor of the tax proposal since day one, so these are natural positions for him to take.

The NY Times story linked above for the Schumer quote also says that there is now a struggle going on within the White House over whether to continue in above-the-fray mode or to go into attack mode.  I'm glad to see that there's somebody on the inside arguing for the latter (Gene Sperling, as it turns out).  Here's hoping the President listens and then rediscovers his voice.

Friday, August 12, 2011

A More Interesting Supreme Court Term Coming Up

By Mike Dorf

The Supreme Court Review Session at the Practicing Law Institute last week was, as anticipated, great fun and very informative.  There was some disagreement among us panelists about whether to characterize the 2010 Term as "boring," but a general consensus emerged that the coming Term promises to be more exciting.  That assessment certainly was not based on the cases already on the Court's docket.  There are a few mildly interesting questions:  whether the police need a warrant to attach a GPS tracking device to a car; the scope of the "ministerial exception" to Title VII; and whether FCC indecency regulation is unconstitutionally vague.  But none of these is a blockbuster.

The anticipation of importance relates to the following issues that will be posed in cases that are likely to come to the Court within the next several months: 1) Whether the individual mandate of the Patient Protection and Affordable Care Act is within Congressional power? 2) Whether the Defense of Marriage Act is valid?  3) Whether there is a constitutional right to same-sex marriage?  and 4) What is the standard for judging race-based affirmative action programs at state universities now that Justice Kennedy, rather than Justice O'Connor, is the median Justice on this issue.

Can and will the Supreme Court duck any of the aforementioned issues?  Let's consider them in turn.

1) So far only one federal appeals court, the 6th Circuit, has ruled on the constitutionality of the PPACA, upholding it.  That, in itself, may be all the SCOTUS needs to justify granting cert, and indeed, political considerations aside, that's what I would counsel.  We have here a major piece of federal legislation.  There have been doubts raised about its validity, and they are sufficiently substantial to have led district judges to invalidate it.  Why wait?  Well, one answer might be that the Justices want to be taken off the hook.  If all of the circuits uphold the mandate, then the Court can tell itself that the doubts have been resolved.  But this seems unlikely, especially if one of the circuits invalidates the mandate, at which point the issue will be unduckable.

2) The validity of DOMA is still pending before the First Circuit, and has been raised in litigation that will eventually go to the Second Circuit.  As currently configured, Congress is extremely unlikely to repeal DOMA, so its validity will not be mooted by legislation.  If a circuit court invalidates DOMA on any ground, I would expect the Supreme Court to grant cert.  I could see the Court taking the case even if DOMA is upheld in the circuit courts, but that seems somewhat less likely.

3) Depending on how the lower courts resolve the issues, a DOMA case could present the question whether there is a constitutional right to same-sex marriage (or it could simply present a federalism/full-faith-and-credit question).  The direct same-sex marriage question could also be presented by the Ninth Circuit litigation over Prop 8.  That case continues to be stalled, and the procedural questions regarding standing could mean no ruling on the merits for another year or more.  If the Ninth Circuit reaches the merits, and finds a right to same-sex marriage, and that ruling survives en banc reconsideration, then I would expect the Court to take the case.  But I think the odds are somewhat against all of that happening in time for the SCOTUS to hear the case in the coming Term.

4) The affirmative action case hasn't gotten much play in the national press, but it's potentially a big one.   Here's Judge Edith Jones, writing for herself and four other conservative 5th Circuit judges, dissenting from the denial of rehearing en banc in Fisher v. Univ of Texas: 
By a narrow margin, this court has voted not to rehear this case en banc. I respectfully dissent. This panel decision essentially abdicates judicial review of a race-conscious admissions program for undergraduate University of Texas students that favors two groups, African–Americans and Hispanics, in one of the most ethnically diverse states in the United States. The panel purports to apply the Supreme Court's decision in Grutter v. Bollinger, which authorized some race conscious admissions to Michigan Law School to foster educational “diversity.” The panel's opinion, however, extends Grutter in three ways. First, it adopts a new “serious good faith consideration” standard of review, watering down Grutter's reliance on strict narrow tailoring. Second, it authorizes the University's race-conscious admissions program although a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity. Finally, the panel appears to countenance an unachievable and unrealistic goal of racial diversity at the classroom level to support the University's race-conscious policy. This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires.
That's what's known in the trade as a cert petition masquerading as a dissent.  I think the Court will grant.  So, if I had to bet, I'd say that the Court hears the individual mandate and affirmative action cases this Term, but not the DOMA or same-sex marriage case.  I wouldn't bet a lot, though.

Postscript:  Earlier in the week, I promised to take a crack at a stump speech for President Obama.  By the time I finished, it was long for a blog post, so I'm going to run it as a Verdict column next week--along with an accompanying post.