In Search of Limiting Principles

By Mike Dorf


Updated with CNN link.


I have a new piece on CNN.com explaining my view that the health care litigation poses an unimportant legal question but an important political question.  Meanwhile, my latest Verdict column analyzes Tuesday's merits argument in the health care litigation through the lens of three sets of hypothetical questions, each of which poses the problem of how the lawyers would cabin the principles they respectively espouse to win the case.  As I note in the column, for the plaintiffs, there were two hard questions.


1) Justice Breyer's question: If the federal government cannot impose affirmative mandates, does that mean that, e.g., the federal government could not require inoculation against a deadly communicable disease?  Aren't there other vital things the federal government needs to mandate?  E.g., jury duty, the draft.  As I read the plaintiffs' answers, they would like to limit their no-mandate rule to the Commerce Clause on the textual ground that it authorizes regulation of existing commerce.  The government, of course, says that this very case involves existing commerce (more on that below in point three), but even if one disagrees, the plaintiffs' response still founders on Justice Breyer's question, in which the inoculation mandate is predicated on the interstate commercial effect of non-treatment of the disease.


To be sure, during the oral argument, Justice Breyer may have undermined the effectiveness of his hypo by appearing to agree with Michael Carvin (for the NFIB) that the argument for federal power in the inoculation case is of a piece with the argument for federal power in United States v. Morrison, where Breyer dissented from the Court's holding that Congress lacked the power to enact the civil remedy provision of the Violence Against Women Act.  That made it look like the Court had already effectively rejected the notion that Congress could impose an inoculation mandate to combat a deadly disease in Morrison and that Justice Breyer was simply trying to re-open the issue.


But that appearance is false.  In Morrison the Court held that gender-motivated violence is not economic activity and thus not regulable under the Commerce Clause, given that regulation of gender-motivated violence is in no way connected to some larger regulatory scheme.  But that objection does not apply in the inoculation hypo.  Consider a slight variation: Suppose that instead of requiring inoculation, the federal government sought to quarantine already-infected people in their homes on the ground that leaving their homes would spread the disease.  Wouldn't that be a valid exercise of the Commerce Clause on the ground that spreading the disease is economic activity (albeit harmful economic activity in the way that the economic activity of growing marijuana is harmful in the Raich case)?  And if the federal government can quarantine on this ground, then it can inoculate on this ground--unless the Commerce Clause distinguishes between mandatory quarantines and mandatory inoculations.  It might so distinguish if there is a prohibition on the regulation of inactivity, but if so, that's got nothing to do with Morrison.


2) The plaintiffs also faced a very hard question from Justice Sotomayor about the tax power.  As I explain in the column, I thought that Paul Clement's answer was just wrong, while Mr. Carvin's answer was necessarily formalistic.  My sense from the oral argument was that there aren't five votes to sustain the minimum coverage provision as a tax, but that the reasons for that position aren't at all clear.  I think the best that can be said against sustaining it as a tax is that some people who are subject to the mandate are not subject to the penalty if they don't pay it.  But to mind that means that at most the Court ought to strike down the mandate (if it cannot be sustained under the Commerce Clause) as applied to the people subject to it but not subject to the penalty.  And because most such people will be eligible for other forms of health insurance (like Medicaid), striking it down as applied in this way would not do much violence to the rest of the Act.


3) That brings me to the hard question that was posed for Solicitor General Verrilli: What is the limiting principle?  Justice Alito asked him this question point blank.  The SG offered two limiting principles. Here I will quote what he said in full:

[a] When Congress is regulating -- is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme.

 [b] With respect to the -- with respect to the -- considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the -- the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.

A number of people have been criticizing the SG for his performance and I don't mean simply to pile on, but I'm afraid that I agree with the criticism.  I have no doubt that SG Verrilli worked extraordinarily hard to prepare for this case, but his answer to Justice Alito was poor.   Proposition (a) seems to be saying that Congress can regulate something--activity? activity or inactivity?  economic stuff?--when doing so is necessary to counteract a risk created by its regulation of something else.  Okay, perhaps, but that's not a limiting principle.  A limiting principle should include a limit.  It should not only say what Congress can regulate but also what it cannot regulate.

Proposition (b) is a very inartful way of saying that the limiting principle is defined by the facts of this case.  But surely the SG does not mean that.  Is he saying this case is unique?  Why?  Simply restating what the law does is not the same thing as explaining why other laws that do other things would not be valid.


SG Verrilli should have rehearsed a one-sentence answer to the limiting-principle question and should have had some simple examples of things Congress cannot do.


How would I have answered Justice Alito's question?  As a substantive matter, I would not have conceded that there is any general prohibition on the regulation of inactivity, although I would have made the government's argument as an alternative point.  I would have said more or less the following (which I would have rehearsed and had on a piece of paper at the podium):

This Court's cases already establish a limiting principle.  If the regulation does not concern the channels or instrumentalities of interstate commerce, then Congress may enact laws regulating either "economic" activities--as in Raich but not Lopez or Morrison--and Congress may also enact laws that do not regulate economic activity where doing so is part of a comprehensive scheme that regulates interstate commerce--as Justice Scalia's concurrence understood the law at issue in Raich and as Justice Alito's concurrence understood the law at issue in Comstock. Those are the limiting principles this Court has already established, and they're fully operative here.

Now, let's apply the test, including its limiting principles.  The mandate is valid under either prong.  Congress may regulate the timing and manner of the purchase of health services, which is a kind of economic activity, or, in the alternative, the mandate is necessary and proper to the comprehensive scheme Congress enacted governing health insurance. 

Even accepting the plaintiffs' characterization of the minimum coverage provision as regulating inactivity, the prior limits remain.  The Gun Free School Zones Act (invalidated in Lopez) and the civil remedy provision of the Violence Against Women Act (invalidated in Morrison), are still beyond the scope of the Commerce power.  Acknowledging a "mandate power" in Congress would not enable Congress to circumvent those limits.  Thus, sustaining the mandate would in no way give to Congress a police power.

Finally, if the Court is worried that sustaining the mandate would license Congress to mandate economic activity as a general matter, the Court could easily announce a rule that Congress may not require economic activity where its only plausible rationale for doing so is simply to push people not fairly characterized as already engaged in current market activity, or likely to be engaged in future market activity, into such activity.  Under such a principle, if Congress simply wants to encourage market activity, it must use prohibitions of the Wickard v. Filburn sort rather than affirmative mandates.  We think this further limiting principle is unnecessary because it's implicit in what the Court has already said in Lopez and Morrison, but we have no objection to its adoption.

I'm not saying that's a perfect answer, but I do think that it's a substantially better answer than the SG actually gave, and I only took about 15 minutes to come up with it.  Surely the government should have prepared better for what everyone knew was going to be the key sticking point of the case.

The Anti-Education President

-- Posted by Neil H. Buchanan

I'm a bit under the weather today, so I'll just encourage readers to take a look at my new Verdict column: "An Educated Population Is Essential to a Nation’s Prosperity, yet Some Politicians Are Demonizing Our Educational System for Political Advantage." In less than a generation, we've gone from conservative presidential candidates promising to be "the education President" to saying (in Romney's almost exact words): "Find a cheap college, and don't expect help in paying for it." Oy.

Miranda Custody and Standing Your Ground

On Justia's Verdict today, you can read the second of a two-part series in which I analyze the Supreme Court's recent decision in Howes v. Fields, holding that a suspect serving jail time may be interrogated by police without receiving the Miranda warnings, because being incarcerated does not necessarily qualify as  "custody" for purposes of triggering an entitlement to warnings.  I take the position that this ruling represents a departure from both the precedents and the underlying philosophy of Miranda v. Arizona.

In the Dorf On Law blog post that appeared here last week, I argued that to suggest that a person can be in jail but not in custody is fundamentally dishonest in ways that anesthetize our conscience against reacting to what may in truth be grave wrongdoing, a function served by dishonest language in other contexts as well, including the use of the word "necessary" in describing practices required to satisfy consumers' demand for animal-based products such as dairy, eggs, fish,and meat.

In this post, I want to call attention to an interesting disparity between how people with right-leaning and left-leaning political alignments, respectively, view the criminal justice system in two seemingly similar contexts.  One context is the interrogation of a detained criminal suspect awaiting trial or serving a sentence.  The other is the arrest of a person suspected of committing murder.

As we see in Fields, the Supreme Court expects criminal suspects who are incarcerated to feel free to assert their rights and resist the interrogation efforts of law enforcement officials.  Randall Fields, for example, was serving a jail sentence at the time that he was brought to an interrogation room and questioned by armed officers for at least five hours into the night.  Yet, because of an assortment of facts -- including that the officers who interrogated Fields did not physically restrain him and that they told him he could return to his cell -- their interrogation of him did not, in the Court's opinion, impose the sort of pressure experienced by suspects in "custody" and thus triggered no obligation on the part of the officers to provide the warnings.

If Randall Fields felt anything but free to cut off questioning at any time, it was his own internal, subjective experience that was to blame rather than the fact that he was incarcerated and underwent prolonged questioning about a serious criminal offense.  The officers were accordingly not required to notify him of his rights.

Though the U.S. Supreme Court's views here do not entirely track that of right-wing ideologues, there is substantial overlap, and the Court's resolution of the Miranda issue in Fields is generally in keeping with a characteristically conservative, "tough on crime" approach.  Liberals, on the other hand, have found the Court's decision in Fields disappointing and regard the suspect's alleged freedom to cut off questioning illusory.

Turn now to the "Stand Your Ground" ("SYG") laws of the sort that Florida has.  These laws have lately come into the news because after George Zimmerman shot and killed seventeen-year-old Trayvon Martin last month, Zimmerman managed to avoid being arrested on the spot for the homicide, an  outcome for which the police have cited the SYG law.

For this post, I will put to one side the argument that the SYG law did not in fact dictate that police allow George Zimmerman to remain free after he killed an unarmed Trayvon Martin.  Whatever one might think of SYG laws, my reading of the one in Florida does not strike me as prohibiting the arrest of George Zimmerman under the circumstances.  Nonetheless, the police and Florida prosecutors evidently understand the law to do precisely that, and the the number of Florida homicides deemed "justifiable homicides" since passage of the SYG law has reportedly tripled as a result.  This understanding, in turn, means that when a suspect says that (a) he felt scared of being killed by another civilian, and that (b) notwithstanding his fear, the civilian chose to remain the presence of the feared civilian and even to follow the latter to avoid losing sight of him, then the suspect was entitled to use deadly force against the civilian rather than, for example, choosing not to follow the feared civilian at all.

Assume that the Florida law -- a law that, like the twenty-three other SYG laws, reflects successful lobbying efforts by the right-wing American Legislative Exchange Counsel ("ALEC") -- protects the use of deadly force under these circumstances.  This means that if a person feels afraid of being killed by another person, regardless of whether the other, feared person said or did anything suspicious to reasonably give rise to such an extreme state of fear, the law is prepared to honor the fear of the frightened person even to the point of protecting his right to pursue his target and use deadly force.  The police, in turn, must defer to the asserted fear of the suspect and overlook the circumstances that suggest that there was nothing for the suspect to have legitimately feared.  Police must refrain from arresting the man who first pursued and then killed an unarmed civilian, because the man asserts that he felt scared.

Note the juxtaposition between Randall Fields and George Zimmerman:  a prisoner in an interrogation room with armed officials who interrogate him for  five hours is presumed to be fully capable of asserting his right to remain silent (and retreat to his cell).  A free civilian on the street who sees a "scary" person is, by contrast,  presumed to have a legitimate fear for his life, despite the fact that he not only has the option of retreating but can actually just stop following the source of his fear, as he was specifically advised that he could do by a police operator whom he had called to report his fear in the first instance.

Police need not concern themselves with the fear experienced incarcerated convicts confronting armed interrogators for hours into the night.  But police may not even reject the assertions of a free person chasing and then gunning down a skinny teenager who allegedly looked suspicious.  What distinguishes the two cases, for conservatives who favor such potentially inconsistent outcomes?

One possible distinction is that in one case, Fields, the suspect in question was afraid of the government, and in the other, the suspect was afraid of a civilian.  This difference should not help George Zimmerman, however, because the premise of the Court's decision in Fields is that suspects may reasonably fear the police in some circumstances (e.g., when police place them under arrest) but not in others (when they are seasoned prisoners, used to jail, and no longer shocked by it).  Similarly, we might expect that suspects could reasonably fear other private people in some circumstances (e.g., when the private people are visibly armed and chasing them) but not in others (when the private people are walking and then running away from them).

In both cases, in other words, a suspect allegedly felt fear and then acted on that fear (in one case, by killing a child, and in the other, by reluctantly providing self-incriminating statements to police during a five-hour interrogation).  Law-and-order conservatives accept the first one's fear but reject the second's.  Criminal procedure liberals, on the other hand, reject the first one's fear but accept the second's.  Why?

My suspicion is that people, including judges, scholars, and others who take a position in these cases, find themselves identifying with one or the other protagonist/suspect in the two dramas but not the other.  Liberals identify with the suspect in Fields, because they can imagine a decent person finding himself behind bars for a crime that he either did not commit or that does not merit incarceration.  They imagine themselves in Fields's shoes and find the notion of long, unwarned interrogation invasive and oppressive.  At the same time, they do not identify with George Zimmerman, because they either reject his claim of fear or believe that if he was scared, he should not have chased Trayvon Martin.  While Fields might have felt unable to retreat from the police, in other words, George Zimmerman could easily have done something short of retreating by remaining in place, yet he chose instead -- with the law's apparent protection -- to pursue and kill.

For law-and-order conservatives, on the other hand, Randall Fields was in prison and therefore almost certainly belonged there.  As such, he had no reason to be afraid, because whatever conditions prevailed in prison were just and fair conditions, and he would have had the opportunity to understand that truth after living there for a while.  He accordingly did not need any warnings and could easily have asked to return to his cell if he did not want to answer questions.  Conservatives, in other words, identify with the police in this circumstance and presume that the police were decent, law-abiding people who treated Fields appropriately and could have given rise to no legitimate fear on Fields's part.  In George Zimmerman's case, by contrast, some conservatives may identify with his fear of teenagers in hooded sweatshirts who seem out of place and want to do something about it.

To state the differing identifications is to highlight an important fact about the sorts of debates that liberals and conservatives tend to have:  the role of state action, even within the criminal justice system, is less important than it may seem.  Randall Fields -- in jail for disorderly conduct and wishing he were read Miranda warnings by his interrogators -- is a private person.  George Zimmerman -- calling the police to report a "suspicious" character and then pursuing his prey and shooting him dead in "self defense" -- is also a private person, one who wishes not to be arrested for ending a young man's life.

Neither liberals who side with Fields and against Zimmerman nor conservatives who side with Zimmerman and against Fields can claim to be "rugged individualists," because they oppose the government's intrusion on individual freedom in only one of the two cases.  What distinguishes the two situations, however, concerns me greatly.  In both instances, someone exercised power over someone else who failed to successfully resist that exercise of power:  Randall Fields submitted to police interrogation, indicated his displeasure in an unassertive manner (by saying that he did not want to continue to talk to the deputies), and ultimately provided a confession.  George Zimmerman, on the other hand, responded to his fear by pursuing and killing the man who made him afraid.  Randall Fields acted in a stereotypically submissive fashion, while George Zimmerman behaved in a dominant, stereotypically macho fashion.

Why does this trouble me?  I worry about what I regard as an inclination to identify with the character who responds to his own fear by lashing out violently.  People may imagine themselves feeling nervous after seeing someone on the street whom they fear (perhaps out of racism, perhaps not) and fantasize about turning the tables and making the scary person run for his life.  That fantasy of triumph is fine as fantasy.  But the reality is people will regularly experience fear without being in actual danger -- our danger-detection circuitry, in other words, has a high rate of "false positives."  This is one of the reasons that the common law historically asked private individuals to retreat, if it was safe to retreat:  it was not because the threatening criminal is entitled to dictate where the frightened people go, but because of the potentially enormous chasm between the fear in the mind of the would-be vigilante and the reality on the street.

To take a more nuanced approach to the stories of Randall Fields and George Zimmerman is to understand that each of them had a perspective and a set of fears and assumptions that played a role in determining their behavior.  I do not fault either man for feeling scared -- they felt what they felt, and who am I to condemn an emotional state?  Indeed, if George Zimmerman had felt scared and crossed the street when he saw Trayvon Martin, some would consider his behavior rude, but we ought to be prepared to tolerate overly-self-protective but insensitive behavior from an anxiety-ridden person.  Deadly force, on the other hand, should  require something more.

Fields's approach to fear in the interrogation room -- when in doubt, submit to authority -- poses far less of a threat to the public safety than Zimmerman's approach to fear on the street -- when in doubt, chase down and shoot to kill.  To approve of Zimmerman's behavior (or of a law that would treat it as legitimate) is to embrace violence as the preemptive antidote to fear, an embrace that brings us that much closer to a Hobbesian state of nature.

Posted by Sherry F. Colb

Healthlawpalooza, Part 2: The Element of Surprise

By Mike Dorf


Today the Supreme Court hears oral arguments on the validity of the mandatory coverage provision (mcp) of the Affordable Care Act.  As I noted yesterday (in point 5), even if the Court were to strike down the mcp, it would be child's play for Congress to re-enact it in a slightly different form to accomplish the same purpose, and have the new version sustained.  Nonetheless, the political and policy stakes are very high because the Congress that enacted the ACA has changed enough since the 2010 midterm election that a judicial decision to invalidate the mcp would effectively be irreversible by Congress.  Thus, if one thinks, as I think and as many health economists think, that w/o the mcp, the ACA would be substantially less effective at getting healthy people into the insurance pool than it would be with the mcp, a decision by the Court invalidating the ACA would be a major policy blow.

Here I want to consider whether that should matter, and if so, in which direction.  To be clear about the question I am asking, let's suppose the following three propositions:

(1) The Court would be prepared to rule that if Congress had labeled the penalty for failure to comply with the mcp a "tax," the mcp would be valid;

(2) If the Congress that enacted the ACA in the first place were faced with the aftermath of a SCOTUS ruling invalidating the mcp, that Congress would have amended the ACA in short order to relabel the mcp non-compliance penalty a "tax";

and

(3) Since the 2010 midterms and for the foreseeable future, Congress will be either Republican-dominated or sufficiently divided (with 41 or more Republican Senators) that no legislation fixing or otherwise amending the ACA will be possible.

Whether or not you think all three of these propositions are true, please just assume them arguendo, because they help frame what strikes me as an important question: In these circumstances, should the Court be equally willing, more willing, or less willing to strike down the mcp on somewhat formalistic grounds than it would be if the Congress that enacted the ACA were still sitting?

The argument for equally willing is straightforward enough.  There is an obvious sense in which such considerations should be completely irrelevant.  The Justices' job is not to say whether the ACA is a good or bad idea, or whether a workaround of an invalidating decision would be a good or bad idea, but simply to make their best judgment about whether the Act falls within the powers of Congress, and let the chips fall where they may.

That's the official story, certainly, but as legal realists have been noting for over a century, where there is at least some wiggle room in the law, we expect judges to be influenced by matters outside the formal legal materials and tests. Moreover, the Court's own cases sometimes expressly consider such issues as its proper role and relationship to the political process.  For example, in establishing standards of judicial scrutiny and review for particular domains, the Court will consider whether the political process can be trusted to work fairly.  Indeed, the late John Hart Ely's account of judicial review--which remains extraordinarily influential--placed considerations of the fairness and inclusiveness of the political process at the heart of his account of judicial review.  It's thus fair to expect that at least implicitly, the Justices will give some consideration to the opportunities for the political process to respond to whatever the Court does.

So which way do the politics cut?  On the plaintiffs' side, I think one might say that the rise of the Tea Party in the 2010 midterms was fueled in part by popular opposition to the ACA, so the fact that the current Congress would not try to work around a decision invalidating the mcp just shows that such an invalidating decision would not be counter-majoritarian in any strong sense.  Arguably that fact should lead the Court to be willing to be less deferential to the ACA than it might otherwise be, but at the least, the plaintiffs would argue on this point, the Court should be willing to impose (retroactively) any formal rules it wants to impose, and if Congress can't get around those rules because of the changed politics, that's not the Court's fault.

Another way of putting the plaintiffs' perspective might be this:  Isn't it better--from the viewpoint of preserving space for democratic decision making--for the Court to announce formalistic doctrines that can be readily circumvented by political actors if they really want to, than for the Court to simply shut down all possible responses?  And if so, then you shouldn't complain if, when the Court sends an issue back to the political domain for a "second look," the legislature backs down.  Seen this way, the argument is a variant on what Judge Guido Calabresi (when a mere professor/dean) called a "constitutional remand."  His idea was that in certain cases the courts should provisionally invalidate a law, requiring the political branches to reaffirm it a second time if the legislature really wants the law.  Constitutionally motivated clear statement rules work much the same way.  And if it turns out that between the first enactment and the second look, the legislature's membership has changed, well, that's just the price of skating close to the constitutional line: Calabresian second-lookism and clear statement rules are designed to get the political branches to reconsider, and that's going to take time, during which elections will happen.

That's all fair enough, I think, but I'm still highly dubious of the approach here.  Why?  Because Calabresi's second-look, or clear-statement rules for laws that approach the edge of constitutional authority, are designed to protect some underlying constitutional value, whereas the principle sought by the plaintiffs--Congress cannot regulate inactivity--appears to be formalism for formalism's sake.  The Court, if it were to hold that Congress can impose the mcp as a properly labeled tax but not as a "mandate," would not be saying that the tax version would be close to the edge but allowed because Congress had insisted on it; the Court would be saying that the properly labeled tax version would be within the core of Congressional power.  So what's the point of the formal rule?

Relatedly, there is an element of unfair surprise that attends the judicial adoption of any interpretive rule designed to affect Congressional behavior.  It's one thing to strike down or narrowly interpret a law that fails to clearly state some proposition that the Court has itself previously said must be clearly stated.  But when the Court invalidates or narrowly construes a law because it lacks a clear statement that the Court is first requiring in that very case, the Court treats Congress rather arbitrarily.  Thus, here, for the Court to first invent a prohibition on regulating "inactivity" after Congress has regulated what the Court deems inactivity has an element of unfairness.

To be clear, I'm not saying the Court should never do this sort of thing.  Case-or-controversy norms will often make it difficult for the Court to give Congress advance warning of some new doctrinal rule that, if known in advance, would affect the form of legislation.  But at least the Court ought to have a very good reason for the underlying prohibition and, as I have said, the prohibition on regulating inactivity strikes me as either formalism for formalism's sake or libertarianism masquerading as federalism.

Healthlawpalooza, Part 1: The Main Points

By Mike Dorf


Today the Supreme Court begins the first of three days of oral arguments on issues surrounding the constitutionality of the minimum coverage provision (aka the "individual mandate") of the Patient Protection and Affordable Care Act.  Over the last week I have been giving sound bites to the press covering the arguments, but the truth is I have only one substantially new point to add to what I--and many others--have been saying for the last couple of years.  My post tomorrow will elaborate that one new thing, but for today I thought it would be useful to recount what I believe are the main points:

1) Today's argument will focus on the tax Anti-Injunction Act.  As a matter of plain old statutory construction, the Anti-Injunction Act objection to the Court's even resolving the merits now is reasonably strong--at least given the terms in which the issue has heretofore been argued.  Yet delaying merits adjudication would potentially lead to the waste of billions of public and private dollars, and so there is a strong practical imperative for the Court to reach the merits.  The cleanest way for that to have happened would have been for Congress to enact a special-purpose exception to the Anti-Injunction Act, but apparently the politics on the Hill wouldn't permit that.  The Court still has a principled way to reach the merits without twisting the Anti-Injunction Act by placing emphasis on the fact that where, as here, the exaction at issue has not yet been triggered, a suit to block the law would not be a suit to block the "assessment" or "collection" of taxes.  Neil Siegel and I elaborated this argument earlier in the year in the Yale Law Journal Online.

2) Tomorrow the Court will turn to the merits of the challenges to the minimum coverage provision.  The Court could--and in my view should--duck the Commerce Clause question by simply upholding the minimum coverage provision as a tax.  It's true that there are old cases limiting the ability of Congress to regulate through taxes, but the more recent cases make clear that so long as an exaction has some revenue-generating purpose, then it is sustainable as a tax.  And this makes sense.  As a policy matter, it is preferable for the government to tax socially harmful activities (such as gambling or cigarettes) than socially valuable ones.  To be sure, there is the caveat raised in Professor Buchanan's recent Verdict column, that sometimes a tax on a productive activity like work can incentivize people to work more, but certainly there should be no constitutional rule forbidding Pigovian taxes or other taxes that have regulatory effects.  And in any event, even if one requires that the revenue effects be substantial, that standard is met here.  The penalty for failure to obtain minimum coverage is substantially smaller than the cost of obtaining health insurance, and so its regulatory impact is not enormous: Many people will choose to pay the penalty rather than buy insurance.  Thus a substantial purpose and effect of the penalty provision is to defray some of the cost that the uninsured impose on the health care system, which puts the penalty at the core of the taxing power.  I must admit that I find it a little bit mysterious that even lower court judges who thought the law valid on Commerce Clause grounds have tended not to be sympathetic to the tax power argument.

3) As far as the Commerce Clause argument goes, after all that has been said, I remain convinced that the plaintiffs' proffered distinction between regulations of activity and inactivity should be rejected, for the reasons I first elaborated in November 2009.  If anything, doctrinal developments since then--especially the Comstock decision--buttress that conclusion.  To my mind, the activity/inactivity distinction was always a libertarian argument masquerading as a federalism argument.  For reasons I also elaborated in fall 2009, I do not think the libertarian argument is sound on its own terms, but it is not even properly presented in the current litigation.  Accordingly, if this were a low-stakes case, I would confidently predict that the Supreme Court would uphold the law, probably by an 8-1 margin--with only Justice Thomas, who expressly takes a pre-New Deal view of federal power, dissenting.

4)  What are the stakes?  The constitutional stakes are quite low.  As I explained in a column last fall, the question whether Congress can regulate "inactivity" is unimportant over the long run.  The Supreme Court should not adopt a rule forbidding Congress from imposing affirmative obligations for three chief reasons: a) the distinction is made up out of more or less nothing other than language taken out of context from prior cases; b) the distinction has no logical connection to the Commerce Clause and would need to be accompanied by exceptions for the draft, for mandatory vaccinations, for federal jury duty, and potentially other vital mandates; and c) the distinction would serve no functional purpose.  But because of factor c), if the Court nonetheless were to adopt the activity/inactivity distinction, it would make little difference over the long run.  As in other contexts where the Court has imposed formal limits that serve little or no functional purpose, Congress could readily evade the limit by restructuring an affirmative obligation as an incentive, a tax, or a condition of some otherwise regulable activity.  Sure it's a bad idea for the Supreme Court to make up pointless doctrines, but the Court has done it before and, so long as those doctrines can be evaded, no one is much the worse for it.

5) But that's over the long run.  Over the short to medium run, the political stakes are very high.  The ACA is the most significant expansion of a federal health program in at least two generations, purchased at considerable political cost to the Democratic Party in Congress and President Obama.  Although Congress could re-write the ACA so as to reimpose the substance of the mandate after a Supreme Court decision striking it down, we know that in fact Congress wouldn't do so--at least not unless and until there were a very substantial shift in the balance of power in Congress.  With low doctrinal stakes and high political stakes, the case is, as I said in last fall's column, more similar to Bush v. Gore than any case in recent memory.

6) For that reason, I have difficulty making a confident prediction about the outcome.  Evaluated through the frame of ordinary doctrine, the litigation looks like a slam-dunk for the government.  But evaluated through the political frame of Bush v. Gore, the result seems about as predictable as a 7-10 first-round matchup of March Madness.

You Can Make a Billion Dollars and Never Pay Taxes!!

-- Posted by Neil H. Buchanan

Each time I teach the basic Federal Income Taxation course, I have the mixed pleasure of teaching the famous case of Eisner v. Macomber. The 1920 case is included in nearly every tax law casebook, although it is not clear why. Our income tax system includes something called the "realization doctrine" (which I will explain momentarily), and Macomber is a foundational case in that area of law. Even so, the Supreme Court's reasoning in Macomber is so muddled -- one might even say, so ridiculous -- that the case is arguably more trouble than it is worth, in the context of trying to teach tax law. (The case is bad on tax, and simply embarrassing on constitutional law.)

Why do I continue to teach the case, as I did again just this week? In part, I do so because everyone else does so. Macomber is one of those cases that should be part of the shared knowledge of everyone who has studied the income tax. That might not be a good thing, but I am in no position to change that reality. Given the frustratingly daffy reasoning of the case, however, every professor who teaches it has to come up with some way to make it more than merely another exercise in laughing at the Supreme Court.

Many cases are difficult to teach because the facts are so idiosyncratic. Especially with older cases, the likelihood is that the technologies and social norms that drove the parties' actions are, at best, quaint. In such cases, the best pedagogical choice is to soft-pedal the facts and focus on the legal rule that emerges. In Macomber, by contrast, the facts are so current and so relevant to today's policy debates, that the case can motivate students to think about current legal debates more productively.

First, however, it is best to return to the realization doctrine. The U.S. income tax includes a rule that says that increases in the value of property -- even though they are clearly income, because they make a person richer -- are not taxed until they are "realized." Setting aside huge complications, that means that you do not pay tax on your gains until you sell the property for cash. So, if I own a piece of land, and it starts to rise in value because the local government re-zones the area for residential development, I do not have to pay tax on the gains until -- that is, unless -- I sell the land. Similarly, if I bought shares in Apple a generation ago, I do not have to pay income tax on the gain unless I sell the shares.

But I will have to sell the shares some day, because I need money to live, right? Not necessarily. If I know that I will pay tax on any realized gains, it will usually be better to borrow against the value of my property (at very low interest rates, because the loans will be backed by rock-solid collateral). It is, therefore, possible to put off paying tax on any gains on my property holdings, essentially forever. By contrast, I can avail myself of the tax advantage of losses by selling any property that has gone down in value at any time, reducing my taxable income.

When I explain this to my students, it becomes necessary to explain why dealings in property -- which are, of course, almost entirely matters that affect only high-income people -- are so tax-favored. Beyond the cynical explanations, the textbook justifications for the realization requirement are: (1) It is often difficult to put a value on property, in the absence of a sale, (2) It is often difficult for a taxpayer to raise the funds necessary to pay their tax bill, without selling the property itself that gave rise to the tax liability; and sometimes that property is difficult to sell, or is indivisible, and (3) property that has gone up in value might later go down in value, making it arguably wasteful to tax people this year and then give them refunds next year.

All of which are very plausible explanations, depending on the facts on the ground. Which is why Macomber's facts are so useful, even though the case is almost a century old. There, the taxpayer was holding shares of Standard Oil of California stock, which were traded on the New York Stock Exchange. The total value of the shares was $800,000, which is in the $10-$20 million range in today's dollars (depending on how one chooses to account for inflation and economic changes).

This makes the taxpayer in that case, Myrtle Macomber, the anti-poster child for realization. It is easy to determine the value of the shares, even if she never sells them, because they are traded on one of the most transparent markets in the world. If her tax bill were to force her to sell some of the property to raise cash, she could easily sell a fraction of her shares. Finally, if her remaining shares go down in value, then she could take a deduction for the losses in subsequent years.

All of which makes Macomber still fun to teach. Even so, it has always seemed odd to then say, "But, the realization doctrine still applies to people like Macomber, apparently because other kinds of property transactions justify the realization doctrine. Macomber and people like her essentially get a tax break, because we refuse to notice that their property transactions do not match up with the policy justifications of the realization doctrine."

Until now. Last month, someone finally declared that the emperor was naked. A tax lawyer named David S. Miller, writing in The New York Times, proposed a "Zuckerberg Tax," which would be called the "Myrtle Macomber Tax," if tax nerds ruled the world. Miller's op-ed precisely tracked the mismatch between the justifications of the realization doctrine and holders of big chunks of widely-traded stock, like Myrtle Macomber and Mark Zuckerberg (and Warren Buffett, and so on).

While much is being made of Zuckerberg's wealth, due to the first-time sale of FaceBook shares to the public, the op-ed points out that Zuckerberg is completely in charge of his tax fate. He apparently plans to sell $5 billion of his stock in the company, which will result in tax liability of roughly $2 billion. He will pay the taxes from the proceeds of the stock sale, leaving him a paltry $3 billion in after-tax cash. Lest we think that Mr. Z is being taxed at "Buffett Tax" rates or above, the op-ed reminds us that Zuckerberg has another $23 billion in shares on which he will pay zero tax. He has been accumulating this wealth for the past decade or so, paying no tax in any year. That he will pay any tax at all is his choice.

Moreover, anyone who dies with unrealized gains on their property can pass the property to his heirs, income-tax free. If Zuckerberg's heirs were to receive his $23 billion in FaceBook stock, they could sell those shares the next day under rules that would allow them to say that they had received no income from the deal. This is, among other things, one of the poorly understood justifications for the estate tax. The realization doctrine thus allows income from property to be shielded from income tax for decades, at which point the estate tax is the only thing that keeps the gains from being entirely exempt from taxation.

There is, in the current political environment, no traction for the Zuckerberg/Macomber tax. For that matter, there is no traction for anything that would collect more tax revenue. Even so, Miller's proposal reminds us that we have, for the last century, been giving a pass to a group of taxpayers who never should have been able to take advantage of the realization doctrine. If equity means anything in tax law, this is an area that is ripe for fundamental change.

What Is Wrong With Incomplete Tax Policy Analysis?

-- Posted by Neil H. Buchanan

My new Verdict column discusses some recent positive changes in the public debate about taxes. I have always been struck by the weakness of the empirical evidence regarding the supposed harms and dangers of taxes, yet even the more liberal big-name economists have always been rather passive on the issue. It is not surprising, I suppose, when Paul Krugman gets on the case; but I was pleased to see that Christina Romer and Uwe Reinhardt are also now beginning to push back against some of the conventional wisdom. They are both reliably center-liberal, of course, but at least we are finally seeing some fight from the mainstream non-conservative economists on taxes.

In part, my column is a continuation of my Verdict column last month, in which I discussed how unsurprising it is that economists are largely incapable of contributing usefully to the public debate. In today's column, I recount an incident from a few years ago, in which a highly prominent tax economist told me bluntly that he simply refused to believe the overwhelming weight of the evidence about the estate tax -- evidence that generally shows no effect of estate taxes on behavior. The economist's response -- essentially, "It does not fit my theory, so the evidence cannot be believed" -- captures the acquired mindset of far too many mainstream economists.

Although it is good to see more voices -- highly respected voices -- coming out of the shadows to talk about the weak empirical case against taxes, it is the "taxes are presumptively bad" mindset that always drives the narrative. As I discuss in the column, that mindset fails to confront the most basic question that should be front and center in all policy debates: Compared to what? In light of the "baseline problem" that I think trumps everything else in this debate (see, most recently, here), it is simply amazing how many economists are willing to limit themselves to simply trying to determine "how bad" an individual tax might be, without comparing those effects to anything other than an imaginary no-tax baseline.

For an academic field that spends so much time studying "general equilibrium effects" -- that is, the full interactions of markets, as price changes in one market (wheat) affect buyers and sellers in other markets (corn) -- the failure to compare a given tax policy to its alternatives is a major failure. That is not to say that it is impossible to find economists offering comparisons to alternatives, but only that those instances are shockingly rare. The narrow, one-tax-only analysis should be the exception (appropriate in limited circumstances), not the overwhelming rule.

A good, compared-to-the-alternatives tax analysis does occasionally show up in public debate among economists, generally in two contexts. First, one will sometimes see a statement along the lines of this: "If we do not collect $x from this tax, we will have to collect it from some other, even worse tax." This is most commonly offered as a defense of the estate tax, because the empirical evidence shows (as noted above) that the estate tax leaves behavior essentially unchanged. If we reduce or eliminate the estate tax, then we might find ourselves raising money from other, more "distortionary" taxes. (I use scare quotes to highlight how the usual language among tax economists is so rhetorically loaded.)

The second context, related to the first, relates to budget deficits. If we do not collect $x of revenue from Tax Type I, and we refuse to collect $x of revenue from Tax Types II, III, and so on, then we should try to determine the consequences of increasing the deficit. The CBO often provides an analysis along these lines. As I point out at the end of today's column, however, there is yet another alternative: not to spend $x at all, which means that the analysis is incomplete unless it includes a comparison between raising $x from Tax Type I and not spending $x on Spending Type I.

One can reasonably object that this is analytically difficult. And it is. It is especially difficult because it requires making a reasonable guess about how Congress will respond to the loss of revenue from reducing (or failing to increase) a given type of tax. That difficulty, however, is no excuse for acting as if one-sided analyses are meaningful. "We can't raise Tax Type I, because it is inefficient," is the most common general form taken by tax policy arguments from economists and like-minded analysts. It is good that Romer, et al. are now at least saying, "Yes, but the tax is not all that inefficient," but that still cedes far too much ground.

This is especially unfortunate, because so much of the policy world takes economists to be all-knowing. Among tax law scholars, economics (especially efficiency analyses, in the very traditional mode of neoclassical economics) is often the trump card that shuts down all debate. This is true across the ideological spectrum, although tax scholars in the center and on the left are very good about emphasizing equity concerns, even as they generally concede the efficiency argument. (It is also true among legal scholars outside of tax law, where economists are far too often treated as if they have access to unique truths that the mathematically unsophisticated cannot understand.)

Among tax scholars who are not economists, evidence-free presumptions permeate policy discussions, based on standard neoclassical economic reasoning that too often goes unchallenged. One will hear or read statements like, "We all know that taxes are inefficient," and the souped-up version, "It is established by economists that the inefficiency of a tax goes up by the square of the tax rate." This is all based on an acceptance of theory, not an assessment of evidence. (The latter statement, indeed, is supposed to substitute for evidence, because it purports to show that any level of badness just gets worse and worse as tax rates rise.) And it replicates the error of not offering a comparison to any meaningful alternative.

My current crusade about the failures of economists, therefore, is based on the impact that they have on public policy, not only directly (through the interventions of economists themselves), but indirectly through the agenda-setting and creation of shared presumptions for which economists are uniquely responsible. Once those presumptions become widely accepted, policy becomes skewed in predictable ways. For some economists, this is very much on purpose. For others, however, I suspect that it is simply a matter of doing things as they have always been done.

If economists cannot change these basic shortcomings in their approach to analyzing policy (tax and otherwise), other analysts should at least be willing to stop taking standard-issue economic analyses so seriously.

Miranda Custody and the Cost of Dishonesty

Posted by Sherry F. Colb

In my column for Justia's Verdict this week, part 1 in a 2-part series, I take up the recently decided Supreme Court case of Howes v. Fields.  In Fields, the Court held that a suspect could be incarcerated in jail but nonetheless be characterized as free of custody for purposes of Miranda v. Arizona. such that police could interrogate him for hours without first giving him warnings.  In the two parts of the column, I suggest that Fields represents a major departure from earlier case law and from the underlying objectives of Miranda.  In this post, I would like to focus on a phenomenon exemplified by Fields but not unique to the area of custodial interrogation:  the use of words to obscure rather than expose the truth.

The word at issue in Fields is "custody."  Colloquially, "custody" can mean anything from being under arrest to living with one's father after one's parents divorce.  In the Fifth Amendment/Miranda area, however, the word "custody" has always been narrower than its colloquial usage.  It has meant a substantial loss of freedom that diminishes an individual's ability to exercise her rights in the absence of support.  A suspect placed under arrest is in custody and accordingly in need of something -- like the famous Miranda warnings -- to remind him of his rights, to clarify the consequences of failing to invoke those rights, to reassure the indigent suspect that his poverty will not deprive him of those rights, and to guarantee that no suspect will be penalized for asserting them.

In Fields, the Supreme Court -- continuing a project that it started in Maryland v. Shatzer, as discussed (by yours truly) here -- decided that a person could be in jail or prison and nonetheless remain free from "custody," under Miranda.  The Court could have taken a different tack but reached the same result.  It might have ruled, for example, that suspects in custody are no longer entitled to warnings, thus overruling Miranda  itself.  Why might the Court instead maintain that suspects in custody are entitled to the warnings prior to interrogation, but define defining "custody" as excluding the circumstances of Randall Fields, a man serving a jail sentence?  And why do I have a problem with the Court's choice, apart from the substantive result itself?

My answer to both questions is the same.  I cannot know the motives of the Justices, but one reason that a court might want to maintain the Miranda precedent while contorting the definition of "custody" to exclude incarcerated inmates, is to have its cake and eat it too.  Such a court might enjoy the good will generated by the fact that we have on the books a set of rights enjoyed by every suspect placed in custody, a mark of civilization, progress, and respect for individual autonomy.  And such a court can simultaneously enjoy the fruits of custodial interrogation in the absence of warnings -- confessions that will help ensure convictions.

As the Court asserts, "[c]onfessions voluntarily made by prisoners in other situations should not be suppressed. Voluntary confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.”

Furthermore, and maybe most importantly, the Court -- by deciding the case in the way that it did -- can perpetuate the fiction that people who live in American prisons are experiencing a tolerable existence.  Most of us do not see prisoners in their incarcerated setting, after all, so the Supreme Court can reassure us about the life "inside" by saying, as it did in Shatzer that "[i]nmates in these facilities generally can visit the library each week, have regular exercise and recreation periods, can participate in basic adult education and occupational training, are able to send and receive mail, and are allowed to receive visitors twice a week." (internal citations omitted).  Notably, the Court in Shatzer was able to claim of prison life that "[t]he 'inherently compelling pressures' of custodial interrogation ended when [Shatzer] returned to his normal life."  To suggest that day-to-day existence inside a prison is in any way a "normal life" is to offer a comforting lie.  And this is exactly what I find disturbing about the Court's approach.

The Court, in similar fashion, years ago defined "voluntariness" in the criminal procedure context as a word that must itself take need into account:  "'voluntariness' has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws." (internal citation omitted).  Though we might expect need to play a role in legal analysis of whether an investigation method is acceptable, it is somewhat surprising to have it included in the very definition of the word "voluntary."  If we need it very much, would that mean that torturing a suspect for information or for consent to a search can produce a "voluntary" statement or consent?  By allowing need to infiltrate the definition of voluntariness, we are able to coerce people when we need to do so, without even having to acknowledge what is going on, that in this country, we may now use violence to extract confessions or consent from a suspect's lips.

And one other common and important misuse of language occurs outside the criminal procedure area altogether:  it is in our use of the word "necessary" in discussions of animal cruelty.  Almost everyone, including people who produce and consume the products of animal agriculture, would agree with the statement that it is morally objectionable to inflict "unnecessary" suffering on animals.  Yet the word "unnecessary" means something far narrower in this area than it would in honest moral discourse.

As Rutgers Professor Gary Francione has argued persuasively in numerous books and blog posts, "unnecessary" violence against animals, in common parlance, has been defined as "unnecessary to producing the particular product that I produce or consume."  That is, "necessary" infliction of suffering includes such routine farming practices as branding a cow's skin with a burning iron, pulling  a baby pig's teeth out of his mouth and cutting off his tail and testicles, all without anasthesia.  It includes slaughtering billions of young animals and separating mothers from their children and slaughtering the children within months of their birth -- a routine part of what dairy means.  And it is true that one cannot produce the nearly-200 pounds of meat, poultry, and fish, and the more-than-600 pounds of dairy that the average American consumes in one year, let alone the enormous quantities of eggs and wool and leather, without inflicting unimaginable suffering on sentient, innocent animals.  If people choose to consume such products, then most of the animal suffering inflicted is "necessary" to the enterprise of satisfying consumer demand.

Like "custody," however, "necessity" means something, and we rely on the real meaning of the word to identify when to engage our conscience and when to turn it off.  For example, if parents have a sick child who needs medicine injected in his arm, the pain accompanying the injection is "necessary" pain, and it is pointless to wring our hands about it.  On the other hand, if parents have a healthy child whose genitals they wish to remove for firmly-held cultural or aesthetic reasons, we understand the accompanying mutilation as "unnecessary" suffering that amounts to child abuse.

In conducting an analysis of "necessity," we ordinarily consider not only the fit between means and ends but the significance and worth of the specific ends themselves.  In constitutional analysis, for instance, strict scrutiny requires that a measure be necessary to a "compelling" interest, not simply necessary to whatever interest one can articulate.

Some would respond that they agree with me about custody and voluntariness, because they are liberals on questions of criminal procedure, but that they disagree with me about the consumption of animal products.  People, after all, need to eat and clothe themselves, so the interest in eating and wearing animal products is an elevated one, they might argue.  I would ask them to consider the following faulty syllogism, taken from Love and Death:  "All men are mortal; Socrates is a man; therefore, all men are Socrates."  Notice how closely this resembles the syllogism on which the above necessity argument about animal-based food is premised:  "Humans need food; animal products (including the flesh and secretions of slaughtered animals) are food; therefore, humans need animal products."  The conclusion simply does not follow.

I hope that in discussing topics of great importance, we can try to use language in an honest fashion, even if it makes us uncomfortable.  Doing otherwise allows us to continue to do what we have always done, but at a cost -- to us, to those against whom we act, and to the truth itself.  People in prison or jail are in custody, coerced statements and consents that we really need are still not voluntary, and the consumption of animal products is not necessary.

Advanced Capitalism Without Attitude: A Few Passing Thoughts Upon a Return to the United States

-- Posted by Neil H. Buchanan

Having now returned from my speaking tour/working vacation in Hong Kong, Australia, and New Zealand, I have been thinking about issues large and small that confronted me during my travels. One set of thoughts concerned matters of national culture that are probably impossible to measure, but that are nonetheless palpable to an outsider visiting a country.

(Warning: In this post, I will heedlessly engage in broad statements along the lines of "Americans think ..., while Aussies are ... ." I understand the perils of such broad-brush statements, and I offer them with the acknowledgement that no such statements should be read as assertions of universal truth. I am merely trying to summarize in reasonably concise form a few things that I thought I saw over the last month.)

I will say nothing here about Hong Kong, which is fascinating in its own right. Instead, I will comment on a few aspects of what I saw in Australia and New Zealand, concerning the senses of national pride and modesty that I saw in those countries, especially in contrast to the United States.

For context, I should note that I grew up in Toledo, Ohio. Before the term "flyover country" became a favored put-down for that part of the United States, Toledo was one of those places that simply had no "attitude" at all about itself. Although most people there liked it just fine, and rightly felt that there was much to feel good about in the Midwest, there was no bravado. If anything, there was anti-bravado. We all knew that people did not move to Toledo with excitement, and many teenagers dreamed of moving to New York City.

In other words, Toledo is like virtually every place in the U.S. that is not a truly major city. It is big enough to have its own TV stations and daily newspaper (which continues to win Pultizers), but it is still -- both in fact and, more importantly, in its deep psyche -- a minor league city. (The famous Toledo Mud Hens, after all, are the ultimate minor-league baseball team. See? Even the things about which an ex-Toledoan gets excited boil down to being excellently not-quite-important.)

One result of this local DNA-level modesty was, naturally, a celebration of locals who made it big. I can still name the local high school stars who made it in the NBA and NFL, the politicians who took leadership positions in Congress, and the big-time TV and movie stars who grew up in Toledo. Local news outlets would, therefore, focus on Toledoans who were even mildly associated with national and international events. The attitude, however, was quite clear: We are excited, because one of our own is showing that Toledo is not necessarily as small-time as everyone knows it is. Of course, that very defensiveness confirmed what we feared.

(Contrast this with the local media in Boston, where I went to graduate school. There, the local news focused on Boston and Bostonians, especially when they were on a national or international stage, in a fierce attempt to prove that Boston truly was "the hub of the universe." This arrogant localism was even worse at Harvard, where The Crimson once famously ran the headline: "Pope Shot. Harvard, World Shocked.")

During my very brief time in Australia (both last year and this year) and New Zealand (this year), I could not help but perceive a sense of Toledo-ish modesty in the attitudes of Aussies and Kiwis about their places in the world. They come by this honestly, of course, both because they are geographically remote from both Europe and North America, and because they were once parts of an empire that all but specialized in instilling inferiority complexes in its subjects. Upon achieving independence, the natural response of the former colonists is both to hate and to seek the approval of those who looked down on them. We still see this in the U.S. -- captured, among a million examples, in the 1980's comedy "A Fish Called Wanda" -- and it is easy to see in Australia and New Zealand (and Canada, for that matter) even more intensely.

I suppose that I found this surprising on my travels because both Australia and New Zealand are prosperous, sovereign countries. They have both succeeded to a significant extent in creating relative racial harmony in modern economies that are in every way advanced. Yet one could not fail to notice the Toledo-ism of stories about Nicole Kidman on local news stations in Sydney, or the excited story in the largest newspaper in New Zealand about a Kiwi fashion designer who had won a competition to design a dress for Princess Grace's daughter-in-law. (The designer went to great lengths to point out that -- even though she was based in Australia -- she wanted to be known as a "New Zealand designer.")

In Auckland (population 1.5 million, which is roughly one-third of the population of the whole of New Zealand), people who grew up there joked about the landmark tower (the Sky Tower) that dominates the city's skyline. They viewed the tower as a sad attempt by local politicians to spend local money on something to make their city seem more important than it was/is. That the result so completely dominates the skyline, and is really rather unsightly, only enhanced their sense of grim bemusement.

Even though one can find such modest attitudes throughout the U.S. (except in New York, Texas, and parts of California), of course, the major difference is that Toledoans (and their brethren in New Jersey, Maryland, Wisconsin, San Diego, and everywhere else) still have a "USA! USA!!" attitude about their place in the world. They think that we have the best health system in the world (as fellow Buckeye John Boehner has asserted repeatedly), even though we clearly do not. They think that everything we do militarily is justified and per se moral. In short, they buy into American exceptionalism at every level.

I am not saying that Aussies and Kiwis would be incapable of being arrogant, if the circumstances were different. (I am not, however, ruling that out.) I do find it refreshing, however, to see people who have so much to be proud of, acting modestly and being understated. (Yes, I have seen soccer, Australian Rules football, and rugby crowds. I am talking about a different kind of understatement.) Maybe it is not possible for the world's only superpower not to drip with attitude, but it is definitely refreshing to observe restrained national pride.

Why Does the Defendant's Motive Matter When the Prosecutor's Doesn't? Some Thoughts Based on the Dharun Ravi Verdict

By Mike Dorf


An important sticking point in the Dharun Ravi prosecution was the question of whether Ravi's actions invading Tyler Clementi's privacy were motivated by anti-gay bias.  I didn't closely follow the trial evidence but I did read the New Yorker story on Ravi a couple of months ago that gave some reason to doubt that Ravi is homophobic.  A friend of Ravi's said that Ravi is a "dick" who is "so much of a jerk that it may seem like he’s a homophobe but he’s not.”  Apparently, the jury didn't buy the jerk-but-not-a-homophobe defense (although an alternate juror apparently did).


Meanwhile, the Ravi case has led to renewed interest in an issue that has generated substantial controversy from time to time: Should the law punish hate-crimes more severely than otherwise comparable crimes motivated by more mundane impulses than illicit bias, such as revenge, anger or avarice?  In Wisconsin v. Mitchell the Supreme Court unanimously upheld a hate-crime statute against a free speech challenge on the ground that  laws routinely differentiate motives in assessing culpability.  The Court credited the State's argument that "bias motivated crimes" may be deemed worse than otherwise equivalent crimes because the former "are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest."  Some hate-crime critics remain unpersuaded but as a practical matter the debate about the legitimacy of hate-crime legislation is over.


Still, even if one thinks that hate-crime prosecutions are legitimate in general, there is at least the appearance of a double-standard in the Ravi case.  Some critics of the prosecution and verdict have complained that, although  Ravi was not in any way charged with causing Clementi's death, the prosecution was motivated by the fact that Clementi died.  Had Ravi engaged in the same behavior but Clementi had not been driven to suicide, the critics claim, Ravi probably wouldn't have been charged with any crime at all, much less had the book thrown at him.  Yet the state's motivation appears to be legally irrelevant.  Even if it could be shown that the government selected Ravi for prosecution because of Clementi's ensuing suicide, that would not invalidate the prosecution.  And so we have an asymmetry: Ravi's homophobic motive in invading Clementi's privacy makes Ravi more guilty, but the government's motive of "avenging" Clementi's death as the reason for bringing the prosecution does not matter.


How do I know the prosecution's motive doesn't matter?  Because in United States v. Armstrong, the Supreme Court said that ordinary equal protection standards apply to selective prosecution claims.  Selectively prosecuting based on a suspect classification like race is presumptively impermissible, although the Court in Armstrong made clear that it will be difficult to prove such a selective prosecution claim.  But in any event, where, as in the Ravi case, the alleged criterion used to trigger prosecution is not a suspect classification, mere rational basis scrutiny applies.  Is there a rational basis for the government to treat otherwise similar conduct differently because a death occurred in one case but not in the other (even if the defendant is not charged with causing the death)?  Sure.  The sound exercise of prosecutorial discretion will commonly target more harmful conduct rather than less harmful conduct, even though the perpetrators may be morally indistinguishable.


Put differently, we might understand a selective prosecution claim by Ravi as failing for the same sort of reason that one could not bring a selective prosecution objection to being charged with manslaughter rather than mere battery because one's victim happened to die.  The law constantly treats people who commit equally culpable acts unequally because one had the bad luck to cause more harm than the other.  If A drives 60 mph in a 45 mph zone, A may get a speeding ticket.  If B drives 60 mph in a 45 mph zone and, because he is speeding, B is unable to avoid killing a child who runs into the road, B may be charged with negligent homicide, which carries a much more substantial penalty than speeding does.


It's true that in the foregoing hypothetical, B is actually charged with causing the child's death, rather than--as supposedly happened in the Ravi case--charged with some other serious offense that he did commit but otherwise wouldn't have been charged for, because of the resulting death.  But that's hardly a morally salient distinction.


In the end, then, there is no real unfairness in saying that the prosecution's motive doesn't matter but Ravi's motive does.  Ravi's motive mattered because of the harms associated with hate crimes.  The prosecution's supposed motive does not matter because it's legitimate for the state to treat crimes that happen to cause more harm more seriously than crimes that happen to cause less harm.

Optical Illusions and Political Decisions

-- Posted by Neil H. Buchanan

"It would just look bad." Everyone, I think, has either uttered that sentence, or heard someone else say it, at some point in their lives. The idea is that the underlying merits of whatever is at issue might cut in one direction, but there is something about the "optics" that counsel making an otherwise-wrong choice.

This was brought to mind during the conference in Hong Kong that I attended a few weeks ago. One of the scholars at the conference, who teaches at an Italian university, had served on a task force for the European Union, which had been created to offer expert advice on tax treaty issues between EU countries and Hong Kong (and thus, ultimately, China). The task force had completed its duties the previous year. The professor noted, however, that he had not visited Hong Kong during the time that he was on the task force. He said that he had suggested that the members of the task force might benefit by actually visiting the country that they were trying to understand, but that this idea was quickly squashed, with a Continental version of: "It would just look bad."

Notably, the professor then added that his subsequent academic trip to Hong Kong actually had taught him something important about Hong Kong and its tax system -- something that might have been relevant to his work on the EU's task force. While I cannot say how big a loss it was to the ultimate report not to have included that insight, it was very clear to me that the professor was not engaging in (even light-hearted) grousing. There was really something valuable that had been lost, because the EU did not want it to look as if it was sending a bunch of tax experts on a junket to Hong Kong, at the expense of EU taxpayers.

The phenomenon of "bad optics" is everywhere in politics, of course. Entire job categories exist for consultants to deal with the optical elements of clothing choices, automobile ownership, etc. Appearances in a quite literal sense -- Dukakis wearing an over-sized military helmet, Kerry wind-surfing, the Dean Scream -- have driven political outcomes in profound ways.

The question of appearances, however, infects policy choices (as opposed to electoral posturing) as well. Four unrelated examples:

(1) "Midnight Basketball" -- During the earliest days of the Clinton Administration, the new President's staff proposed to fund community programs that were designed to deal with the then-pressing problem of (crack-fueled) youth violence in inner cities. One promising idea was to fund (for a tiny amount of money) the creation of youth basketball leagues, which would be run after nightfall in high-crime areas. The idea, of course, was to give at-risk adolescents something to do with their time, after the sun went down. Left with nothing else to do, it seemed, they were much more likely to break the law.

Even so, this plan was immediately attacked (by, if I recall correctly, the -- shall we say -- memorable former Senator Jesse Helms of North Carolina) as an example of ridiculous government spending. "Money for thugs to play midnight basketball?!?!?!?" The optics killed the idea. And then we went back to decrying the increase in youth crime (with some geniuses blaming it on a new class of "super-predators," in a particularly low moment of public policy discussion).

Indeed, the Midnight Basketball fiasco is merely one example from the broader category of government spending programs that fiscal conservatives have successfully attacked over the years, on completely non-merits-based grounds. Both Professor Dorf (here) and I (here) have recalled the bad old days of Senator William Proxmire's "Golden Fleece Awards," in which the Wisconsin Democrat would excoriate some government spending program or another for being wasteful, when in many cases he was merely attacking something that looked bad, merits be damned.

(2) Notwithstanding my views about the economic or constitutional aspects of the debt ceiling debacle of 2011 (among many links, see, e.g., here), one aspect of the Obama approach -- known to policy wonks as "prioritization" -- completely fails the optics test. Prioritization was the strategy by which the Administration planned to guarantee that the U.S. would not "default on its debts." In this case, that phrase meant "fail to make timely interest and principal payments on pre-existing U.S. debt securities." Professor Dorf and I argue (in our forthcoming article) that this is, at best, a cramped reading of the term "debt," but never mind. The Obama plan was to use incoming tax revenues to pay in full all interest and principal due to bondholders, with any shortfall in revenues resulting in a failure to pay other ongoing obligations of the federal government.

Admittedly, one can see the argument in favor of such a policy. If we are going to have to stiff someone, then the last people we might want to annoy are our creditors. Among other things, failing to pay in full on our debts runs the risk of increasing our future borrowing costs. I argued at the time that our debtors would not be so blind as to fail to see that the U.S. government was failing to pay its obligations in full, which meant that -- although our creditors would be pleased not to have been harmed in the immediate crisis -- they would surely take note of the fact that the government was, indeed, screwing over people with valid legal claims against the government.

That is one sort of optics, I suppose. The more direct optical problem of the Obama approach, however, is its blatant anti-populism. In my recent speeches about the U.S. debt situation, I described the proposed Obama approach as saying to the American people: "The only people who will be protected are foreigners and rich guys." That is, the holders of U.S. debt securities include foreign creditors (though not as significantly as people think) and wealthy domestic investors. There are also significant sums owed to U.S. state and local governments, and to pension funds, but the appearance would be unmistakable: "Domestic discretionary spending -- like medical treatment for injured soldiers -- is not prioritized, but payments to foreigners and rich guys would be." This would be political suicide, which is yet another reason that I never understood the Obama Administration's unwillingness to fight the necessary fight over the debt ceiling.

(3) The recent home foreclosure crisis is often made worse by the psychological effects of foreclosure on the homeowners. Falling behind on one's debts is shameful and debilitating, which can cause people to engage in all kinds of self-destructive behaviors, all of which can cause people to fail to protect their interests (missing deadlines for appeals, etc.). The result is a self-reinforcing spiral of debt. In responses to this very real problem, there has been some discussion of including money to fund debt counseling for homeowners, as part of the various policy responses to the foreclosure crisis.

My immediate response to this idea was: "Great idea, but it's never gonna happen!" In a world where media stardom can be had by decrying "losers" who cannot pay their mortgages -- even in the midst of the worst economic crisis in three generations -- the idea that we would be "paying deadbeats to cry to government shrinks" is just too juicy for opportunistic politicians to ignore. Good policy, impossible to enact. (If, somehow, this good idea was included in the recent settlements with the big banks, I will be pleasantly surprised. I admit that I have not yet been able to check on the latest developments in this area.)

(4) Each year, I organize tax-related panels at the Law & Society Association's annual meetings. Law & Society is an academic organization that makes great efforts to forge connections between U.S. and non-U.S. academics. (As my recent travels have reminded me, such connections are extremely valuable.) As such, the Association's annual meetings are held as often as possible (which means, roughly, once every five or six years) in a foreign country. This year, the meetings will be held in Honolulu. Although this is in the U.S., Honolulu was selected specifically to encourage participation from Pacific Rim scholars (Aussies, Kiwis, Chinese, and so on).

The timing of the conference (June 5-8), moreover, makes it clear that this is not a "winter getaway" for frozen American professors. Even so, I had more than a few U.S.-based professors (at both private and public law schools) tell me: "There is no way that I can justify spending my law school's money on a trip to Hawai'i!!" No matter that the conference is entirely legitimate, or that its location actually enhances its academic value, the optics are just impossible for large numbers of people. It just looks bad.


I do not pretend to have a unifying theory about all this. (I can blame this in part, I suppose, on continued jet lag. I doubt, however, that I would do much better when fully rested.) Three of my four examples (as well as the motivating example, from the Italian professor) are of policies or decisions that should have gone in the opposition direction, but for the optics. The remaining example -- Obama's prioritization plan -- is one in which the optics would actually move the decision in a better direction, because the defensible idea behind Obama's plan was based on too narrow a view of the policy environment.

So, even though I suspect that policy choices more often than not are deformed by concern over appearances, I know that it can cut in both directions. We do know, however, that there are many regrettable instances in which the inability to move past the optics causes us to make very poor decisions.

Let Them Eat Pie

By Mike Dorf


To raise money to support those Cornell Law students participating in the spring break service trip, yesterday I competed in the 2nd annual Cornell Law Faculty Pie-Eating contest.  The video below cuts off before the weighing of the uneaten pie portions, but as you can read on the Twitter feed, I won!  Let me just say for the record, eating nearly two pounds of pumpkin pie in just over three minutes is harder than I would have thought. But mostly, I just wanted to take this opportunity to boast about my most ridiculous accomplishment ever.



(If you're getting this blog post by email and don't have embedded video, you can find the video here.)

Obama Doesn't Want Higher Gas Prices; More's the Pity

By Mike Dorf


Campaigning in Mississippi and Alabama, Newt Gingrich recently promised gasoline prices of $2.50/gallon, while all of the Republican candidates have criticized President Obama for supposedly adopting environmental policies that make it difficult for oil and gas companies to increase production.  Indeed, some Republicans have claimed that the Obama Administration actually wants higher gas prices as a means of limiting demand.  As the Washington Post noted yesterday, that claim is mostly untrue.  Indeed, the story to which I've just linked shows that the Administration has hardly been an environmentalist's dream.  What emerges pretty clearly--and has been evident in American politics for quite some time--is that virtually no politician will deliberately pursue a policy of higher energy prices.

There is, of course, a short-term policy rationale for that reluctance.  During our current, rather fragile, economic recovery, high energy prices will cut into other consumer spending and raise costs for business,  which will harm the economy.  Thus, one could make a decent case that for the short term at least, government should not take any measures that would exacerbate energy price inflation.

But what about the long term?  Wouldn't higher fossil fuel costs be good for the United States because they would lead to decreased dependence on foreign oil and reduced greenhouse gas emissions (as well as decreases in other pollution)?

It's still not hard to understand why most Americans would oppose, say, an additional $2/gallon tax on gasoline, if the government were simply going to keep the revenue.  But most plans for a Pigovian tax on fossil fuels involve rebating the extra revenue back to consumers (and businesses) through the tax code or otherwise, so that the typical American would not see a net tax increase.  People who drive a lot or otherwise use a lot of fuel--and who don't have the option of shifting their consumption patterns--would likely oppose such plans because they end up cross-subsidizing individuals and businesses with greater energy demand elasticity, but such high-volume energy users are undoubtedly a minority and some of them could probably be accommodated with special subsidies.

Thus, we are left with a puzzle: A lot of Americans -- a substantial majority, to judge by the timidity of politicians on this issue -- would oppose a gas tax, even if it didn't cost them anything but ended up producing net social benefits.  Why?  I don't have definitive answers but I'll float a few hypotheses.

1) Anti-tax sentiment is so strong in the U.S. that even a tax that nets out even is seen as evil;

2) Some people don't really believe that the government would rebate the proceeds of the tax, so they think that they would end up paying more;

3) Some people dislike Pigovian taxes precisely because such taxes aim to shape their behavior, regarding such regulatory taxes as improperly constraining their liberty.  They smack of "social engineering."

I'm sure there are additional explanations, but it is striking to me that each of the foregoing reasons rests on an economic libertarian view of the world.  And that would probably explain somewhere between a third to a half of Americans.  But the more than half of the rest of the country are not economic libertarians, or at least not across-the-board economic libertarians.  So, are there other explanations?  Or is the U.S. simply a much more economic libertarian country than I have been assuming?

Should the Actual Facts of Supreme Court Cases Matter?

By Mike Dorf


In a recent essay in the New Yorker, Dahlia Lithwick reviews a new book by Dale Carpenter that tells the story behind Lawrence v. Texas.  As Lithwick and (in much more detail) Carpenter explain, the Supreme Court's decision of the case was based on a false picture of the facts: John Geddes Lawrence and Tyron Garner did not have a longstanding deep personal relationship, nor were they even engaged in sex when they were apprehended by the Houston police.  In order to help bring a test case, they agreed not to contest the police version of the facts (alleging that they were caught in flagrante delicto) and the movement lawyers in turn concealed the somewhat tawdry nature of their non-relationship relationship so as to keep before the Justices a sanitized, middle-class image of same-sex relationships.


As reported by Lithwick, the story sounds fascinating and I look forward to reading Carpenter's book.  But as a constitutional lawyer, I'm tempted to say: Well, so what?  This is hardly the first time that the Supreme Court based an important decision on a sketchy version of the facts.  Consider Wickard v. Fiburn, the New Deal-era Commerce Clause case that will likely play an important role in the Supreme Court's consideration of the minimum coverage provision of the Affordable Care Act.  Here is how Justice Jackson described the excess wheat grown by farmer Filburn: 

[It has been Filburn's] practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption, and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

Subsequent cases and some academic commentary have tended to characterize Filburn's excess production as the equivalent of hobby farming.  Yet as Jim Chen points out in his chapter of my book, Constitutional Law Stories, that's impossible.  Filburn was accused of harvesting 239 excess bushels of wheat beyond his quota.  Chen writes: "To consume 239 excess bushels, the Filburn family would have had to consume nearly forty‑four one‑pound loaves of bread each day for a year."


But does it matter for the law that Filburn was not the hermit that the Court and commentators have sometimes imagined him to be?  I don't think it should.  The Supreme Court decides cases to establish general principles of law.  Insofar as the facts in a particular case bear on the contours of those principles, the key facts are the facts as perceived by the Court, rather than the facts as they may have actually been.  Judicial truthiness, not the real truth, matters to the law.


To be sure, there is rhetorical political value in revealing that the underlying facts in some test case were not as the Court assumed.  That is why the pro-life movement has made such a big deal out of the apparent conversion of Norma McCorvey--the Jane Roe of Roe v. Wade--from pro-choice symbol to pro-life activist.  With the pro-life movement's recent claim that abortion leads to regret, McCorvey is a powerful symbol--even though there may not be good reason to think that her own feelings of regret are typical.  Lucinda Finley's chapter on Roe in Constitutional Law Stories shows how McCorvey herself was never an ideal plaintiff and thus offers reasons to be careful about drawing any general lessons from her experience.


I don't mean to say that we should ignore the real stories behind the stylized statements of fact one reads in judicial opinions.  Quite the contrary.  I edited Constitutional Law Stories precisely because I think that the back story is extremely important in making sense of how the law develops.  But the back story is never just the story of the particular petitioners and respondents who happen to appear in the caption of the case the Supreme Court hears.  The complete back story features a range of such protagonists as well as social activists, lawyers (many of whom are also activists), and the public. The story of the particular protagonists in a case matters most when it tells us something about the broader social context.

Do we learn anything from the back story of Lawrence?  Sure.  And Lithwick gestures in the direction of the story's broader significance, but I would put a finer point on it than she does.  Lithwick notes how the LGBTQ movement that brought the Lawrence case wanted to present a middle-class "sameness" narrative.  In this view, gays and lesbians are just like straights, except for the sex of the people they love.  Because Lawrence and Garner didn't fit that narrative, their real story was suppressed.

De-emphasizing inconvenient facts could be described as simply what good lawyers do.  What makes the suppression of the real attributes of Lawrence and Garner so poignant in the Lawrence case is that it might serve as a metaphor for the price of progress for the LGBTQ movement.  To gain legal and social acceptance of the legitimacy of same-sex relationships, LGBTQ Americans have had to portray their lives as largely indistinguishable from the lives of straight Americans: Ozzie and Harriet with better clothes, or in a Subaru Forester.  And that's fine for LGBTQ Americans who want to live conventional lives.

But not that long ago, the LGBTQ movement was split on the question of whether to fight for the right to full participation in the institutions that the hetero world had created or instead to fight for the right to redefine sexuality and human relationships more broadly.  Romer and Lawrence and the direction of energy towards securing marriage equality represent the triumph of the former view.   The suppression of the real identities of Lawrence and Garner -- their closeting, if you will -- thus could be said to reproduce within the movement the very dynamic against which the second view was struggling in the wider world.  For that reason, the story that Carpenter has to tell is not simply an interesting but idiosyncratic tale of two people whose case happened to end up before the Supreme Court.  It is potentially a microcosmic version of the story of the movement itself.