Thursday, October 31, 2013

Did the Obama People Ever Think Seriously About the Debt Ceiling?

-- Posted by Neil H. Buchanan

In the two weeks since the government shutdown ended, the two big political stories have been the technical problems of the new health care website and the revelations that the United States has been spying on its allies.  While neither of these stories is news as a matter of kind (new software is always glitchy, and governments have always spied on their enemies and friends alike), their relatively extreme degrees have made them political headaches for the Obama administration.

A meta-narrative is now emerging in Washington that purports to pull those two stories together.  In a front-page news analysis article in yesterday's New York Times, political reporter Peter Baker describes a gossip-fed line of thought in which the President is completely disengaged from his own presidency.  Even allowing for the fact that no President can really know even a fraction of what his administration is doing in his name, Baker says ominously that, for both of the two issues du jour, Obama's "explanation roughly boils down to this: I didn’t know."

I frankly find this type of political analysis tiresome and meaningless.  Lacking any clear thoughts on a substantive matter, even the laziest reporter can always find people in government who will put on the airs of the wizened insider, criticizing the President for doing too much of one thing or another.  Or maybe it is too little of all of those things.  President Jimmy Carter was famously criticized for being too hands-on, for example.

Baker then goes meta-meta by noting that his story is an old one (even acknowledging the old criticism of Carter), but then goes on to try to breathe life into an old narrative and ask, essentially, whether this time is different.  His conclusion: Not really.  He ends the story by quoting a former staffer in the Reagan White House, who said that "the typical pattern" for any President's staff "is to try to insulate the president from responsibility for bad news."  Apparently, "same as it ever was" counts as front-page news, where the mere accusation of Presidential disengagement is enough to feed the story -- especially because almost nobody will actually open the paper and read to the anticlimactic end.

The better question, I suppose, is whether this (or any) President is actively engaged in decision-making by his Administration.  The two current issues at the center of Baker's innuendo-laden story are not about active decision-making, but about awareness of the development of matters that might become political problems.  In the title of this blog post, I ask the pointed question of whether the Obama team -- not just the President, but all of his relevant advisers -- has ever really thought carefully about the debt ceiling.  The answer to that question is not a matter of "Presidential disengagement," or something like that, but rather the quality and breadth of the analysis that precedes policy decisions by the head of the Executive branch.

In a trivial sense, of course, the answer to the question in today's title has to be "yes."  Even putting emphasis on the word "seriously" does not change that trivial certainty, because we can be sure that the Obama people thought long and hard about how to respond to the debt ceiling craziness that the Republicans have perfected over the last 34 months or so.  The Obama people must certainly have thought carefully about their stare-down strategy in the February 2013 and October 2013 crises, after having been burned so badly in the Summer 2011 crisis.

Moreover, the White House has twice gone out of its way to rule out strategies that were gaining currency in public discussions.  The Press Secretary explicitly ruled out both the 14th Amendment-based argument, as well as (thankfully) the use of platinum coins, either of which might have been used to defuse the Republicans' hostage-taking strategy.  As I have pointed out repeatedly, however, the White House never directly ruled out any other argument, relying instead on catch-all rhetorical framing, for example: "There are no magic bullets here."

But the White House has never explained why it rejected the 14th Amendment argument, or the minting of platinum coins, or any of the other arguments that they dismiss as little more than mystical projectiles.  What other arguments did they consider?  Who considered and rejected those arguments?

Professor Laurence Tribe is known to be the President's trusted former constitutional law professor, and Professor Tribe has been openly disdainful of all arguments about the debt ceiling.  He has, for example, dismissed Professor Dorf and me as "otherwise sensible legal scholars" whose argument "abandons the rule of law."  As insulting and absurd as those comments are, his views certainly appear to have held sway in the White House.

But Buchanan and Dorf are hardly the only people who have noted the problem of the "trilemma."  Professor Dorf coined that word, but the unique contribution of our analysis is about the President's options after he is faced with a trilemma.  The nowhere-to-turn problem has been noted more broadly.  How, then, has this President concluded that the only -- the ONLY -- thing he can do if faced with a trilemma is to default on the nation's legal obligations?

Do the Obama people think that there really is no trilemma, which is the essence of Tribe's risible claim that the spending laws implicitly include waivers when we hit the debt ceiling?  Do they actually think that Tribe's claim can be taken seriously (and even if it can, that it solves the problem)?  Or do they disagree with us about how to choose among three bad options?

I am not the only person who wants to know.  Citizens for Responsibility and Ethics in Washington (CREW) has filed requests under the Freedom of Information Act for any legal opinions and/or memoranda from Treasury, the Office of Legal Counsel (OLC), and the Department of Justice regarding the debt ceiling.

Unfortunately, the request uses inaccurate phrasing, requesting memos that discuss "the authority of the President to raise the debt ceiling," which is absolutely NOT what the President would do, under our analysis or any other of which I am aware.  Our major concern, after all, is the separation of powers, which means that the President would not legislate a new debt ceiling, but rather that he would issue sufficient debt to obey Congress's orders regarding spending, given available tax revenue.  That is not "raising the debt ceiling," but simply refusing to enforce it because it is constitutionally deficient.

Even though OLC has announced that it will respond on an expedited schedule, therefore, they could rely on the technicality that the request implicates nothing that the President's advisers have considered, because no one has ever considered having the President unilaterally "raise the debt ceiling."  If the Administration does not use that tactic, however, what can they do?

There are no good outcomes here.  The White House can claim that they were simply unaware of any arguments other than the two that they explicitly ruled out.  (Even then, it would be interesting to see how they ruled out the 14th Amendment argument.)  They can claim that they considered and rejected Buchanan-Dorf, but given that there has been no substantive engagement with our argument from any scholars or legal analysts, what would those memos say?  It is not as if there is a body of work on which the White House could have drawn.  No one has even tried to challenge our criteria for choosing among bad options, nor has even one scholar attempted to say that we have applied our criteria incorrectly to the facts at hand.

The worst possibility, of course, would be that there was no serious engagement even from White House lawyers with the possible arguments that would have supported a Presidential claim that the debt ceiling is unconstitutional and thus a dead letter.  I have long suspected that the Obama political team simply said, "We can't sell that story, so let's go with a stare-down and win the politics."  The FOIA request, however, puts them in the uncomfortable position of having to put up or shut up.  Either they produce memos that will be legally deficient, or they will admit that they never took the legal questions seriously at all.  I predict a third option (of a different trilemma): They will say that the memos exist, but that such sensitive analyses (on a topic that might come up again) cannot be released.  They really have no other option.

Wednesday, October 30, 2013

The Real Lessons of the Dewey & LeBoeuf Collapse

By Mike Dorf

A few weeks ago, the New Yorker ran an article by James Stewart describing the collapse of the Dewey & Leboeuf law firm.  (The article begins here but the rest of it is behind a pay wall.)  The timing of the story is a bit odd, coming well over a year after D&L filed for bankruptcy, but the substance is in some ways even odder. Much of it focuses on the connections of the family of a former D&L lawyer/manager to the mafia, even though there is no evidence whatsoever that he himself had ever been involved in any mob activity.  Nor is there a suggestion in the article that any of the family connections had anything to do with the firm's collapse.

So what led to the firm's demise?  Stewart correctly points to the use of debt to guarantee large annual pay for star lawyers, many of them lured to D&L or to the pre-merger firm of LeBoeuf, Lamb, Greene & MacRae through the promise of such packages.  When the firm's earnings were insufficient to meet its obligations to the high-earning partners and others, it went under.

Stated that way, the story sounds very much like any of a number of garden-variety personal and business insolvencies.  Overly optimistic about prospects, a firm or family takes on too much debt, and then when events take a turn for the worse (a global financial crisis causes a recession or the family breadwinner gets laid off from what had seemed a secure job), there is insufficient revenue to meet obligations.  Nothing special here, right?

Well, maybe.  In the New Yorker article, Stewart also points to a different phenomenon.  He notes that whereas most of the top NY firms had traditionally compensated their lawyers according to a "lockstep" formula, LeBoeuf and the post-merger D&L used an "eat what you kill" approach, and that the latter undermined the sense of shared mission and firm loyalty at the post-merger firm.

I agree with the general proposition that, other things being equal, lockstep compensation is better for an institution than so-called performance-based pay.  Lockstep systems encourage esprit de corps and teamwork, while discouraging people from regarding their co-workers jealously or focusing overly on money rather than the job itself.  But performance-based pay works better in contexts in which a culture of complacency has arisen and even apart from that, may be unavoidable in a market in which there is intense competition for top performers.

Moreover, there are examples of enterprises functioning cohesively despite wide pay disparities.  Consider the two-time defending NBA champion Miami Heat.  Their three star players--Lebron James, Dwyane Wade and Chris Bosh--each earn about $19 million in annual salary, while most of the role players earn less than a fifth of that.  Yet there is every reason to think that the role players are fully committed to the enterprise.  Indeed, were it not for Ray Allen's buzzer-beating three-pointer in game 6 of the NBA Finals earlier this year, the Heat would not be league champions.  Does Allen resent the fact that James, Wade and Bosh earn much more than he does?  Perhaps a little bit, but Allen is still paid extremely well by the standards of regular people and winning a championship is itself a kind of compensation.

One may be able to say the same thing about law firms.  For many years, I worked as an occasional consultant for Dewey Ballantine, getting paid at an hourly rate.  For a year after the merger, I was "Special Counsel" to D&L, working with the same group of first-rate litigators from Dewey, now sometimes supplemented by excellent lawyers who had come from LeBoeuf.  (None of the lawyers with whom I worked directly is mentioned in the New Yorker article.)  I was paid well and the work was always interesting, sometimes fascinating.  I had no idea how much money the full-time lawyers were earning and whether I was "underpaid" relative to them.  Perhaps that reflects my own preferences, but it seemed true of the full-time lawyers with whom I worked as well, not all of whom were rainmakers.  Before the post-recession post-merger firm began firing associates and partners, the performance-based compensation did not appear to undermine morale.  Again, other things being equal, I think that lockstep compensation systems are generally superior to performance-based compensation, but performance-based compensation can work too.

The real story here, therefore, is much less about lockstep versus performance-based compensation than it is about the shortsightedness of guaranteeing multimillion dollar payouts to partners, even when revenue falls off.  That approach was "performance based" in the sense that it rewarded stars based on past performance, but any sensible compensation formula ought to take account of revenues. If we were to search for a sports analogy, the bloated contracts of Alex Rodriguez or Albert Pujols seem much closer  to the D&L guarantees than do the Miami Heat contracts.  Indeed, the Yankees overpaying ARod and the Angels overpaying Pujols are less egregious than what LeBoeuf and then D&L did in borrowing money to guarantee the payouts to star lawyers.  Having to carry the salary of ARod or Pujols undermines the on-field success of the Yankees or the Angles because it ties up money that could be spent on cheaper players who are not past their prime. But at least it doesn't bankrupt the team.

Tuesday, October 29, 2013

Voting Rights Act Debate

By Mike Dorf

I've scheduled this post to go live just as I'm beginning my Federalist Society-sponsored debate with Hans von Spakovsky on the Supreme Court's decision last Term in Shelby County v. Holder and the Voting Rights Act (VRA) more generally.  Mr. von Spakovsky is best known for his contention that in-person voter impersonation is a serious problem justifying voter ID laws.  That contention has been challenged by, among others, UC Irvine Law Professor Rick Hasen (in this post at Talking Points Memo) and Jane Mayer of The New Yorker (in both this article and a follow-up in response to a rejoinder by von Spakovsky).  Hasen and Mayer acknowledge that people sometimes try to steal elections but argue that von Spakovsky has produced very little evidence of in-person voter impersonation.  I hope that our debate will focus on issues besides voter ID laws, about which I plan to make two main points:

(1) In-person voter impersonation is an inefficient means of stealing an election, and so we would expect that people intent on stealing elections would chiefly rely on other means, such as stuffing the ballot box or falsifying results.  Accordingly, the burden of persuasion should rest with those, like von Spakovsky, who claim that there is a substantial amount of in-person voter impersonation.

(2) Even if one thinks that there is substantial in-person voter impersonation, that is not a reason to think that Section 4 (or any other part) of the VRA is unconstitutional.  If a state or other covered jurisdiction can show that voter ID requirements or other changes in its election laws do not have the purpose or "effect of denying or abridging the right to vote on account of race or color," then those voter ID requirements can be sustained in a preclearance proceeding under Sections 4 and 5 of the VRA (or at least they could prior to the Shelby County ruling).  And in fact, prior to Shelby County, the Department of Justice did not block all voter ID laws, only the most restrictive ones.

From there, I'll pivot to make three main points in criticism of the Supreme Court's ruling in Shelby County.

(1) The Supreme Court's approach in Shelby County rests on the assumption that the pre-clearance requirement is extraordinary because states have primary authority for regulating elections.  But with respect to congressional elections, Article I, Sec. 4 authorizes Congress to "make or alter" regulations of elections, notwithstanding state law.  It's true that the original Constitution provides no authority for Congress to make or alter state election law with respect to state offices, but Section 2 of the Fifteenth Amendment undoubtedly does--as the substantive right against race-based disenfranchisement protected by Section 1 applies in state as well as federal elections.  So the baseline should be that Congress does have power to make rules for how states conduct their elections, so long as Congress has reason to think that doing so is necessary and proper to protect the right to vote against race-based restrictions.

The question then is whether the requirement of pre-clearance is an appropriate means by which Congress can exercise its 15A.2 power.  (In a technical sense, there isn't even a pre-clearance requirement, as covered jurisdictions could opt instead to go directly to the DC District Court for a declaratory judgment. Pre-clearance is an additional option for covered jurisdictions.  Nonetheless, I understand the federalism objection to be an objection to the requirement of any federal supervision, judicial or executive, so I'll treat the judicial route as equivalent to the executive route.)

In his majority opinion in Shelby County, CJ Roberts notes correctly that the 1787 Constitutional Convention rejected the proposal that Congress be given the general power to "negative" state laws.  Insofar as the VRA Section 5 pre-clearance mechanism gives to the federal government a kind of negative, he implies that it is extraordinary--and thus requires an extraordinary justification.

I think that's a rhetorically powerful but analytically weak move because, at bottom, pre-clearance is simply a less intrusive means of federal preemption than is direct preemption.  Under 15A.2, Congress could enact all manner of direct regulations of state and local level voting in order to prevent or remedy race-based disenfranchisement.  Pre-clearance is a mechanism that permits covered states and localities to exercise primary regulatory authority over elections, with the federal government only stepping in when there is a genuine threat of race-based retrogression.  And in fact, the Justice Dep't has allowed just that, pre-clearing over 99% of changes from covered jurisdictions.

But the larger point is that there's nothing extraordinary here.  As Harvard Law School Professors David Barron and Todd Rakoff argued in a recent Columbia Law Review article, other statutes (including the No Child Left Behind Act) enacted pursuant to other powers of Congress, grant the federal executive branch the power to waive what would otherwise be statutory requirements for the states.  And measured against the baseline of permissible preemption, such a power is a protection for states, not an intrusion on their sovereignty.

(2) There are two ways to understand the Supreme Court's disapproval of the VRA Sec. 4 coverage formula.  Perhaps the Court means to say that the extroardinary nature of the pre-clearance requirement warrants some form of heightened scrutiny, and thus the failure of Congress to update the coverage formula means that it fails such heightened scrutiny.  As I have just noted, however, pre-clearance, properly understood, is not extraordinary, and so this argument fails.

But it is also possible to read the majority opinion in Shelby County as imposing heightened scrutiny because of a separate, freestanding obligation of Congress to respect the "equal sovereignty of the States," a principle that the opinion repeatedly cites. In this view, Congress must enact legislation that applies uniformly throughout the country--or at least must do so absent a very good justification, and a decades-old coverage formula doesn't count as a very good justification.

Where does the obligation to legislate equally among the States come from?  It certainly does not appear anywhere in the Constitution or prior case law.  And for good reason: Local and regional circumstances differ, so Congress often has reason to apply different rules of law to different places.  For example, federal statutes set different reimbursement rates for expenses of Senators from different states (given the differing costs of transportation, etc.); federal law allocates funds to particular states for disaster relief on a piecemeal basis; federal law establishes national parks, military bases and public works projects in an ad hoc and political way that advantages some states while disadvantaging others.  Yet courts quite properly do not apply anything resembling heightened scrutiny to the hundreds of federal laws that expressly treat different states differently.

(3) Nor is there any general requirement that Congress periodically update its laws--whether they contain coverage formulas like Section 4 or are out of date in some other way.  Would it be a good idea?  Maybe. Thomas Jefferson thought that all laws should expire every twenty years and Congress sometimes includes sunset provisions in various laws (including the VRA).  But that too is generally considered a matter for legislative judgment.  Many laws have been on the books unaltered for much longer than the coverage formula of the VRA.

Moreover, as Justice Ginsburg noted pithily in dissent, it is hardly clear that the coverage formula is outdated because preclearance itself prevented the covered jurisdictions from adopting racially retrogressive measures.  She wrote: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

In seeming vindication of her observation, in the wake of Shelby County, two covered jurisdictions--Texas and North Carolina--showed that while the deluge of race-based disenfranchsiement that first occasioned the enactment of the VRA may have slowed, it is still raining.  Texas announced that it would enforce a restrictive voter ID law and North Carolina enacted a new such law (which also includes other retrogressive measures).  Perhaps the Justice Department will succeed in blocking these and other racially retrogressive laws under Sections 2 and 3 of the VRA, but it shouldn't have to.  The whole premise of the VRA Sections 4 and 5 mechanism is that after-the-fact enforcement actions are much less effective than a pre-clearance requirement.

And even if Sections 2 and 3 were an adequate substitute for Sections 4 and 5, so what?  That doesn't make Sections 4 and 5 unconstitutional.  To extend Justice Ginsburg's metaphor, the existence of raincoats hardly demonstrates the uselessness of umbrellas.

Monday, October 28, 2013

Piling on in Defense of Law Reviews

By Mike Dorf

In response to Adam Liptak's recent NY Times article decrying the supposed uselessness of most legal scholarship, various legal academics have taken to the blogs to offer critiques of Liptak's critique. Some of the most thoughtful such replies are by Will Baude and Orin Kerr on Volokh.com, Jack Chin on Prawfsblawg, and Frank Pasquale on Balkinization.

To be sure, it's hardly surprising that legal academics would defend the status quo that credentialed us, but the point of the rejoinders is not that the status quo is perfect.  The point is that the critique Liptak presents considers only the defects and none of the strengths of the existing system.  I don't have much to add to the rejoinders linked above by way of general response to the Liptak article, but I do want to add three observations arising partly out of personal experience to underscore points made by my fellow academics.

1) Audience.  For many years now, judges have complained that law reviews publish esoterica that does not help them decide concrete cases.  Liptak quotes relatively recent statements by CJ John Roberts and CA2 Judge Dennis Jacobs, but the point was made as early as 1992 by DC Cir Judge Harry Edwards in (ironically) a law review article published in the Michigan Law Review.  I think the criticism is wrong even on its own terms; that is, there continues to be a great deal of doctrinal scholarship--especially if one counts student Notes.  Indeed, in my own experience advising students on Note topics, I have found that the journals place great emphasis on relevance to courts.  It is conventional wisdom that a student improves her chances of having her Note accepted for publication if she addresses a circuit split, i.e., if she writes about precisely the sort of issue that the Supreme Court is likely to consider.

But even putting aside student Notes, and even conceding that a substantial fraction of legal scholarship by full-time academics fails to provide guidance on doctrinal questions, it hardly follows that such scholarship is useless to lawyers.  As others have observed, Liptak equates utility to lawyers with utility to courts, while litigated cases that produce written opinions by elite judges are merely the tip of an iceberg.  Legal scholarship may be useless to judges and litigators but valuable for legislators, executive officials or private actors.  Pasquale cites the influence of an article by Saule Omarova (currently a visiting Professor at Cornell) in leading to a dramatic change in the regulation of bank holding companies--influence that will not likely register with judges at all.

My own experience is also instructive.  My work has been cited in five Supreme Court cases, about 60 lower federal court cases and about 60 state court cases.  I am happy to have had even that relatively modest influence, but citation counts are an extraordinarily crude measure of influence.  For example, H.L.A. Hart's book The Concept of Law must rank as one of the most important books on law in the 20th century.  Yet it has been cited by the Supreme Court just twice.  The Supreme Court has never cited a single work by Joseph Raz.  It is no understatement to say that Hart and Raz set out two of the three leading approaches to law (soft positivism and hard positivism) that have an indirect impact on just about everything lawyers, including judges, do.  The architect of the third leading approach--Ronald Dworkin--does somewhat better in the courts, but only because, in addition to writing about general jurisprudence, he wrote about constitutional law.

Meanwhile, even for an individual scholar whose work does get cited by courts with some regularity, such citations do not closely correspond to the work's relative relevance to the legal community.  No court has ever cited my 1998 article on democratic experimentalism, co-authored with my former colleague Chuck Sabel, even though that is one of my most widely cited articles by academics and, I am told, has been influential (for good and ill) in public policy debates about regulation.  Likewise, the articles that Professor Buchanan and I wrote on the debt ceiling "trilemma" garnered considerable attention from the press and from some members of Congress during the recent standoff, but to date only one of these articles has been cited by a court, and the citation was for a proposition that had nothing to do with the core thesis.  This is not surprising, of course, because we expressly characterized our argument as addressed to the executive and legislative branches, rather than the judiciary.

I don't think I'm unusual among academics.  Scholars who write about private law--for example, arguing about how contracts are or should be structured--may lead private actors to avoid litigation entirely if they do their job especially well.  If so, then their influence will be completely invisible if influence is measured only by judicial citations.

2) Depth.  The Liptak article contrasts the ostensibly useless law review articles with the "timely accounts" that appear on "the many excellent law blogs."  Justice Kennedy recently made a similar point about the utility of law blogs.  I'm delighted that Justice Kennedy and his current law clerks read blog posts by his former clerks (and others), of course, and I agree that blog posts about law are a great way to make arguments in a timely way.  I wouldn't blog about cases if I thought otherwise.  However, there are certain purposes for which a blog post simply isn't sufficient.

The debt ceiling discussion is a good example.  Both Professor Buchanan and I expressed frustration with the shallowness of the arguments put forward by our chief academic interlocutors in the debate over the proper course for the President to follow in the event of a congressional failure to raise the debt ceiling.  They would state unsupported conclusions like "Buchanan and Dorf are unconvincing" or they would raise ostensible objections that we had in fact considered in depth, like "those bonds would need a large interest premium."  To repeat a point we have already made repeatedly: We don't think our argument can't be criticized, but to meet the argument set forth in detail in a law review article should require a sustained argument in response.  Op-eds and blog posts usually won't cut it.  Certainly sound bites offered to reporters won't either.  Sustained arguments that consider counter-arguments in depth require their own forum.  The forum we legal academics have for this purpose consists of the law journals.  They're not perfect, and blogs can do some important things that law journals can't, but blogs can't do everything that journals can do either.

3) Cite Checking.  As others have noted, the core of the critique summarized by Liptak is at war with itself.  On the one hand, he complains about the lack of expertise of law student editors.  On the other hand, he complains about the esoterica that law students publish and its supposed disconnection from the concerns of bench and bar.  But remedying the students' ignorance by moving to faculty-edited journals would likely exacerbate the disconnect, because students are, on average, more interested in the sorts of questions that courts and practicing lawyers find important than full-time academics are.

Putting that point aside, I want to challenge a point that is generally taken for granted in these discussions: that student editors are inferior to faculty editors.  For what it's worth, I think that faculty input at the selection stage--which is already sought and received by many of the student-edited journals--is useful.  To my mind, there are competing strengths and weaknesses of faculty editing and student editing.

One often-overlooked advantage of student editing is staff size.  Faculty-edited journals in law and other fields generally do not cite-check the work they publish because faculty editors themselves simply don't have the time to do it, and they lack the budget to hire students or other assistants to do it.  But the student-edited law journals typically have 2Ls "pay their dues" by cite-checking.  As an author, the result can be annoying--as when these student-editors justify their existence by adding unnecessary parenthetical descriptions to sources cited in one's footnotes.  However, the result can also be very useful, as when the student-editors notice that a faculty author has inadvertently cited the wrong page of a source or misquoted what appears there.  Student editors can also catch less innocent errors.

Thus, I'll close with an anecdote.  Over a decade ago, I was on a panel on the Second Amendment. The panel included historians and law professors.  One of the historians made the point that much of the scholarly literature arguing for reading the Second Amendment as protecting an individual right of armed self-defense should be regarded skeptically because it was published in law reviews rather than in peer-reviewed history journals.  Another historian on the panel nodded enthusiastically in agreement. That other historian was Michael Bellisles, who had then just recently published a widely-acclaimed book, Arming America, in which he argued that colonial-era Americans possessed many fewer firearms than previously assumed.  Not long thereafter, critics revealed that Bellisles had faked some of the important data cited in his book--and previously published in peer-reviewed history journals.  He was stripped of his prizes and resigned his faculty position.  Had Bellisles sought to publish his work in a law review, the student editors themselves might well have found him out, because they, unlike the faculty editors of the history journals, would have asked to see the sources for each of his footnotes.

Sunday, October 27, 2013

Annette K. Dorf

By Mike Dorf

Tomorrow I will resume blogging on more or less my regular schedule.  When I announced that I was taking a break for personal reasons, a number of friends and readers expressed concern.  The absence was occasioned by the death of my mother, Annette K. Dorf.  At her funeral I read a eulogy that my sister and I wrote together, which contained various personal remembrances.  Here I thought it appropriate to say something somewhat less personal but still more expansive than the official obituary.

Born an only child during the Great Depression, my mother's own father, Louis Kaplan, died when she was a young adolescent. She was raised by my remarkable grandmother, Sadye Kaplan, who owned a toy store and was later a bookkeeper. Grandma and mom were quite devoted to one another, and much of my grandmother’s spirit lived on in my mother.

As an adult, mom was passionate about learning and teaching. After a year at Brooklyn College, she transferred to Brandeis University, then in its very early years but already an intellectual hotbed. She earned her BA from Brandeis (where she was retroactively elected to Phi Beta Kappa fifty years later, when Brandeis started a chapter), and then received her Masters in history from Columbia, writing her thesis on the New York slave conspiracy of 1741.


She married my father, Stanley Dorf, and worked for most of her adult life as a high school teacher of history and other subjects in the New York City public schools, meanwhile lovingly raising me and my older sister, Laura Dorf Queller, in the house on Long Island where our father still resides. Up until the end, mom doted on her five grandchildren, read voraciously and frequently attended lectures, operas and concerts.  She was en route to one such concert when she collapsed.  Today would have been her 80th birthday.

Friday, October 25, 2013

Create Moronic Chaos!

-- Posted by Neil H. Buchanan

Earlier this week, I noted some hilariously misguided statements posted on a comments board responding to an article in The Chronicle of Higher Education.  That article had quoted me, in support of my prediction that upcoming federal budget talks would result in yet more damaging cuts to funding for higher education, saying this: "Other than football teams, universities are not popular with tea-party-type voters."

As I noted in Tuesday's post, this assertion seems not just obvious but uncontroversial.  Movement conservatives, even before many of them united under the banner of the Tea Party movement, had been going after higher education for years, with a combination of anti-intellectualism and attacks on the academy as a haven for lefties.  This is hardly something about which conservatives have been coy.

Just to add one more example to the quick list that I included in my post on Tuesday, one might recall that during the 2012 Presidential primary season, President Obama was quoted at one point saying that it should be a goal of American public policy to see that every child gets a college education.  He offered the statement as an aspiration, not a policy proposal.  One might imagine any of a number of plausible arguments in response to that goal, and we might even have ultimately concluded that the aspiration is not literally achievable.  That might have been a fair discussion.

That, however, is not how the Tea Party's favorite candidate responded.  The leading arch-conservative Presidential candidate at that time was former Senator Rick Santorum.  Speaking to a Tea Party group in Michigan, Santorum reportedly went out of his way to quote the President's comments and to respond as follows: "What a snob!"  He raised the specter of "some liberal college professor trying to indoctrinate" people, and he said that Obama wants people to go to college so he can "remake you in his image."

It is all rather bizarre, then, to make an obviously true statement and see the level of vitriol that I saw on the comments board for the Chronicle article.  But my larger point in Tuesday's post was not about the vitriol itself, but that the comments were so humorously confused.  The commenters, in trying to defend themselves against an imagined attack on their intelligence, proceeded to demonstrate their incapacity to think clearly.

I then offered an alternative explanation for the broader phenomenon of embarrassing conservative rants on internet comments boards.  (See the comments board for almost any political book on Amazon.com, just as one of a multitude of online mosh pits.)  I linked to a comment by Paul Krugman, who had linked to a report that Fox News had spent years ordering its employees to set up dummy, untraceable accounts so that they could act as "sock puppets," posting pro-Fox rants on any comment board where anything had been written about Fox (even non-critical comments).  Krugman's surmise was that there was/is an affirmative strategy on the right to get not-necessarily-stupid people to flood the internet with stupid comments supporting right-wing claims.

In an email, Professor Dorf asked me a follow-up question: Why would it be sensible for any political organization (and Fox News is nothing if not a political organization) to convince the world that its adherents are stupid?  What is to be gained from paying employees to make bad arguments, rather than good ones?

The answer, I think, can be analogized to an interlude in the history of Professor Dorf's favorite basketball team, the New York Knickerbockers.  In the late 1980's, the Knicks were coached briefly by Rick Pitino (now the coach at the University of Louisville).  Before playing the Celtics one night, Pitino specifically said that "his team's only chance to beat what was obviously a better team was to create chaos."

This brings me back to an argument that I have made in a number of different contexts, which is that the conservative movement thrives when it undermines the rule of law, and especially when it undermines the institutions that can serve as counterbalances against the exercise of raw power that the wealthy and their right-populist supporters could otherwise exercise.

For example, after last year's Supreme Court decision upholding the Affordable Care Act, I questioned whether movement conservatives should have been grudgingly happy with Chief Justice Roberts, despite his vote upholding the ACA under the taxing power, because his vote had preserved some shred of credibility of the Court as a nonpartisan institution.  Although some very good commentators had made that claim, my suggestion was that conservatives would actually want to undermine the Court's legitimacy still further, because the courts can be a countervailing force that restrains the powerful from getting their way.

Similarly, many others have pointed out that conservatives have an incentive to make the government run badly, even when they are in charge.  The most recent version of this, of course, is not just to underfund and undermine federal agencies (and then complain when they make mistakes), but to make all of Congress look bad, even when it is only the Tea Partiers in the House who are really being crazy.  The press and public tend to draw the conclusion that "they're all nuts."

So, even though I can understand why it is counter-intuitive to engage in a specific strategy that is based on having people say and do stupid things, the strategy seems to be to degrade the conversation always and everywhere.  One does not need good arguments to shut down what might otherwise be a productive conversation.  One need only make it impossible to have a conversation at all.

Thursday, October 24, 2013

Government Default, Risk-Taking, and Knowing What You're Getting Into

-- Posted by Neil H. Buchanan

In my Verdict column today, I suggest a way that President Obama could act now to defuse future debt ceiling crises.  Yes, it obviously involves invoking the Buchanan-Dorf trilemma analysis, but the question is how the President could act on our argument.  I recently concluded that "most of the debt ceiling debate is obviously about framing the issues," so I have been thinking about the supposedly "practical" objection to the notion of issuing debt in excess of the debt ceiling.

To get to that point, however, I spend the bulk of today's column arguing that President Obama's stare-down strategy for dealing with the Republicans in the last two iterations of the debt ceiling standoff has not permanently scared the Tea Partiers away from future standoffs.  Some people claim that the specter of the mid-term elections in November of next year will stop the Republicans from using the February 7 return of the debt ceiling to try to extract concessions from the President.

I am willing to believe that they will not shut the government down again, but there is every reason to believe that they view the debt ceiling issue as a political necessity.  As one report recently put it: "Surrounded by a hostile White House and Senate, and with few legislative avenues beyond borrowing and spending bills to impose their agenda, Republicans said capitulating to Obama would cede to Democrats the only institutional authority Republicans possess."  They are delusional enough to think that putting the President in a trilemma is not only completely acceptable, but that negotiating over borrowing and spending bills is insufficient "institutional authority" to get their way.

If I am wrong about that, then the debt ceiling will be forever dormant, returning to its former status as an occasional annoyance that allows member of Congress to make unctuous speeches about fiscal rectitude.  If I am right, however, then sometime soon (probably in only a few months) we will be back where we were barely a week ago, trying to figure out what the President can do.

My argument in today's column expands on a point that I have made in a few places recently, which is that the stare-down strategy requires nerve-wracking photo finishes, whereas the best strategy would be to get in front of this issue months in advance.  How, then, could a President announce months in advance that he is putting in place plans to issue debt in excess of the debt ceiling (which Professor Dorf and I have referred to as Presidential Bonds), if it comes to that?  My answer: By framing it as a matter of personal choice, and the morality of making people pay for consequences that they could not have reasonably anticipated.

Essentially, the argument relies on a comparison of who might get hurt under different strategies, and assessing who should bear the risks and burdens of a possible default on federal obligations.  I argue that potential victims of default -- people with checks coming from Social Security, businesses who are to be paid for work performed under government contracts, holders of Treasury securities expecting scheduled interest payments, and so on -- would be forced by a default to become involuntary creditors of the federal government, waiting to be paid while hoping that the impasse is resolved quickly.

By contrast, who would potentially be hurt by issuing debt in excess of the statutory ceiling?  When commentators (and President Obama himself, as I point out in the column) argue that nobody would be willing to buy that debt, my response to date has been, in essence, "Rational investors buy junk bonds, don't they?"  My argument today extends that point, to say that this is a matter of people deciding in advance whether they want to engage in a contract with the federal government, knowing that the contract is of uncertain enforceability.

This is, in other words, a question of just deserts.  Those who might be the victims of default were told in advance that they would be paid in full, on time, and they had two hundred years of history backing up their belief that they could rely on that legal commitment by the United States.  If they were to suffer, it would be through no fault of their own, because a default would occur when it would be too late for them to defend themselves.  People who would buy risky bonds, by contrast, would know that they might lose that lottery, and they could bid on the debt accordingly.

One trivial response to this argument might be that there are no guarantees in life, and so people who rely on the federal government should not start crying if they do not receive payment.  Even if one were to credit that reductio ad absurdum argument, of course, it misses the comparative point: the likelihood, ex ante, that the federal government will default is much lower than the argument, ex ante, that the Presidential Bonds will not be honored.

And even if one argues that the "new normal" since the Tea Party ate the Republicans' brains should have put potential victims on notice that there might be a default (at least, for those whose obligations arose after early 2011), that still does not respond to the reality that the potential buyers of Presidential Bonds would be better positioned to be aware of the risks involved.  Moreover, potential buyers are exactly the people who buy and sell risky assets for a living.

The notion of "knowing what you're getting into," of course, comes up all the time in life, and therefore in the law.  The doctrine of reliance interests in contract law, for example, requires comparing relative degrees of reasonableness when people claim that the actions of other parties have harmed them.

On last night's "The Daily Show with Jon Stewart," they ran a segment showing the Wall Street cheerleaders on the TV business channels expressing outrage at the idea that JPMorganChase will be paying a $13 billion fine, a chunk of it for the wrongdoings of Bear Stearns and Washington Mutual, two companies whose misdeeds occurred before they were bought (at fire-sale prices) by JPMorgan.

Stewart rightly mocked the talking heads, who were actually trying to argue that JPMorgan should not be punished for the wrongdoing of others.  The larger point (and, of course, Stewart's staff had damning video clips from the relevant time period) is that JPMorgan knew in advance that the law clearly requires buyers of such firms to assume the liabilities that might arise from the companies' prior actions.  Indeed, this is such a bedrock concept in American law that it is laughable that the pro-Wall Street hacks on CNBC and Fox Business would even try to suggest that it was somehow morally shocking.  It turns out that JPMorgan, like any organization with an even mildly competent legal staff, set aside funds to deal with the potential losses for which the firm might ultimately be found liable.  This is easy stuff.

Another area in which people misunderstand this is when they complain about institutional liability for college sports programs.  Whenever a university is hit with sanctions for past misbehavior by coaches, alums, boosters, or some other miscreant, the cry is almost always heard that (especially if the coach or player has since left the school) it is wrong to hold the institution responsible.  Beyond the goal of setting appropriate incentives for institutions to control their employees, this argument is absurd simply as a matter of considering who is taking risks, and with what kind of prior knowledge.

The most sympathetic version of the argument is that "the kids there right now didn't do anything wrong, so why are you taking something away from innocent victims?"  The fact, however, is that everyone knows that big-time programs can be hit with these types of sanctions, such that this is a known risk of joining any such program.  When, as in this week's sanctions against the University of Miami, the punishment follows a multi-year investigation, that risk was even more obviously both knowable and known.

Moreover, saying that "these kids didn't do anything wrong, so it's wrong to make them suffer with the institution," ignores the flip side: "These kids didn't have anything to do with turning the institution into the global brand that it is today."  When a high school senior excitedly signs up with Notre Dame, or USC, or Oklahoma, they are signing up to enjoy the perks that come with being part of an institution that provides things they cannot get elsewhere.

Admittedly, this example is far afield (no pun intended) from the debt ceiling and Presidential Bonds.  The broad point is that there are plenty of situations in life in which people have to assess the possibility of things going wrong, before entering into situations that entail making sacrifices in return for promises of future benefits.  There are close cases, and there are easy cases.

It should be easy for a properly motivated President to make the case, based on morality, that defaulting on federal obligations falls well outside the acceptable range of "making people pay for what they should have known they were getting into"  -- especially when there is an alternative group of people who could be brought into the situation with full knowledge of the risks that they would be facing.

This President shows no sign of being motivated to do so, but that merely means that he is willing to risk another default crisis, because he is too timid to take even the risk of saying: "Given the choice between stiffing people who would be blindsided, or possibly stiffing people who volunteered to take the risk, my decision is easy."

Wednesday, October 23, 2013

Anonymous Tips, Risks, and Type 1 Errors

by Sherry F. Colb

In my column on Verdict today, part 2 of a 2-part series of columns, I continue my analysis of the U.S. Supreme Court case of Navarette v. California.  This is a case in which the Court will decide whether anonymous tips provide a sufficient basis for stopping an allegedly reckless driver, absent corroboration of criminality.

In this post, I want to discuss Chief Justice Roberts's view of this issue and the competing risks of Type 1 and Type 2 errors.  The reason we know Chief Justice Roberts's view is that he dissented from the Court's decision four years ago to decline to grant review of a similar case, in Virginia v. Harris.  Regarding the notion of ignoring an anonymous tip about a drunk driver, the Chief Justice, joined by Justice Scalia, said the following, in his dissent from the Court's denial of certiorari:
"The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers 'one free swerve' before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check."
It is difficult not to feel the force of the Chief Justice's argument.  An anonymous tip about drunk driving gives the police the opportunity to save someone's life.   It calls the officers' attention to a potential menace on the highway, and it would understandably appear inexplicable to the family of a drunk-drivers' victim that police knew about that menace and did nothing to stop it and spare the life of a loved one.

When our existing danger-detection systems fail to identify a true danger, we call that a Type 2 error.  For example, we might have a test for breast cancer in which a doctor uses a needle to draw some cells from a breast lump and then analyzes those cells under a microscope.  Assume that the test is imperfect and that in some small proportion of cases, the cells that are drawn are normal cells, even though much of the lump is in fact malignant.  On those occasions, we would have a Type 2 error or a "miss," because our test failed to detect -- and thus failed to generate a potentially life-saving intervention in -- a cancerous process.

In such a case, Chief Justice Roberts might observe that it would be difficult for the family of the cancer patient to understand, if the patient ultimately dies of breast cancer, why doctors did not simply remove the lump.  Why look for more evidence, once doctors have found a lump in a woman's breast?  Isn't the removal of the lump substantially less harmful and destructive than a woman's death by breast cancer?

One might, of course, legitimately believe that the answer to this question is yes.  However, there is another side to the story and it is one worth examining before concluding that Type 2 errors must be avoided at all costs.

There are Type 1 errors, also known as "false hits."  Type 1 errors occur when our detection system identifies a threat when no threat in fact exists.  Take, for example, a very sensitive MRI machine, which is used to detect cancer.  It may be the case that the machine misses nothing -- that it has no Type 2 errors, in other words.  If there is any cancer, it will show up on the MRI.  On the other hand, as is often the case with systems that miss nothing, it often makes Type 1 errors (false hits), so that doctors see what may be cancer in various parts of the patient's body, but often, none of the "hits" turns out to actually be cancer.

For someone whose life is saved because a fast-growing cancer, otherwise undetectable, is found through an MRI and later removed, the worry about false hits might seem an indulgence.  That patient knows that because of the highly sensitive and reactive test he underwent, he is alive when he would otherwise be dead.

But there are likely to be other patients, perhaps many, many other patients who would feel quite differently. Those are the patients who are told that they might have breast cancer, lung cancer, or kidney cancer, for example.  Those patients are then subjected to painful biopsy procedures, each of which gives rise to a risk of infection and, in a small number of cases, a risk of death.  With enough false hits, it would plainly be inappropriate to use the MRI machine as an across-the-board diagnostic tool for cancer, despite the fact that its use might, in individual cases, save lives.  The morbidity and mortality generated by Type 1 errors can outweigh the benefits of avoiding Type 2 errors.

Could the same be said for anonymous tips?  Perhaps.  Imagine that whenever the police receive an anonymous tip indicating reckless or drunk driving, the police stop the allegedly offending vehicle, despite the absence of any corroboration (such as observed reckless driving).  Such a policy could, if there were many false anonymous tips, lead to a large number of stops of innocent drivers on the highway .

So what?,  Chief Justice Roberts might ask.  Police would pull over the driver, do a "quick check," and then allow the driver to move on, in that event.  This is not necessarily true, however.  If police believe that a driver is drunk, based on an anonymous tip, then they might ask the driver to blow into a breathalyzer.  The driver might refuse, complaining that he did not do anything wrong and does not trust breathalyzers.  What should the police do then?  If the suspect does not want to cooperate with them, they might feel compelled to arrest him.  After all, if he is in fact drunk, he could hurt someone on the highway.  An arrest, in turn, would entail additional invasions of privacy, perhaps including a strip search -- if he is brought to the general population of a jail, under Florence v. Board of Chosen Freeholders.

Traumatized by his experience, even if he is ultimately freed, this driver could develop a sense of distrust toward the police.  And with enough people experiencing this undeserved humiliation and trauma, it is easy to see how the police might become less respected, less legitimate in the eyes of the public, and thus less effective at keeping the community safe.  To the extent that police must rely on partnerships with communities to keep crime down, such a development could prove catastrophic.

Perhaps this sounds like hyperbole, and perhaps it is.  Much depends on the number of false anonymous tips (and of true anonymous tips) that police receive.  But imagine, by analogy, that patients began to distrust the medical profession, because of the many false hits that yielded painful, traumatic, and harmful investigative interventions.  This imaginary scenario is, in fact, close to reality for many patients, who have suffered the trauma of harmful, excessively invasive, and counterproductive medical interventions.  What this could mean is that patients feeling ill or experiencing disturbing symptoms might decide to avoid going to the doctor, for fear of tests, tests, and more tests that could prove more damaging than helpful.  If this happened, then the highly sensitive MRI machine and other similar tests could have the paradoxical effect of multiplying the number of Type 2 errors (misses), by driving the patient population away from doctors' offices and from the possibility of an accurate diagnosis and treatment.

With uncorroborated anonymous tips, it is very difficult to know when and how much to trust them.  Ignoring them could be extremely costly, and the costs might seem utterly unjustified and inexplicable to those who must pay those costs in the form of highway fatalities.  But we must remember, and I hope the Justices remember as well, that there are costs involved in scrupulously stopping everyone accused by an anonymous informants.  There is much room for abuse, and the consequences -- for law and order and for public safety -- could conceivably be just as disastrous as the scenario that Chief Justice Roberts envisions.  We must therefore tread carefully in this area.  The anonymous tip could prove, as promising as it might seem, to be a curse in disguise.

Tuesday, October 22, 2013

Academia, Paranoia, and Sock Puppets

-- Posted by Neil H. Buchanan

Last Wednesday, as the likelihood increased that there would soon be a political deal to postpone the debt ceiling crisis and end the shutdown (for now), I spoke with a reporter for The Chronicle of Higher Education about the crisis.  One of the things she wanted to know was what would happen to federal higher education spending (i.e., the spending that most directly affects her publication's readership) in the aftermath of the shutdown and hostage crisis.  My answer was not optimistic.

Part of the political deal last week involved an agreement that representatives from both parties would get together and try to work on a 10-year budget deal, supposedly to try to get long-term deficits under control.  Of course, given that the 10-year deficit picture looks quite under control, that is a bit odd.  But we know that Obama and many Democrats are devoted to fiscal orthodoxy, so it is hardly surprising that they would try to prove their bona fides by playing on the Republicans' turf again.

We know that Obama cannot resist attempting to make these kinds of deals.  We also know, however, that the likelihood of anything big happening is close to zero, because Republicans will never vote to increase taxes (even the supposedly "moderate" Republicans, whose moderation consists entirely of not wanting to shut the government down over the ACA, even though they continue to insist that "Obamacare" will destroy the country), and because it still appears that enough Democrats will resist Obama's attempts to give away the store on Social Security and health care spending.

I told the Chronicle's reporter, therefore, that the most likely outcome of this political stunt, which is supposed to be completed by mid-December, would be to take further hacks at the domestic discretionary budget.  That that budget has already been cut deeply in recent years, even before the sequestration cuts that are scheduled to hit harder still in 2014, will not stop our politicians from cutting further, because that is simply the most vulnerable set of spending programs.

I then pointed out that higher education, in particular, is a favorite target of right-wing politicians.  The Chronicle article ended by quoting me as follows: "They're going to find it hard to take whacks at the big programs" like Medicare and Social Security, "so they'll start looking at symbolic ways to cut away at things that are easier.  Other than football teams, universities are not popular with tea-party-type voters."

When I said those words, they struck me as utterly uncontroversial.  The far right has always been hostile and contemptuous of the academy.  Right-wing websites excitedly publish counts of how many professors are registered Democrats versus registered Republicans, pointing to the lopsided results as proof that colleges and universities have been taken over by lefties, Marxists, communists, you name it.  Sarah Palin and Anne Coulter (darlings of the Tea Party) mock Obama for his Ivy League pedigree, and dismiss academics as traitors and not Real Americans.

Heck, even the senior George Bush, a Yale man, mocked Michael Dukakis's "Harvard boutique" connections in the 1988 campaign!  A generation ago, some right-wing money men created a group called Accuracy in Academia, the purpose of which was to "monitor" colleges and universities for supposed liberal bias.  The Cheneys supported this effort over the years.  The degree of anti-higher education fervor in the Tea Party is such that Scott Brown -- the first Tea Party hero, an upset winner in the special election to replace the late Ted Kennedy in the U.S. Senate from Massachusetts -- spent his entire (losing) re-election campaign in 2012 running against Harvard Law Professor Elizabeth Warren by referring to her with a snarling "Professor" in every speech, commercial, and interview.

It is hardly, therefore, a stretch to imagine that the current Republican Party, which trades on anti-university rhetoric even in its less extreme precincts, would try to target higher education spending.  I also pointed out to the reporter that the state of North Carolina, which has seen its state government taken over by Tea Party activists, has gone after the state university system with a vengeance.  Tar Heel state Tea Partiers will still root for UNC, NC State, and so on in football and basketball, but they are doing everything they can to punish universities for being open to non-conservative thought.

I almost never read the comments boards of other publications' websites.  Dorf on Law has always been blessed with an extremely good group of commenters, so much so that Professor Dorf recently observed that "the closest thing we have seen to a sustained critique of our position [regarding the debt ceiling] has come from thoughtful questions posed by commenters on this blog," and not from other academics.  Yes, DoL has the occasional troll, and a few tendentious readers come and go over time, but our commenters have presented us with a high level of constructive critique over the years.

As anyone who has spent more than four seconds surfing the internet knows, however, our comments board is an outstanding exception to the rule.  The typical board is little more than a food fight, with people insulting each other in the most childish ways.  (Stephen Colbert recently mocked this tendency by noting a repeated comment on one board: "U R Homo!")  I would have expected, however, that The Chronicle of Higher Education would have a different tone on its comments board.

No such luck.  The first commenter wrote this: "Neil Buchanan is hawking the vicious liberal myth that Tea Party backers are uneducated buffoons. As a matter of fact, Tea Party backers tend to be better educated and wealthier than the average American. If they are suspicious of academe, it is probably because of the profusion of characters like Buchanan in universities. Contempt often breeds contempt."  Another commenter claimed that "the higher learning community is irresponsibly unworthy of its own credentials," and a third said that we should "[l]et the little Democrat slugs crawl around in their liberal filth."  I did not finish reading the comments, but I would not be surprised if one of them asserted that I R Homo.  (Or is it I M Homo?  Bigotry is so confusing!)

Of course, I did not say that Tea Party backers are uneducated buffoons.  What I said was that "universities are not popular with tea-party-type voters."  This is, as I noted above, demonstrably true.  The only thing close to a serious argument that I have ever heard along these lines is that conservatives have good reason to hate universities.  (That it is a "serious" argument, of course, does not make it true.)  The evidence is simply overwhelming that the right wing in this country is anything but supportive of the non-athletic parts of our universities.

It is tempting, I admit, to use those readers comments to demonstrate that they are simply proving the point that they purport to be rejecting.  I say that universities are not popular with Tea Partiers, so that the political system is likely to cut the budget of higher education still further.  A Tea Partier shouts back: "We're not uneducated buffoons!"  The comedy writes itself.

But maybe it is not that simple.  On his blog yesterday, Paul Krugman commented on a report that Fox News had set up an operation in the 2000's in which its employees became "sock puppets," that is, they set up false email accounts to bombard comments boards with pro-Fox News screeds.  Even when a blog post was neutral about Fox, the sock puppets would be out in force.

Krugman noted that many comments boards, certainly including his own, are littered with the silliest, most illogical attacks imaginable.  Maybe, however, the people writing those comments are not as stupid as they sound.  He concludes: "In general, if your reaction to some comments is that nobody could really be that stupid, it may be that you are just underestimating the power of stupidity — but it may also be that nobody is, in fact, that stupid, but that someone has been employed to play stupid for fun and profit."

In any event, I will repeat that I am grateful for the high level of comments on Dorf on Law.  I did not need to see how bad it is elsewhere to appreciate how good it is here, but I now treasure what we have all the more.

Thursday, October 17, 2013

A Faux Nobel for Darth Vader and Obi-Wan Kenobi?

-- Posted by Neil H. Buchanan

Another year, another opportunity to rail about the silliness of "economic science."  There is an annual ritual in Stockholm, where one or more economists are announced as the big winner of the "Nobel Prize in Economics."  The press then runs a few stories boiling the cited work down to a few sound bites, and everyone tries to figure out whether there is any political valence to the selection.  This year's version of that ritual played out earlier this week.

This year, of course, the whole thing was buried under the hysteria surrounding the U.S. government shutdown and the possible of debt ceiling-induced default.  Losing the Swedish announcement into that black news hole is just as well.  Longtime readers of Dorf on Law are familiar with my basic take on this: (1) It's not a Nobel, (2) The work is not science, and (3) See (1) and (2).

(1) I am hardly the only person who gnashes his teeth when, for example, The New York Times refers to "the Nobel Memorial Prize in Economic Science."  To repeat myself, the name of the prize is "The Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel."  The official Nobel website goes out of its way not to call the prize the "Nobel in Economics," or anything like that.  Why?  Because the creation of the prize in the late 1960's created a lot of opposition from people who said that this was not a "real Nobel."

At that point, some prominent economists (especially Paul Samuelson) secured funding from the Royal Bank of Sweden, and then figured out a way to get the Nobel people to approve an official name that included Nobel in it.  (Samuelson was soon named a recipient of the award.)  Calls over the years to abandon the prize have gone nowhere, even when the selection committee (as in 2002 and 2009) has had to choose non-economists to receive the award.  (The 2009 award was especially remarkable, with the committee breaking the men-only history of the award by having an obscure female non-economist share the award with a big-name male.)

The result has been the elevation in the public's mind of economics into something that it most definitely is not: an objective discipline in which dispassionate scientists seek the truth, through methods that other sciences would recognize as valid.  The reality is that economics is, and will remain, a field that constantly fails to live up to its own self-image, with its more hide-bound defenders forced to make weak excuses for its obvious failures.

(2) The big deal this year is that the committee selected three men to share the award who had not only not collaborated over the years, but two of whom had been sarcastically critical of each other's work.  (The third guy, Lars Peter Hansen, is a technician whose work can only be appreciated by other statisticians.)  Simultaneously awarding antagonists for this award is not, however, new: In 1974, Gunnar Myrdal and Friedrich von Hayek shared the award.  Along the lines of the title to this post, Myrdal and Hayek were extreme opposites, whose joint award was more than a little awkward.  (Myrdal was a champion of the welfare state, while Hayek viewed all of that stuff as a "road to serfdom.")

By that standard, the conflict between Robert Shiller and Eugene Fama might seem like a pillow fight.  Still, Fama managed to be completely wrong about the nature of economic markets, claiming that they are always and inexorably efficient.  Not only was he loudly, consistently wrong, but he has intensified his position even after the housing bubble led to the global financial crisis of 2008.  He claims not to even know that the word "bubble" means, and he mocks Shiller's correct predictions with condescending snark.

Obviously, I agree with Shiller's basic take on the nature of markets.  His work is the best argument available for the value of "behavioral economics," which attempts to use psychological concepts to show how people deviate from the hyper-rational behavioral that is required to make Fama's models work.  Of course, I have recently had unkind words for behavioral economics (Verdict column here, Dorf on Law post here), so I find it less than satisfying to have to take that side in this intramural brawl.  None of it is science!

The policy implications are clear, and Shiller is doing essential work.  Fama's work suggests that unregulated financial markets are good for society.  Shiller's work supports attempts to prevent markets from nearly destroying the world ... again.  This joint award is better than the 1997 prize, which went to the two surviving members of the team that brought us financial derivatives, whose hedge fund had to be bailed out the following year.

Fama's work is the kind of thing that impresses economists, because it pursues the internal logic of standard economic models to extremes, and then declares the result "the only possible answer."  That someone like Shiller can survive, much less thrive, in that professional environment is impressive and important.  It is essential to have people like him pushing back against market idolatry.

It's Two ... Two ... Two Constitutional Violations in One!

-- Posted by Neil H. Buchanan

The debt ceiling crisis has again been pushed down the road, meaning that we can now look forward to several months of talking about other things, and then spending the early part of the new year wondering why we are back at it once again.  I ended an interview on Tuesday morning on Sirius XM radio by saying, "See ya in 2014!"

People have been talking about the "Groundhog Day" feeling of this recurring fight, and with the next debt ceiling deadline now set for February 7, we know that we will almost certainly spend February 2 wondering if John Boehner will see his shadow in time to avert utter catastrophe once again.  A BBC anchor joked yesterday that this is good news for me and the publisher of my book (The Debt Ceiling Disasters), and I replied (ungrammatically), "Yes, but it would be nice to have an actual economy to spend all of my book royalties in."

In other words, although I am sure the Obama team is absolutely convinced that they did everything right, they merely delayed the inevitable fight yet again.  They have obviously handled this better in 2013 (twice) than they did in 2011, but anyone who thinks this is over is fooling himself.

One gratifying difference in this most recent go-round is that the policy talk began to confront the constitutional analysis that Professor Dorf and I have been offering, separately and as co-authors, for the last two-plus years.  Big-named economists and financial writers invoked our Columbia Law Review articles (mostly the first one, published in October 2012), and we even had some success getting people to understand that this was not a "clever work-around" for the President.  Our trilemma analysis is no longer simply being conveniently ignored.

Even so, there is more work to be done before February 7.  I continue to hope that the President can be convinced that there is a way to drive a stake through the heart of the debt ceiling statute, rather than simply playing a better political hand of poker than the Republicans do, each time the issue comes up.  Convincing him of this, I think, will require us to add to our argument that the choice of "cutting spending" in response to a trilemma -- which is to say, to default on existing legal obligations to pay money to recipients, in full and on time -- is not just one of three unconstitutional choices, but clearly the most unconstitutional choice.

We have, of course, already made that argument from a number of different angles, but today, I will offer a different path to that result.

Three weeks ago, on September 27, I wrote a post here on Dorf on Law that described the Prompt Payment Act (PPA), which applies to the payments owed to contractors who do work for the federal government.  The PPA provides that contractors who are not paid on time are owed the original amount, plus interest until they are paid.  Importantly, the Act explicitly refers to the unpaid obligations as having become "debt" of the government.  (And each month, any unpaid interest is added to the principal on that debt.)

One of the hangups in the debate over the 14th Amendment's possible role in the debt ceiling standoff involved the meaning of the word "debt."  Section 4 of that amendment does not define debt, and there has been some talk from the right to the effect that the 14th Amendment requires payment on the interest and principal of Treasury securities, and nothing else.  The first Buchanan-Dorf Columbia Law Review article, and many of my posts, showed that such a reading was either too narrow or too broad, and my September 27 DoL post was written to show that "debt" does, indeed, have a broader meaning in the statutes.

I concluded in that post that the language in the PPA strengthens the idea that "default" (which also has no official definition) must include not just nonpayment of principal and interest on Treasuries, but also nonpayment of all other obligations.  Also, I concluded that the PPA's language strengthens the 14th Amendment-based argument that the debt ceiling statute is unconstitutional.  The trilemma argument is still the strongest argument, but the COMPLETELY SEPARATE 14th Amendment argument is strengthened in light of the PPA.  (Sorry for shouting, but it has become important to remind people that the trilemma argument is not at all the same thing as the 14th Amendment argument.  People hear "constitutional argument," and immediately think about the 14th Amendment.)

Looking at the PPA, however, also helps to answer the central question of how to measure the debt that is covered by the debt ceiling itself.  Gregg Polsky, an excellent tax law professor who teaches at the University of North Carolina, reminded me yesterday that "accounts payable (for interest, services, goods, etc…) are 'debt' under the traditional definition."  The question, therefore, is whether this broader definition should be applied to the debt ceiling statute.  Because it does, as I will explain presently, the analysis changes drastically.

Remember, however, that the debt ceiling statute does not use the word "debt," but rather "obligations."  In a Dorf on Law post earlier this year, I pointed out that the debt ceiling law uses an expansive definition of debt.  The statute uses the term "obligations," and it explicitly identifies two categories: (1) traditional Treasury securities, and (2) "other" obligations of the government.  It does not define obligations in a way that excludes money owed under appropriations laws.

Now, think about what this would mean to a President who faces a trilemma.  Suppose that he chooses to default on some payments that are due to be paid on a given day, rather than paying those obligations by floating more debt than the debt ceiling statute purports to allow.  Imagine some simple numbers: $100 worth of obligations come due on the day that the debt ceiling is reached, but only $70 of tax revenue arrive that day.  Whether or not the President "prioritizes," someone who was legally entitled to receive $30 from the government on that date will not be paid.

At that point, we still owe those people (or that person) the additional $30.  We have forced them to involuntarily lend it to the government.  Unless we want to say that we have not just delayed payment on the $30 but have outright repudiated it, the government's obligations have just gone up by $30.  If this is a payment that would be covered by the PPA, it would be labeled a "debt," and if not, then it would be an "obligation."  Both are included in the total amount of debt that is limited by the debt ceiling statute.

This means that the debt limit would be exceeded, even if we default on payments due.  Or, to put it differently, a President who faces a trilemma faces an even worse set of choices than Professor Dorf and I have been describing.  We have said that the has three unconstitutional choices: (a) collect more in taxes than allowed by statute, (b) issue more debt than allowed by statute, or (c) spend less than required by statute.

In fact, the choices are: (a) collect more in taxes than allowed by statute, (b) issue more debt than allowed by statute, or (c*) spend less than required by statute, AND exceed the debt ceiling statute, anyway.  The choice to default is thus both a violation of the spending laws and a violation of the debt ceiling law.  (Formally, Congress made a violation of the debt ceiling law inevitable when it approved spending and tax laws that created obligations in excess of the debt ceiling.)

Professor Dorf and I were very careful in our articles to say that "comparing degrees of unconstitutionality" is no simple matter.  In particular, we refused to say that two constitutional violations are per se worse than one.  One cannot say for sure that x + y > z, or even that s + t + u + v + w + x + y > z.  However, I feel rather comfortable saying that x + y > x, when x and y are both positive numbers.

The only thing left for defenders of the debt ceiling statute to argue is that this is not the "spirit" of the debt ceiling.  It is obvious, one might try to argue, that an unpaid bill for $30 is not what Congress had in mind when it put a hard limit on government debt.  That, however, fails to explain why Congress affirmatively included other obligations in the statute.  And it would require us to believe that Congress thinks it is acceptable to owe money to people, so long as there is no formal loan involved.  To call that implausible and illogical is an understatement.

The Buchanan-Dorf "least unconstitutional option" approach has been unchallenged by serious scholarship, either in the constitutional criteria that we derived, or in applying those criteria to the President's three options.  Even if one somehow thinks that defaulting is less unconstitutional than exceeding the debt ceiling, however, it cannot be the case that both defaulting and exceeding the debt ceiling is the President's best choice.

That there is a debt ceiling law is both unnecessary and absurd.  That House Republicans have tried to use that law to extract ransom from the President, putting the entire world at risk, is unconscionable.  That Congress wrote that law in a way that ultimately collapses on itself is tragicomic.

Wednesday, October 16, 2013

Anonymity and Trust

By Sherry F. Colb

In my Verdict column for this week, Part 1 of a 2-part series of columns, I examine the case of Navarette v. California.  The case asks the question whether an anonymous informant's tip about a suspect, in the absence of corroboration of  illegality, can suffice as justification for a brief detention or "stop."  In Part 1, I analyze Supreme Court precedents governing the definitions of "reasonable suspicion" (the standard for a stop), "probable cause" (the standard for an arrest), and the longstanding role of informants in helping police officers meet these two standards.

In this post, I am interested in examining what I regard as a paradox of anonymity:  it can free people to expose authentic thoughts and feelings they would otherwise conceal, and it can simultaneously liberate speakers to lie with impunity.

For an example of the former, consider online support groups.  A friend of mine recently faced a potentially devastating medical diagnosis and rapidly found himself looking online for information about the diagnosis. He quickly came upon discussion groups in which people who had the diagnosis in question exchanged stories about their own experiences, what treatments they underwent, what the benefits and downsides of those treatments were, and how they feel in the present.

My friend found these stories empowering but also scary, because he did not know (1) whether he in fact was going to receive the diagnosis or (2) who in the online group most resembled him.  The one thing he did not suspect, however, was that anyone telling his or her story was lying.  He trusted their stories, in other words, even though he did not know who they were and therefore could not consult his prior experience to reassure him about their veracity, and he also could not rely on the deterrent force of the potential consequences for lying, because there almost certainly would be no such consequences, since the people in the online group were, for all intents and purposes, anonymous.  Yet their participation in their group -- and their willingness to share stories -- seemed to bolster rather than detract from their apparent credibility.

Turn now to an anonymous informant who calls the police to say "the man living at 321 Penny Lane has been sexually abusing his sons every day."  Though we would certainly want the police to do some investigation, there is a non-trivial chance that the caller is lying.  The caller might, for example, be a vindictive neighbor or someone else who wants, for whatever reason, to harm the man living at 321 Penny Lane.  Absent more information, I at least would be very reluctant to detain the accused man.  I would be much more comfortable acting on this tip, by contrast, if the accuser gave her name and address to the police and thereby rendered herself vulnerable to punishment if she invented the whole story.

What is the difference between these two scenarios, such that we might find the accounts in the first to be especially trustworthy, while finding the report in the second far less so?  Part of an answer might lie in the amount of detail.  If the anonymous informant in the second example went into much greater detail about the nature of the child abuse, then that might help her case.  But still, the worries about vindictive or otherwise malevolent false reports would remain.  Why is that?

I think the answer lies in a deep intuition we have about people engaging in self-disclosure rather than other-accusation.  If you tell me that you suffered from a particular medical condition and found that therapies A,B, and C were helpful, but therapy D was not, I will almost certainly believe you.  You are confiding information in me, even if you are doing so anonymously, and that demonstrates that you trust me (and other listeners) to receive that information, a trust that I and others feel invited to reciprocate, by believing what you say.

By contrast, if you make accusations against someone -- and do so anonymously -- then you have not in any way put yourself on the line.  There might be reasons for you to want to remain anonymous -- perhaps you are afraid of retaliation by the person against whom you are leveling an accusation.  But there is nothing inherent in the information you are sharing that either exhibits trust or exposes something about you that you might prefer to keep private.

There is an exception to the rule against hearsay for what are called "statements against interest."  As you probably know, hearsay is an out of court statement, offered as proof of the truth of the statement.  For example, you testify "Jane Doe told me she paid her taxes," and this testimony is offered to prove that Jane Doe paid her taxes.  Hearsay is generally inadmissible.  Statements against interest are statements that are thought to be so contrary to the interests of the speaker (either financially damaging or subjecting him to criminal liability, for example) that no one would say them unless they were true.

The premise of the statement against interest exception to hearsay is that people do feel motivated to disclose uncomfortable (and true) facts about themselves, such that we can believe those statements when made.  If, by contrast, we thought it utterly irrational to make these statements, whether true OR false, then there would be no reason to presume by their utterance that the statements are true.  The statement of the person on an online support group would appear to fall into a category similar to statements against interest.  There would appear to be no good reason to make the statements if they are false, but a strong reason to make the statements if they are true -- they take a load off the mind of the person making the disclosure, who may also now experience a sense of "giving back" to the community of sufferers.

In the case of statements against interest, however, the Supreme Court has -- wisely, in my view -- declared in Williamson v. United States that only the "against interest" components of such statements fall within the hearsay exception.  If, for example, John Doe were to confess that he robbed a bank and then add that Jane Roe also participated in the robbery, the part about Jane Roe would not fall within the statement against interest exception.  Pointing the finger at another person is not against the interests of the speaker, and there is a very good reason why one might make such a statement even if it is not true:  because it seemingly offers up someone else who can be punished for whatever misdeed is at issue.

Anonymous informants' tips of the sort that form the subject of the Navarette case would seem to fall into the category of statements not against interest (whether they are adjacent to against-interest statements or not).  We can easily come up with a reason for the anonymous person to sling mud, falsely, at the target of her accusations.  As an anonymous person, she can use her tip to exact revenge or otherwise harm her enemies.  It takes something more akin to good samaritanship, by contrast, to explain a truthful anonymous tip, since the person is taking out time to protect a vulnerable victim and is not even placing herself in a position to receive credit for that act.  For this reason, among others, I hope that the Court will be exceedingly careful about permitting police to trust anonymous tips without further foundation.