Friday, July 31, 2015

Supreme Snark

by Michael Dorf

As I noted earlier in the week, on Tuesday I was one of the panelists for the Practicing Law Institute's all-day Supreme Court Review session. Many interesting topics were discussed. Here I want to consider one set of them: The rudeness of Justice Scalia's dissent in Obergefell v. Hodges, especially these lines: "The opinion is couched in a style that is as pretentious as its content is egotistic"; "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began [as the majority opinion begins] I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie." These lines raised a number of questions.

(1) Is this really new? Supreme Court litigator Kannon Shanmugam (who is a former clerk for Justice Scalia) reminded everyone that Justice Scalia has been snarky for a long time. Prominent examples discussed by the panel included his concurrence in Webster v. Reproductive Health Services (1989), in which he called Justice O'Connor's opinion "irrational," his dissent in Planned Parenthood v. Casey (1992), in which he headed sections of his analysis with quotations from the plurality/majority opinion, which he then proceeded to mock, and his dissent in Lawrence v. Texas (2003), in which he lamented that the majority's rejection of morality simpliciter as a basis for forbidding same-sex sexual intimacy was no different from rejecting morality as a basis for forbidding, among other things, prostitution and bestiality. Point taken. Nonetheless, to my ear at least, "hide my head in a bag" is different in kind. Reasonable minds can differ.

(2) Is the phenomenon spreading? As I've noted before (here and here) Justice Kagan can be quite snarky. She has not reached Justice Scalia's level of rudeness to colleagues, but she certainly does not pull her punches. There was consensus among the panel that after Scalia, Kagan is the most likely to try to reach for a bon mot that occasionally comes with a dagger, and that occasionally Justice Sotomayor and Chief Justice Roberts will do the same.

(3) Assuming the increased snarkiness is real, what is the cause? One suggestion we discussed was that Justice Scalia has influenced his colleagues. That's possible but it strikes me as unlikely. The attacks on the rationality and style of his colleagues can only have the effect of alienating them. No Justice could look at Justice Scalia's occasional displays of ill temper in the U.S. Reports and think that this is the way to build a coalition for one's views.

(4) Another hypothesis--floated by NYU law professor Burt Neuborne--is that Justice Scalia has long had an "academic" style in which one pulls no punches. Professor Neuborne described the culture at NYU faculty workshops as conducive to the sort of style Justice Scalia sometimes adopts with respect to his colleagues. This hypothesis strikes me as plausible, if suitably narrowed. For one thing, faculty cultures differ. On each of the faculties that I have been a member (Rutgers-Camden, Columbia, and Cornell) the culture is much more polite. Colleagues ask substantively tough questions but it would be very unusual to attack someone's writing style or rationality. I have also presented papers at numerous law schools, including NYU, and even at the most aggressive of such schools, I've always found that tough comments and questions were directed at the substance of my argument, not my style or my person. That is even true at the University of Chicago--which has the reputation for having the most aggressive style of questioning and, more importantly, is where both Justice Scalia and Justice Kagan were faculty members. (Scalia started at UVA, then did a stint in government, and then went to Chicago, whereas Kagan started at Chicago and then, after her stint in government, went to Harvard). I agree with the suggestion that the influence of the U Chicago culture may explain why Justices Scalia and Kagan are more aggressive than their colleagues, but I don't think that's a full account of the phenomenon.

(5) My hypothesis is that to the extent that we are witnessing a general increase in snarkiness on the Supreme Court, internet culture may be partly responsible. In the competition for eyeballs, snark rules. Now this is admittedly simply a guess based only on my own informal observations. I have noticed that in my own writing for popular audiences (such as this blog), I tend to be more informal and thus perhaps occasionally more nasty than I ought to be. I try for a more detached tone in my academic writing for journals and books, but inevitably one's style bleeds over from one venue to the other. And of course, twenty-something law clerks are creatures of the internet. To be sure, to my knowledge, Supreme Court Justices don't blog or spend much time on Facebook, but in this as in so many other respects, they don't live in a vacuum and are thus influenced by the broader culture. If this is an age of snark, it would not be surprising to see that snark reflected in the U.S. Reports (and in lower court opinions as well).

(6) During our discussion at the PLI session, Touro emeritus professor Marty Schwartz and UC-Irvine dean Erwin Chemerinsky both noted that if a lawyer wrote in a brief some of the things that Justice Scalia writes in the U.S. Reports, he could well be disciplined by the bar or sanctioned by the court. Imagine a brief that described an argument by opposing counsel as "pretentious" or "egotistical," or asserting that anyone associated with it should hide his head in a bag. Professor Schwartz wondered whether there ought to be any mechanism for disciplining Supreme Court Justices for similar rudeness. The rest of us thought that was impractical.

(7) Dean Chemerinsky said he worries that snarkiness or even rudeness in Supreme Court opinions would influence students. He said (over lunch but this is hardly a secret) that for that reason and because he thought it was a distraction, in his 2015 casebook supplement he edited out Justice Scalia's pretentious-egotistical-hide-my-head-in-a-bag language. I told him that in the portion of the casebook supplement and Leading Cases (the abridged version of our casebook, updated annually) for which I am responsible, I left that language in. Although I agree that the language is potentially distracting from the main thrust of the substantive argument, I think it is useful for sparking a discussion about whether the passion expressed by Justice Scalia (and to some extent by the other dissenters) is wholly explained by his (and their) views about jurisprudence, rather than the normative desirability of a right to same-sex marriage. It strikes me as no accident that Justice Scalia's snarkiest snark comes in abortion and gay rights cases. Other faculty who use our casebook might choose to explore other issues with the pretentious-egotistical-hide-my-head-in-a-bag language or to ignore it entirely, but I thought it worth including to give con law instructors options. (I do not mention the language in the notes & questions that follow the case.)

(8) I also worry less than Dean Chemerinsky does about students emulating Supreme Court Justices in their writing. To my mind, the biggest problems with competent writing by law students are: (a) the mistaken impression that they ought to be writing in legalese as opposed to simple prose; and (b) the mistaken impression that good legal writing is boring. (Incompetent writing is its own problem, but I put that to one side.) Whatever else one might say about Justice Scalia's writing, it is accessible and interesting. Very few of our students will end up as judges and so the disciplinary mechanisms applicable to lawyers will prevent them from going too far over the line into nastiness. Meanwhile, if the examples of Justices Scalia and Kagan lead them to write in a more engaging style, that would count as a positive for me.

Thursday, July 30, 2015

Blaming the Victims -- German Style versus U.S. Style

by Neil H. Buchanan

Today, Verdict published Part Two of my two-column series analyzing the Greek/euro disaster.  Part One, published on Tuesday, was devoted mostly to describing the simple economics of the situation, as well as the baselessness of German claims that "playing by the rules" means never, ever renegotiating debts.  (I was gratified to see that the economist Joseph Stiglitz simultaneously wrote an op-ed for The New York Times which was fully consistent with my analysis, and which made further important arguments.)  My associated Dorf on Law post, also published on Tuesday, further developed the point that many types of debt are (and should be able to be) renegotiated all the time, both as part of formal bankruptcies and in ongoing party-to-party dealings.

Today's Part Two considers three additional issues: (1) the possible (horrifying) consequences -- for Greece, Germany, Europe as a whole, the U.S., and pretty much everyone else -- of the political crisis that Germany's leaders have self-righteously set in motion, (2) the ridiculously unfair treatment of the Greek government by tut-tutting European elites, and (3) the odd notion that somehow the Greek people deserve group blame for the purported failures (exaggerated and irrelevant as they may be) of their government over the decades, and thus that they must all suffer now.  Obviously, I hope that readers here will choose to read those arguments in full, at the links above.

At the end of today's column, I added the following parenthetical: "Note: At the end of Part One of this series of columns, I wrote that as part of today’s column, I would 'explain a disturbing parallel between the moralizing that Europe’s leaders have used to condemn Greece’s people to years of pain and ideologically similar victim-blaming in the United States.' Because of the length of today’s column, I have decided to move that discussion into a blog post today at the Dorf on Law blog."  Here goes.

Almost three years ago, I published a Verdict column in which I explained how the current leadership of the Republican Party can be accurately described as "sociopathic."  I subsequently developed that idea in a number of posts here on Dorf on Law.  (One good example can be found here.)  I did not use the word "sociopathic" loosely, in the manner of too many right-wing pundits who accuse liberals of "treason," or Republican politicians who expand the definition of "communism" to the point where an increase in the capital gains tax is described as tantamount to setting up a gulag.  Instead, I relied on well-established clinical definitions of the concept of sociopathy, using examples to show how the current slate of Republican leaders disturbingly fits into that definition.

Among those examples, one struck me as especially egregious.  Former House Majority Leader Eric Cantor, in budget negotiations during one of the contrived debt ceiling crises, decided to insist on reducing (among many other things) financing for nutrition programs for the poor.  Those nutrition programs, already quite tiny, are aimed specifically at helping children obtain enough food to be able to grow and develop normally.  Even in terms of cold cost-benefit analysis, this is one of the best things that the government could possibly be doing, because early childhood nutrition supports brain development and allows children to grow into mentally and physically healthy adults.

Yet the Republican leadership decided that their line in the sand would be based on the idea that it is essential to take food out of hungry people's mouths.  The only possible argument that I could imagine to support such a cruel approach is that these children will benefit if their parents -- faced with the loss of government-provided nutrition -- will suddenly be motivated enough to find the jobs that they supposedly have been lazily refusing to seek.  This would, presumably, also make poor children better off because they would see adults who set a good example by working rather than "taking."  (But I should note that, in the "takers versus makers" view of the world, even people who have jobs are takers.  But I digress.)

Of course, there have not been enough jobs for people to fill, no matter how motivated they might be.  In addition, many of the jobs that are available pay so little that they cannot support a family.  (The infamous example of Wal-Mart employees being so poor that they qualify for Food Stamps -- which Republicans want to cut or even eliminate -- is only the tip of that iceberg.)  But in any case, what if a child is unlucky enough to be born to parents who, for any of a number of reasons, will not do what is necessary to make up for the lost nutrition assistance that was helping to feed their children?

In this context, then, blaming the victims comes in two parts.  First, the people who cannot get jobs are told that they are losers for not being able to find jobs.  Their plight is their fault.  Second, and even more disturbingly, children whose parents fall into the first category are left to suffer, because of who their parents are.  And those same children, many of whose brain development is harmed by the lack of adequate nutrition during key growing years, are then sent to inadequately funded schools, which is again apparently the fault of their parents for not being able to afford to move to Scarsdale, Wellesley, Chevy Chase, or Winnetka.

On a related note, one of my former students once told me that she ended a friendship during the debate about the Affordable Care Act.  Her friend insisted that the government should not provide health care to anyone, because poor people need to be motivated to get jobs.  My former student pointed out that many people with jobs, even seemingly good jobs, could not get health insurance.  She mentioned in particular her parents, who were both school teachers in religious schools in the South.  Her now-former friend's response: "Well, my parents loved me enough that they took jobs that would allow them to give me good health care."  As I said, end of friendship.

In today's Verdict column, I point out that the German leaders' approach to debt negotiations is that a deal is a deal, no matter how that deal was made, and no matter who is hurt by it.  I included one especially vivid example, referring to an American academic's conversations with some German economists: "Debtors who default, they explained, would simply have to suffer, no matter how rough and even unfair the terms of the loans."

One might describe my argument at that point in the column as simply a long paraphrase of a famous catchphrase from a "Simpsons" character: "Won't somebody please think of the children!"  Essentially, the German argument is that unemployment rates in Greece (and Spain, and Portugal, and ...) in excess of 50% for young people are the necessary consequences of their parents' bad deeds.  Although I disagree with the assertion that the parents engaged in bad deeds (at least, not the vast majority of middle- and lower-class Greeks, who have been the victims of a kleptocratic class that now is fleeing the country with its ill-gotten riches), where does anyone come off saying that a 23-year-old Greek deserves to have no economic future, merely because some older Greeks are trying to renegotiate the country's debt in a way that allows everyone (including Greece's creditors) to be better off?

Apparently, the problem with Greece's young people is that their parents did not love them enough not to borrow money from Germany, or more accurately, not to anticipate that German leaders would unilaterally impose after the fact a dangerously narrow and ahistorical notion of "playing by the rules."

Interestingly, in my research into the ethics of intergenerational justice, I discovered that the German constitution is one of the few governing documents in the world that specifically requires the government to take into account how its policies will affect future generations.  (That provision is apparently a dead letter in practice, but stay with me here.)  Today's German leaders have apparently concluded that the best way to provide a better life for future generations is to make it impossible for the debts owed to German taxpayers ever to be repaid, and to obliterate decades of work by earlier German leaders to rebuild their country's reputation as a responsible and enlightened global leader.  Meanwhile, those Southern Europeans -- and their children -- are left to suffer in a virtual debtors' prison.

Wednesday, July 29, 2015

Is It Ethical To Go Undercover To Expose Evil By Participating in Evil?

by Michael Dorf

My Verdict column for this week asks whether the makers and disseminators of the videos showing Planned Parenthood officials seeming to haggle over prices the organization charges for fetal body parts could be liable for defamation for misleading editing. Whereas the raw footage shows clearly that the officials are discussing partial reimbursement for expenses associated with collection, storage, and transport of fetal remains (which is legal), the editing and captioning creates the impression of for-profit sale (which is a crime). I explain in the column that defamation liability is a possibility although I caution about the dangers of censorship that arise when journalists are held to answer in damages for editing out context, given that editing is essential to journalism. In this post I want to raise a question about the ethics of undercover cause journalism.

Putting aside deliberately misleading editing, I have considerable sympathy for the tactics of citizen journalists who aim to capture on film what they regard as immoral conduct. Thus, in prior posts (e.g., here and here) I have raised objections to "ag-gag" laws that make it illegal to enter slaughterhouses and other sites of animal exploitation for purposes of documenting what happens there and to the Fourth Circuit's Food Lion decision insofar as it permitted state law liability for trespass and breach of the duty of loyalty for defendants who obtained employment at Food Lion for the purpose of exposing its unsafe food handling practices. Although I do not share the pro-life position of the citizen journalists who targeted Planned Parenthood, I understand that they face challenges similar to those that face other citizen journalists motivated by the desire to expose what they regard as evil. (Three chapters of the book Professor Colb and I have written, Beating Hearts: Abortion and Animal Rights--forthcoming in 2016 from Columbia University Press--address strategic and tactical similarities between the animal rights movement and the pro-life movement.)

The Planned Parenthood videos were obtained by pro-life activists pretending to be potential purchasers of fetal body parts, conduct which, apart from the lying, does not appear to violate any moral principles the activists affirm. But other sorts of footage may require undercover cause journalists to participate in the very evil they hope to end in order to capture it on video. A pro-life nurse who secretly records a late-term abortion or an animal-rights activist who obtains a job in a slaughterhouse commits the very act her going undercover aims to subvert. Is that problematic?

Before answering that question dirctly, it may be useful to compare it with the question whether undercover police officers are justified in breaking the law in order to catch criminals. Although tv and film dramas often suggest that undercover police only ever feign criminality (e.g., they don't inhale), the truth is quite different. In various jurisdictions and at various times, undercover police have committed acts that would clearly be criminal--sometimes seriously so--but for their status as police officers. As UC Davis law professor Elizabeth Joh argued in a 2009 Stanford Law Review article, this practice--what she calls authorized criminality--is highly problematic and largely unregulated.

Any justification for the police to engage in authorized criminality would have to be consequentialist: Even if police participation in crime causes harm, the argument goes, it is calculated to reduce the total amount of harm caused by crime. Undercover police operations catch criminals and may deter crime, because would-be criminals who fear that their partners in crime may be undercover police will be less willing to engage in crime. At least that's the theory.

This approach could apply to private citizen journalists aiming to uncover evil if the citizen journalists' own ethics are consequentialist. For example, a Peter Singer-inspired utilitarian opponent of factory farming might have no moral objection to taking a job at a slaughterhouse if she thinks that the net result of her activity exposing what happens at the slaughterhouse will be to reduce animal suffering.

However, most activists in moral causes are not utilitarians or other sorts of consequentialists. People who favor animal rights generally think that it is wrong to participate in most activities that cause animals to suffer or die. Likewise, people who are strongly pro-life think that abortion is wrong and that it is wrong for them to participate in abortion, even quite remotely. Think about the objections of the employers in the Hobby Lobby case. They did not want to participate in providing health insurance that covered forms of contraception that they regarded as methods of abortion. If it could be shown that by providing such health insurance, the net abortion rate would decline--perhaps because other non-abortifiacient methods of contraception would lead to fewer unwanted pregnancies--presumably the employers would still object. So it would seem to follow a fortiori that someone who thinks abortion is wrong on deontological grounds should not participate directly in an abortion, even if in doing so she obtains footage of the abortion that can be used to sway public opinion and thus reduce the total number of abortions.

In a certain sense, the objection I'm considering here is a familiar problem for people who believe in rights: A consequentialism of rights--i.e., acting so as to minimize rights violations--is problematic. And yet, people who care about rights understandably want to act in a way that minimizes rights violations. (A useful, if somewhat dense, treatment of the broader problem can be found here.) My view, for what it is worth, is that the objection to a consequentialism of rights melts away where one acts to minimize violations of rights by others but that one cannot simply trade off one's own rights violations in order to reduce net rights violations by oneself plus others. If it is simply wrong to kill, then it is wrong to kill A even if (somehow) killing A leads to the sparing of B and C. This is simply what it means to reject consequentialism.

There may be ways around this sort of objection. Perhaps the pro-life nurse who takes a job assisting in abortions finds ways not to provide any real assistance while she surreptitiously records the abortions. Or the animal rights activist takes a job in the slaughterhouse that does not directly involve killing. But I tend to think that this is a dodge. If the employer is willing to hire the undercover activist to do a job, presumably that's because the job is part of the process that the activist regards as evil.

Bottom Line: My tentative answer to the question that titles this post is "no."

Tuesday, July 28, 2015

Simplistic Moralism in the Greek Crisis, With a Few Thoughts About the Purposes of Bankruptcy

by Neil H. Buchanan

This week in Verdict, I am publishing a two-part column about the Greek/European economic and political crisis, which dominated the news until very recently.  Part One was published today, and Part Two will be published on Thursday.

In today's column, I explain why the economic conditions that have been imposed on the Greek people are so ruinous, to say nothing of being self-defeating for the creditor countries.  The economics behind this story continue to be quite simple, and I am hardly the first economist to describe the insistence on ever-deeper austerity policies as both cruel and insane.  Continued austerity simply makes it ever-harder for Greece to pay its debts, which all but guarantees that the country will soon need further debt negotiations to avoid the next possible full-on default.  Yet the leaders of the key European institutions -- quite clearly at the insistence of the most politically and economically powerful country in Europe, Germany -- demanded even further austerity even to begin the process of negotiating a longer-term package.

Prior to the Great Recession, Greece was avoiding reforms of its governance structure that would have been in the overall interest of the country.  But so were most countries.  For example, it is of more than passing interest that I have given lectures abroad over the last few years with titles like, "Will the United States Ever Again Have a Functioning Budgetary System?"  As I argue in today's Verdict column, however, the idea that Greece's longstanding political problems are an excuse to impose gratuitous, mutually destructive conditions on the Greek people is simply absurd.

There is much more in today's Verdict column, of course, and I encourage readers of Dorf on Law to read it in full.  Here, however, I want to focus on a particular issue that I raise in the column, regarding the moral claims that Germany's leaders have openly relied upon in condemning Greece to unending pain.  In particular, German Chancellor Angela Merkel and others have continually sneered that the Greeks supposedly refuse to "play by the rules."  If you borrow money, you must repay the money, on time and in full, they say.  End of story.  And, they continue, they are tired of the Greeks repeatedly breaking that simple moral code.  That the Germans themselves have not always considered that code to be inviolable, of course, is conveniently forgotten, as West Germany's post-World War II debt relief is sucked into the memory hole.

The problem, however, is that this idea of inviolable loan contracts is beyond naive.  Not just in the context of debt write-downs in the aftermath of global war, but in simple day-to-day commerce, parties to contracts -- especially loan contracts -- engage in debt relief all the time, and sometimes debtors default entirely.  As I note in today's column, commercial debt is "rated" by trained financial analysts on the basis of how likely it is to be repaid.  Debt risk analysis could not even be "a thing" if the Germans' simplistic moralizing were an accurate description of how the world works.

And then, of course, there is bankruptcy.  The U.S. Congress itself engaged in its own spasm of victim-blaming moralizing not long ago, restricting the availability of bankruptcy protection on the basis of false and exaggerated claims that the system was allowing morally defective people to walk away from their debts.  Even so, Congress obviously did not repeal Title 11 of the U.S. Code, which still provides various ways in which people and businesses can obtain relief from debt obligations that have become impossible to repay.

Most importantly, when lenders issue loans, they do so knowing how those bankruptcy provisions work, which in turn allows them to determine the interest rates and other conditions that they will impose on those loans.  The loans are then issued in the full knowledge that the borrower might not pay, in full or in part.  Lending to people or businesses that already owe large amounts of money is more risky than lending to people with relatively low levels of debt.  This is Finance 101, hardly some exotic theory worked out by libertine anti-capitalists.

Yet the availability of bankruptcy -- both formal bankruptcy, and what might be called "effective bankruptcy," in which parties engage in lender-borrower negotiations to adjust loan terms on the fly -- surely cannot be allowed to provide carte blanche for anyone and everyone to walk away from their debts.  Before one even gets to the question of debtors who walk away from formal loan contracts, however, it is important to think about other categories of debt that are treated differently by the bankruptcy laws (and in other areas of the law).

As one particularly interesting example, U.S. personal bankruptcy laws prevent "deadbeat dads" from walking away from their child support and related debts.  This is essential, because the nature of a negotiation that created a divorced spouse's obligations is obviously rather different from the negotiations that lead to the issuance of legally enforceable loans.  In particular, the payor spouse is supposed to be paying for the expenses of the child, who is represented in the negotiation partly by the payee spouse, but importantly also by the court.  When child support is unpaid, it either means that the child suffers, or the other spouse essentially fronts the money to the ex-spouse, by paying for the child's expenses.

I suppose that one could still say, "Well, the would-be-payee spouse knew, when she decided to pay for the child's expenses, that the should-be-payor spouse might never be brought to justice.  So the spouse to whom back support is now owed made her decision knowing that the money might never be recovered."  In a sense, that is true.  Plenty of women (and some men) have essentially reduced their own living standards on what amounts to little more than hope that their ex-spouses will finally be made to pay.

In some broad categorical sense, then, it is true that every decision to loan money is made in the shadow of the threat of never being repaid.  Yet our bankruptcy laws sensibly recognize that some categories of debt are meaningfully different from others, and Chapters 7 and 13 of the bankruptcy code explicitly forbid discharges of child support and divorce-related obligations.  (On the other hand, the code is now gratuitously harsh regarding student loan debt.)

The difference between allowing a person to reduce some of his formal borrowing obligations while preventing him from reducing his payments to other categories of obligees is based, in part, on the idea of the relative power or vulnerability of the obligees.  The counter-party to a deadbeat dad is, in general, not a repeat player in this kind of loan process, and is thus not likely to be able to smooth out the occasional loss that banks and other lenders take as a matter of course.

Such classic equitable concerns, however, are not the whole story.  There is an important difference between saying, "Well, nothing is certain in life, and so I should not consider anything a sure thing," and something like this: "The ability to carry on normal commerce requires that parties update their expectations on a regular basis.  While it would be great if every loan and every contract were carried out to the letter, that is not the world in which we live.  Some categories of contracts, while still enforceable, deserve less of a presumption of inviolability than others."

What puts a loan in the category of being potentially more easily renegotiated?  In part, it is a matter of simply understanding what counts as "normal" in daily life, along with how explicit the risks are before the parties agree to a contract.  For example, in our writings about the U.S. debt ceiling, Professor Dorf and I have argued that the federal government should avoid a default on its obligations, if push comes to shove, by issuing debt in excess of the statutory ceiling.

As I have argued in multiple blog posts, one reason for this is that the people who are currently awaiting payments from the federal government -- not just bondholders, but hospitals that have already provided services to Medicare patients, contractors who have provided equipment to the Pentagon, and many others -- have every reason to think that they will be paid, in full and on time.  Why?  Because the U.S. government always has done so, and it has very good reasons to want to keep that winning streak alive.  Even though one could say that, especially in the post-2011 Tea Party era of debt ceiling showdowns, everyone is now on notice that the federal government could default in the midst of a political standoff, that strikes me as an odd way to assign risk.

What makes it so strange is not merely that the federal government's counter-parties are generally in such a poor position to predict and prepare for such a catastrophic event.  It is also because the alternative, while bad, is so much less bad.  That is, if the government were to issue debt in excess of the statutory ceiling, everyone acknowledges that bond buyers (aka lenders) will treat that new debt as riskier than other federal debt.  The new debt will thus surely carry higher interest rates, which is the price that taxpayers will pay for the Republicans' insistence on using this highly inappropriate strategy.

The larger point, however, is that the buyers of the new debt will loan money in the knowledge that they might not be repaid -- and such knowledge is significantly more salient than the background knowledge that there are no guarantees in life.

One of the reasons that the U.S. government should avoid defaulting on its day-to-day obligations, in fact, is that doing so will create difficulties in the future, as hospitals and others that have been harmed take measures that will increase transactions costs for everyone involved, if they are even willing to work with the federal government again.  We affirmatively want people to know that they can count on the United States government to meet its obligations.

By contrast, everyone knew -- or should have known -- when the loans were issued to Greece (especially by Germany and other governments) that the likelihood of repayment was low.  Notably, the people who now accuse the Greeks of being chronically dishonest, corrupt, and so on, can hardly also say that they are surprised when the Greek government does not pay its loans.  But even those lenders who are not engaged in chauvinistic name-calling were issuing loans even as they were aware that the Greek economy was being forced to contract further.  Repayment of such loans was knowably impossible.

Of the types of obligations that can be subject to adjustment through renegotiation, then, the loans that the Greek government (and, I should emphasize, the International Monetary Fund) says must be reduced are right at the top of the list.  There are still reasons why governments (including the Greek government) will want to avoid and minimize the need for such renegotiations in the future, so we are not opening a Pandora's Box by recognizing that Greece is in a debt trap from which orthodox policies prevent its escape.

Again, this entire discussion of the supposed immorality of renegotiating debt should be unnecessary, because the continued austerity that is being imposed on Greece is simply going to guarantee that the loans will never be repaid, anyway.  That ship has sailed.  The only question is how to make it possible for the Greek people to escape this trap, and for the Greek economy to emerge from its depression as soon as possible.  Calling the Greeks bad people might make other Europeans feel good, but it solves nothing, and -- at least in the context of debt renegotiations -- it is simply wrong.

Monday, July 27, 2015

The Triumph of Chevron Step Zero?

By Michael Dorf

Tomorrow I will be speaking at the Practicing Law Institute's annual Supreme Court Review session. This is the seventeenth such session and, if memory serves, I have been a panelist since just about the beginning. It's always a fun-filled day. UC-Irvine Dean Erwin Chemerinsky and Touro Emeritus Professor Marty Schwartz organize the festivities as we range over the SCOTUS Term just completed. PLI is a non-profit provider of continuing legal education but it has a lot of expenses (including travel expenses but no pay for us speakers) so it charges for attendance or remote access. That's my way of saying that if you want to attend or watch, you'll need to pay. (Some scholarships are available.)

In addition to commenting on cases presented by other speakers, each speaker is assigned the responsibility for presenting a portfolio of cases. My portfolio includes Texas Dep’t of Housing v. Inclusive Communities Project, Inc., which holds that disparate-impact claims are cognizable under the Fair Housing Act (FHA). Because the case was decided at the end of the Term, when my attention was mostly focused on other cases, I only recently had occasion to read it carefully in preparation for tomorrow's panel. My presentation will focus chiefly on the big-picture disagreement between the majority and dissent over the availability of disparate impact claims under the FHA and more broadly, but here I want to note something that cuts across the Court's statutory jurisprudence: the possibly declining influence of Chevron deference.

In 1984, in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. the Court held that where a statute contains unclear language, courts ought to defer to a reasonable agency interpretation of that language. Chevron was not the first case to say this but it became the standard citation for the proposition that courts defer to administrative agencies. And Chevron deference was grounded in principles of both expertise and accountability. As between agencies--staffed by experts and accountable to the People through the president--and courts--staffed by generalists with life tenure--it should be assumed that Congress preferred agencies to fill in statutory gaps. Over the years, Chevron was refined into a two-step test: (1) Is the statutory language unclear? and (2) If so, is the agency interpretation reasonable?

Yet as Cass Sunstein argued in an important paper ten years ago, borrowing a term coined by Tom Merrill and Kristin Hickman, there has emerged an important threshold question: Chevron step zero. In Chevron step zero the court asks whether the Chevron framework applies at all or whether instead the lack of clarity in a statute should be treated as calling for judicial rather than agency clarification. Sunstein argued that the emergence of Chevron step zero was a regrettable occurrence, as it marked a decline of deference to agencies. I'm not sure I agree with that normative assessment but my aim in this post is simply expository rather than normative. I want to suggest that two cases in the past Term vindicate the view that Chevron step zero is real and increasingly important.

The SCOTUS itself has never expressly used the term "Chevron step zero" but a few federal appeals court decisions have. More important than the terminology, however, is the substance of what the Supreme Court cases do, and there the evidence is quite clear.

In King v. Burwell, for example, CJ Roberts declines to decide the permissibility of subsidies on federal exchanges based on Chevron, even though his opinion makes clear that the Internal Revenue Service's interpretation of the Affordable Care Act would survive Chevron's two-step process. He offers a classic Chevron-step-zero account of why the issue goes to the Court rather than an agency:
Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. [Citation] It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort.
Perhaps even more striking than that passage is the Court's resolution of Texas Dep't of Housing at the Chevron-step-zero stage without even pausing to consider whether to apply the Chevron framework. Justice Kennedy's majority opinion simply assumes that the question presented is whether the FHA permits disparate impact claims rather than first considering the possibility that the issue should be whether the Housing and Urban Development (HUD) regulation interpreting the FHA to encompass disparate impact liability satisfies Chevron. The Court decides the case at the Chevron-step-zero stage without even discussing the Chevron-step-zero issue. It's a kind of Chevron-step-negative-one ruling. (Justice Alito, in dissent, rejects the HUD reg at Chevron step one, arguing that the statute's language clearly encompasses only intentional discrimination.)

King and Texas Dep't of Housing are somewhat unusual Chevron-step-zero decisions in that both cases uphold the underlying agency interpretation of the statute. Given that the Court thinks in each case that the agency got it right, it follows a fortiori that the Court would have thought Chevron was satisfied if the Chevron framework applied. As Adam White noted in a SCOTUSblog post  after King v. Burwell, Chevron step zero first emerged in cases in which the Court struck down administrative interpretations of statutes. It was a doctrine embraced by conservatives seeking to rein in the administrative state. Indeed, that's part of the reason why Sunstein--a fanboy of the administrative state if ever there was one--fretted over Chevron step zero.

Despite its conservative origins and what may yet prove to be its conservative bias, Chevron step zero has been most vigorously opposed on the Supreme Court by Justice Scalia. His lone dissent in the 2001 case of United States v. Mead Corp. provides a particularly vigorous defense of a presumption in favor of Chevron's applicability.  However, liberals who share Sunstein's concern about the long-term implications of Chevron step zero should not take too much comfort from Justice Scalia's opposition. As cases like King and Texas Dep't of Housing show, he is quite willing to reject agency interpretations that do not fit his normative views at Chevron step one, finding language that others deem unclear to be dispositive. Thus, to take an example I blogged about last week, even though Justice Scalia has argued for Chevron deference to the Equal Employment Opportunity Commission (EEOC), don't count on him voting to uphold the EEOC conclusion that sexual orientation discrimination violates Title VII's prohibition on sex discrimination.

Friday, July 24, 2015

Veganism, Year Seven and Beyond

by Neil H. Buchanan

Seven years ago today, I published a post here on Dorf on Law describing why I had decided to become a vegan.  Each year since then, I have written what I now call my "veganniversary" post, discussing some aspect of veganism.  Last year's post (here) contains links to all previous veganniversary posts.

As I described in last year's post, my general approach has been to leave the academic and philosophical discussions of veganism to Professors Colb and Dorf, whose forthcoming book (soon to be announced on this blog) amply demonstrates their mastery of the intellectual issues raised by veganism.  I have, instead, focused on what it is like to live life as a vegan, often discussing other people's fears and concerns about veganism, and so forth.

I also examine how veganism is treated in popular culture, noting the increasing acceptance of veganism in our society, but also gnashing my teeth at the insistently ignorant dismissals of veganism by people who otherwise surely think of themselves as quite progressive.  A good example of the latter is an article in the Style Section of The New York Times this past May, in which the writer could barely contain her contempt for veganism.  I will not go into detail here, but one can easily infer the writer's attitude from statements like this one: "Making cumin-and-turmeric-flecked Baba’s Kidney Beans a go-to meal wasn’t originally BeyoncĂ© or Jay Z’s idea."  Sheesh.

In any case, readers will note that the title of today's post is "Veganism, Year Seven and Beyond."  My plan at this point is to discontinue my veganniversary posts, mostly because I have already said many times, in many different ways, all that really needs to be said: Being a vegan is easy (and certainly easier than I thought it would be), healthy, good for the environment, and most importantly, ethical.

I will surely have occasion to write vegan-related posts at other times of the year, as news warrants.  At this point, however, an annual count seems to miss the point.  This is, as it should be, a permanent thing.  No need to keep counting.

Thursday, July 23, 2015

Left vs. Right on How to Create Prosperity

by Neil H. Buchanan

A Dorf on Law reader contacted me recently, asking me to clarify the major parties' competing theories on how to create economic prosperity.  This reader, a non-economist (horrors!), asked if I could lay out the differences between the Republicans' and Democrats' approaches to economic policy, and explain what the evidence says about which approach is right (or, one supposes, possibly that both are wrong).

In some ways, I could argue that this is a very timely question, because -- with only 474 days to go before Election Day!! -- the Republican presidential candidates are already talking about taxes.  A lot.  OK, so I will argue that this is a very timely question, but for a very specific reason: Almost surely, no one (and certainly none of the Republicans) will actually explain why their economic plans will lead to greater prosperity.  There will instead be an unstated presumption that it is self-evident where the key to prosperity is stored, yet somehow only Candidate X is the one who knows how to unlock the door.

On the Republican side, everything is about cutting taxes.  Well, not quite everything, because cutting spending (in particular, social spending) is also a big deal for them, although given the choice, they will always prioritize lower taxes over lower spending (even when offered a $10-for-$1 deal).  It is also worth noting again that Republicans have revealed quite clearly that reducing deficits and the national debt is not a priority at all.  They talk about it a lot, but they do not act on it, and most of what they do while in power increases deficits.  (Not that deficits are inherently bad, but for reasons that should be obvious by the end of this post, the way that Republicans increase deficits actually is usually bad.)  They also talk a fair bit about cutting supposedly burdensome regulations, but again, that is nothing compared to their commitment to tax cuts.

Democrats are not as monolithic or single-minded.  In part, this is because they are only now emerging from a four-decade-long defensive crouch on economic policy.  I specifically include the Carter Administration in this time period, by the way, because notwithstanding his other virtues, Jimmy Carter's economic policy began the period of full-on neoliberalism from the Democrats.  Having spent so much time saying "Me too!" about the whole Reaganite economic agenda, Democrats are finally showing stirrings that they might rally around labor rights (although President Obama's strong-arming of the recent Trans-Pacific Partnership fast-track vote shows that there is still a long way to go there) and stake out other issues on which they truly differ from Republicans.

With economic inequality having recently become such a major concern for most Americans, Democrats are increasingly willing to come out in favor of dreaded "tax increases," because they are evidently now confident that they can sell progressive tax changes (higher tax rates on higher incomes) without losing votes.  That will not stop Republicans from screaming about tax increases, of course, but the terrain has thankfully changed.  Democrats are also willing to talk about spending money on income supports (food stamps, unemployment benefits, and so on), infrastructure, education, social programs (universal pre-K, nutrition programs, and so on).

In a basic sense, then, the current political reality looks like this: Republicans are in favor of tax cuts and spending cuts, usually combined in a way that increases borrowing, and Democrats are in favor of some tax increases and spending increases, with varying effects on deficits.

What my email correspondent wanted to know, specifically, was why it was not obvious that tax cuts for the non-rich and spending increases on programs for the non-rich are the clear path to prosperity.  When the economy is weak, that is clearly and obviously correct.  It is, in fact, classic Keynesianism.  And the evidence of the past eight years, in the U.S. and especially in Europe, strongly supports the classic Keynesian story.  A weak economy needs spending, and a government that either spends directly or that gives money to people (through food stamps, other benefits, or tax cuts) who will immediately spend that money is going to see its economy get stronger.  The too-small (and too regressive) 2009-10 U.S. fiscal stimulus had exactly this effect, and when it went away, the economy weakened predictably.  In Europe, austerity policies harmed the economy, and pauses in austerity policies (especially in the U.K., prior to their most recent election) temporarily eased the pain.

Readers who are old enough to remember Ronald Reagan's embrace of "supply-side economics" might correctly intuit that the Reagan Revolution was in part a reaction to demand-side economics.  Classic Keynesianism is, in fact, generally concerned with demand (that is, spending), because it is focused on dealing with an economy that has unemployed resources -- that is, an economy that can supply much more than is currently being demanded.

But Keynesian economics was never exclusively about demand-side economics.  Once the economy reaches its potential, there is no reason to continue to push up demand, because there are no unused resources to put back to work.  Even this, however, is somewhat overstated, because it turns out that a very strong economy can make it profitable to put seemingly unusable resources to work.  For the wonks out there, this is the theory of "hysteresis," which simply says that backing off on demand-side policies too soon squanders the opportunity to take people who are too easily viewed as "unemployable" and turn them into productive workers.

In the 1980's, the big argument among conventional economists of the non-Keynesian persuasion was that the "full employment" rate of unemployment was 6%, or 6.5%, or something like that.  Any rate lower than that would unleash ruinous inflation, these economists predicted.  By the time Bill Clinton left office, however, we had had more than six years of sub-6% unemployment rates, the last three-plus years of which were below 5%.  In fact, unemployment was at 3.9% for September through October of 2000 (yet Al Gore managed to make that election close enough to be stolen, rather than winning in a romp).

Today, the Democrats are sensibly talking about various types of spending and taxing policies that would put more people to work.  Just as important, the Democrats are also noticing that the unemployment rate's decline to 5.3% under Obama has not had the usual positive effect on wages, which is part of the inequality story, and which is why the economy of 2015 does not feel as prosperous as in 1995-97, when unemployment was at current levels.

Again, however, it is not at all accurate to say "Republicans care only about the supply side, and Democrats care only about the demand side."  Instead, it would be more accurate to say, "Republicans care only about the supply side (and think that demand-side policies are per se ruinous), and Democrats think about both, depending on the context."

What is the supply side?  Rather than getting people to buy everything that firms and workers can currently produce, the goal of supply-side policies is to make it possible for firms and workers to produce ever more output, even when they are all fully employed.  That is, supply-side policies are designed to increase economic productivity.  The big difference between the parties is in how to accomplish that.

Republicans are, again, all about tax cuts.  (Their anti-regulatory fervor rears its head here, too, but I will put that aside.)  And to the extent that they feel the need to justify those tax cuts, the do so with standard supply-side rhetoric.  Tax cuts, they say, will unleash economic activity that is being discouraged by low rates of return.  Although their rhetoric generally obscures the top-down nature of their underlying economic theory, this really is nothing but trickle-down economics.  The more the tax cuts are aimed at the "job creators," they say, the better the economic outcome.

One of the standard claims made by Republican politicians and their economic advisors is that "if you tax something, you'll get less of it."  Therefore, if you tax income, you'll get less income, and if you tax the returns on business investment (capital gains, for example), you'll get less of that.  Too many non-conservative economists and politicians buy that line as a starting point, but that is a story for a different day.

The problem, in any case, is that the evidence for the supply-side effects of tax cuts is incredibly weak, bordering on nonexistent.  In a Verdict column during the 2012 primaries, I quoted Christina Romer (Berkeley economics professor and former chief economist for the Obama Administration) as follows: "[T]he strong conclusion from available evidence is that [the] effects [of income tax rates on people’s earnings] are small. This means policy makers should spend a lot less time worrying about the incentive effects of marginal rates and a lot more worrying about other tax issues."  I also noted the lack of evidence supporting capital gains tax cuts as a way to increase economic productivity.

I should also note that the Paul Ryan-led attempt to revive dependency theory -- the idea that "the dole" causes people to settle for lives of indolence and sloth -- is a subset of supply-side analysis.  The claim is that offering, for example, unemployment benefits simply encourages people to choose not to work, which reduces the economy's potential output.  This was the deranged excuse for cutting off unemployment benefits for long-term unemployed people during the aftermath of the Great Recession, even though their continued inability to find jobs was clearly a demand-side phenomenon, not a matter of government-induced laziness.

Democrats, meanwhile, are much more eclectic in their efforts to look for ways to increase economic productivity.  In part, this is because they are not crazy enough to imagine, as Jeb Bush bizarrely does, that the economy's growth rate could permanently be increased to 4%.  The evidence of modern capitalism, especially in the United States, is that supply-side effects are never that large.  Still, Democrats (including President Obama) have endorsed various types of spending designed to improve the current and long-range productivity of the economy: paying for infrastructure improvements, subsidizing basic research and development, improving schools at all levels, and so on.

Obviously, I do not view the Republicans-versus-Democrats question on economic prosperity as being a close call, or even a fair fight.  That is why I am a liberal and (though frequently disappointed) a Democrat.  The evidence and theory are so clear, and the contrary evidence and theories (such as "expansionary austerity") so weak, that listening to every Republican talk about the magic of further tax cuts takes on a surreal air.

But, even for people who reject my assessment of the weight of the evidence, the basic story is this: Republicans focus only on supply-side policies, believing that tax cuts in particular will increase economic prosperity, while Democrats favor expansionary demand-side policies when needed, and they favor various supply-side spending policies as well.  If any Republican presidential candidate says anything that deviates from that script, I will be shocked.  If any Democratic candidate fails to push for progressive policies that also have clearly positive supply-side effects, I will be appalled.

Wednesday, July 22, 2015

Criminal Injustice and Avatars

by Sherry F. Colb

In my Verdict column for this week, I discuss a proposal offered by Adam Benforado, author of Unfair:  The New Science of Criminal Injustice, that instead of trying criminal cases "live" before juries, we instead record the trials and edit out inadmissible material, objectionable questions, along with objections and rulings on those objections, only then showing the results to juries and thus protecting jurors from information that would likely taint their consideration of cases.  In the interview with Benforado in which he discussed this proposal, he mentioned a second one as well, one that I will examine in this post.

Benforado suggested (in the interview and, presumably, in the book as well, which I have only just begun to read) that instead of the jury watching a recording of the actual witnesses at trial, the recording of the trial should replace the witnesses with avatars.  Let us evaluate both upsides and downsides of this proposal.  Because it may sound preposterous and even bizarre to some readers, I will begin with the upsides.

One of the injustices embedded in the existing criminal justice system is the way in which juries tend to evaluate the credibility of witnesses.  Research supports the conclusion that the following characteristics of witnesses make them appear more credible to juries:  whiteness, attractiveness, and slimness.  There are other such traits, but even just these three are alarming.  That a jury might accept the testimony of one witness as true because he is white and reject the testimony of another because she is a large person or unattractive is extremely disturbing, and what makes it even worse is that jurors seem to be completely unconscious of harboring these biases.  That is, if asked "why did you believe him?," jurors are likely unable to detect the fact that his race (or weight or attractiveness) played any role.  If the first step toward fixing a problem is acknowledging it, I would think it might be difficult to acknowledge something that occurs outside of consciousness and correspondingly hard to "fix the problem."

Not without reason, then, Benforado wants jurors to be able to hear and see witness testimony without knowing witnesses' race, weight, or attractiveness.  The way to do that, he concludes, is by replacing the faces of actual witnesses with avatars.  I assume that all of the avatars will be equally attractive or unattractive, equally slim or heavy, and colorless (or perhaps all of the same unnatural facial color, like gray or light blue).  In this way, we could perhaps eliminate the biases that ordinarily interfere with jurors' making valid judgments about whether or not to believe witnesses.

I find this proposal intriguing.  I cannot say I have ever even thought of the possibility, and it could indeed have the salutary effects that Benforado anticipates.  However, I am deeply skeptical not only of its legality but of what, in fact, would remain of the criminal trial as we know it if we were to adopt the proposal.

In terms of legality, the Sixth Amendment right of confrontation guarantees a criminal defendant the right to be confronted, at a jury trial, by the witnesses against him.  It seems to me likely that any court addressing the question would consider the inability of the jury to see the faces of the actual witnesses who are testifying (and instead viewing computer-generated avatars) to be incompatible with the confrontation right.  If we look closely at why trials have witnesses (as opposed to a pile of affidavits), it is that we want the jury to be able to observe the demeanor of witnesses and the way in which they talk, gesture, and behave generally, and thereby make a kind of "human lie-detector" assessment of the witnesses' credibility.  Absent a view of the witness him- or herself, it is hard to know how a juror would go about assessing witness credibility.  It would seem, to say this differently, impossible to take away the witness's race, weight, and attractiveness while somehow retaining enough of his or her appearance to allow the jury to evaluate demeanor evidence.

One answer may be to suggest that assessments of demeanor evidence are overrated and myth-based (as Benforado does suggest, relying on scientific evidence) and that jurors should focus instead on inconsistencies in the witness's statements, on motives the witness might have to shade the truth, on capacity defects of the witness (an inability to remember key details about the crime) or on prior acts of dishonesty.  If so, then perhaps what we need is not avatars but instead a simple sound recording for the jurors, though there might be clues to (or indicators of) weight and of race in the sound of one's voice, so we might also need to use sound disguisers.  At that point, it would seem that we are extremely far away from the trial that the Sixth Amendment contemplates and far closer to affidavits (with Siri narrating).

At the same time as I raise these problems, I remain curious about how an avatar system might work. Perhaps we could take old trials where innocent people have been convicted and run them with avatars for mock juries and see whether that improves matters.  In either event, I am impressed with Benforado's creativity in trying to generate ideas that could help fix our profoundly broken criminal justice system.  And who knows?  Maybe avatar witnesses will prove some day to be such a great improvement on what we have that our Constitution can withstand it.

Tuesday, July 21, 2015

The EEOC Sexual Orientation Ruling

By Michael Dorf

In the wake of Obergefell v. Hodges, some commentators observed that by basing the decision chiefly on the fundamental right to marry--with principles of equality playing a supporting role--the SCOTUS missed an opportunity to establish that sexual orientation is a suspect or semi-suspect classification, and thus to strike a blow for LGBTQ equality more broadly. Had the Court instead (or in addition) squarely held that heightened scrutiny applies to discrimination based on sexual orientation, that would have implied, among other things, that LGBTQ government employees (at all levels of government) would be protected against workplace discrimination and that the government may not discriminate on the basis of sexual orientation (absent a very good reason) in any context. Last week's ruling by the EEOC that Title VII of the 1964 Civil Rights Act already bars workplace discrimination on the basis of sexual orientation fills some of the gap left open by Obergefell and in important ways goes farther.

The EEOC held that sexual orientation discrimination is sex discrimination, which is expressly covered by Title VII. Tracking the standard arguments in the academic literature, the EEOC offered two reasons. The first is formal: " 'Sexual orientation' as a concept cannot be defined or understood without reference to sex." Second, sexual orientation discrimination encompasses a violation of the core substantive norm that the prohibition against sex discrimination targets: "Sexual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes."

In its relatively short opinion, the EEOC relies on prior administrative and judicial precedents in this and other areas and makes quick work of two arguments offered against its decision. Some employers and courts argued that sexual orientation is not encompassed by sex because the Congress that enacted Title VII would not have intended or expected sex to encompass sexual orientation. But the EEOC cited and quoted Justice Scalia's 1998 opinion for a unanimous Court finding that male-on-male sexual harassment can violate Title VII's prohibition on sexual harassment (which itself is inferred from the general prohibition on sex discrimination). As he wrote there: "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

The EEOC also rejected the objection that Congress's (repeated) failure to enact legislation specifically forbidding workplace sexual orientation discrimination means that there is no such prohibition. But as the opinion notes, SCOTUS case law cautions against inferring such a lesson from congressional failure to enact new legislation.

Readers are invited to discuss among themselves the question whether the EEOC ruling is persuasive. I find it so, but that should not come as a surprise, given that it tracks views I have long held. Before closing, I want to make four further observations about the implications of the ruling:

(1) Although the EEOC ruling came in a case involving a government employer, the decision relies on Title VII's language, which applies to private employers as well (if they have 15 or more employees). In this respect, the ruling is much broader than would have been a SCOTUS ruling that the constitutional guarantee of equal protection subjects sexual orientation discrimination to heightened scrutiny. That would have (formally) only applied to government.

(2) That parenthetical "formally" in the preceding sentence is meant to indicate that the SCOTUS has tended to treat federal antidiscrimination law as largely coextensive with the constitutional guarantee of equal protection. Perhaps the leading example is the Bakke case, in which Justice Powell's controlling opinion (since endorsed by a majority of the Court) treated Title VI as coextensive with the Equal Protection Clause. To be sure, the Court does not treat every aspect of federal antidiscrimination law as reflecting constitutional meaning. For example, the Americans With Disabilities Act has been in force for a quarter of a century, but the Court still does not treat disability as a suspect or quasi-suspect classification. Nonetheless, if the Court is persuaded by the EEOC's interpretation of Title VII (especially if the Court is persuaded despite not giving the EEOC full Chevron deference), that position could exert a gravitational pull on the Court's approach to equal protection.

(3) Meanwhile, as a statutory matter, the EEOC will almost certainly apply its view that sexual orientation discrimination is sex discrimination outside the employment context to other contexts in which federal law forbids sex discrimination. That will provide protection against discrimination to LGBTQ Americans in many areas of life--but notably not in public accommodations, because the federal public accommodations law does not forbid sex discrimination. (Shocking, I know.) Accordingly, private shopowners who wish to deny service to LGBTQ Americans on the basis of sexual orientation will continue to be able to do so, absent a state or local prohibition or an amendment to the federal law by Congress

(4) Perhaps the most important medium-term consequence of the EEOC ruling, assuming it is upheld by the courts, would be to kill ENDA, the proposed Employment Non-Discrimination Act that would bar employers from discriminating on the basis of sexual orientation. It has long been a goal of LGBTQ rights groups--although last year some key groups withdrew their support when they concluded that, in the wake of the Hobby Lobby case, the exceptions for religious exercise in the bill would too seriously undermine the protections against discrimination. Of course, the EEOC ruling, as a construction of Title VII, is itself subject to religious exceptions pursuant to the same Religious Freedom Restoration Act (RFRA) that was at issue in Hobby Lobby. Although such exceptions certainly do somewhat undermine the protection now afforded by Title VII, the EEOC ruling is nonetheless an important step forward, providing the protection that would have been provided by ENDA.

Monday, July 20, 2015

The Line Between Regulatory Takings and Physical Appropriations

By Michael Dorf

My latest Verdict column deconstructs the best line in last month's decision in Horne v. Dep't of Agriculture: "Raisins are not dangerous pesticides; they are healthy snacks." The majority opinion finds a government marketing order requiring raisin growers (and "handlers," which I treat as identical for simplicity) to set aside a potentially large subset of their raisins for the government is a Taking of the "physical appropriation" variety. In an earlier blog post I criticized Justice Sotomayor's dissent as in tension with her majority opinion--released the same day--in Los Angeles v. Patel.  In the column, I juxtapose the Horne majority, written by CJ Roberts, with his dissent a few days later in Obergefell v. Hodges. Whereas the Obergefell dissent's multiple comparisons of the majority opinion in that case to Lochner v. New York seem misplaced, the implicit reweighing of government policy with respect to economic regulation in Horne is much more Lochnerian.

Here I want to make three additional points.

1) I share the apparent view of the Horne majority that the raisin marketing order is bad policy--perhaps even counterproductive. I note in my column the theory behind agricultural supply limits as price supports. But there are theoretical grounds for challenging any such measures and this particular program seems especially poorly designed. By demanding a percentage of each farmer's raisins--rather than limiting acreage under cultivation or raisins that may be sold on the market by each farmer--the program creates incentives for each individual farmer to grow as many raisins as possible, so as to maximize the number of raisins each can sell after the government takes its share. The cumulative impact of this policy would be to increase the total number of raisins grown, not to limit it.

2) But a stupid or counterproductive policy does not, ipso facto, fail the conventional rational basis test for economic regulation, so long as a court can hypothesize any set of facts under which the policy would make sense. In his partial concurrence/partial dissent, Justice Breyer urges a remand for the calculation of the difference between: a) the price that the Hornes' remaining raisins fetched after subtracting those set aside for the government; and b) the price that the Hornes' total quantity of raisins (without any set aside for the government) hypothetically would have fetched in the ostensibly glutted market that would have existed absent the marketing order. In offering this formula, Justice Breyer and the two Justices who join him indicate that it is at least possible that the marketing order worked as a price support. Moreover, under the "imaginary world" approach, we could imagine that the marketing order was actually designed to increase the supply of raisins. If it's counterproductive of its purported aim, then, by hypothesis, it is rationally related to producing the contrary aim! To be sure, there is some SCOTUS authority for the proposition that even under rational basis scrutiny a challenged law cannot be upheld as rationally furthering a goal that the government specifically disavows. In any event, my main point is not that the marketing order definitely survives rational basis scrutiny. My point is simply that to the extent that the Court was driven by disagreement with the policy of the marketing order, it ought to have applied the rational basis test.

3) The foregoing analysis and the Verdict column could be criticized on the ground that the rational basis test applies to laws challenged under substantive due process or equal protection where there is no ground for heightened scrutiny, but that Horne involves an enumerated right--the Fifth Amendment right against uncompensated Takings. I have no quarrel with the abstract principle. If the government appropriates Oliver's land in order to build a municipal sewage treatment plant, the government must pay Oliver the fair market value of the land, notwithstanding the fact that using Oliver's land for a sewage treatment plant is rationally related to a legitimate governmental purpose. And I have no difficulty with extending that principle--as the Court does in Horne--to personal property. If the government appropriates Olivia's (hitherto unknown) 1776 original copy of the Declaration of Independence to display in a public library, that's rationally related to a legitimate governmental purpose too, but again the government has to pay Olivia the fair market value of her copy of the Declaration.

I don't think that raisins are different from other personal property. The difficulty is one of categorization. Although reasonable minds can differ, to me the marketing order looks more like regulation than appropriation. Suppose that, instead of requiring growers to set aside raisins for the government's account, the government forbade them from selling more than their allotted percentage. Maybe that's a bad idea, but it would pretty clearly be a permissible price-support regulation as a matter of economic substantive due process. The wheat quota upheld against a federalism challenge in Wickard v. Filburn is one of many examples of this sort of regulation.

How might objecting raisin growers attack a percentage quota on how many raisins they could sell? They could try to characterize it as a Taking but to do so they would have to argue either that the regulation destroyed all economically viable use of their raisins (a losing argument because it covers fewer than half their raisins), goes "too far" (a nebulous standard that is very hard to meet), or is insufficiently related to the government objective (a losing argument given the precedents and the obvious connection between supply and price).

Because a percentage quota on selling the "excess" raisins would be valid under both substantive due process and the Takings Clause, it is hard to argue that it is worse for the government, instead of making growers destroy the excess raisins, to use them in ways that serve other purposes that do not undermine the price support (e.g., nourishing raisin-hungry people who can't afford to buy raisins; selling raisins in isolated markets; etc) and rebating any net proceeds to the raisin growers.

And indeed, the majority in Horne does not argue that the marketing order is worse than a direct prohibition. Instead, it relies exclusively on the logic of Loretto v. Teleprompter, which treats "physical appropriations" as categorically different from mere regulatory Takings. Whether that distinction holds up should depend on whether the government wants the private raisins for public use and is disguising a naked raisin grab as a price stabilization measure (in which case the marketing order is a Taking) or is principally aiming at price stabilization but then doesn't want to see the excess raisins go to waste. The distinction tracks Jed Rubenfeld's insightful 1993 Yale Law Journal article, Usings. To my mind, the fact that the government appoints raisin growers to make the disposition decision and rebates any proceeds to the growers shows that the marketing order is of the latter sort--a mop-up effort after the primary stabilization measure rather than a disguised raisin grab. The best evidence for the contrary view is the stupid design of the marketing order as a price support--using a percentage rather than a total numerical cap. But on balance I think that shows only stupidity, not duplicity.

That said, I would have less difficulty with the Horne opinion if it confronted this question directly, rather than simply concluding from the fact that the government formally takes title to the excess raisins that the marketing order is a Loretto-style Taking. If in future cases the Court holds the line there, then I think Horne is harmless--and maybe even beneficial, because, as I've said, I agree that the marketing order is bad policy. But it's not obvious that this will happen. In Loretto itself, the government did not take title to the small piece of real property on which the cable equipment was placed, after all. Moreover, lawyers are clever beasts. Expect representatives of business interests and wealthy property owners to work their darnedest to recast hitherto unsuccessful regulatory Takings claims as physical appropriations claims, even when the government doesn't take title to the property in question. And expect these lawyers to find a fair number of Justices who are sympathetic to this recharacterization.

Friday, July 17, 2015

The Scolds Clumsily Pretend Not to Exploit the Greek Crisis

by Neil H. Buchanan

Professor Dorf and I each recently wrote (here and here) about the crisis in Greece's economy and the German-led effort to punish the Greeks for their supposed sins.  I plan to write my next Verdict column about the insanity that has prevailed in that standoff thus far.  Today, however, I want to look at how one of the supposedly reasonable, so-called centrist anti-deficit groups in Washington has tried to exploit the Greek crisis for domestic political gain.  As we shall see, their approach to the issue exposes not just their political opportunism, but their lack of understanding of macroeconomics as well.

In a Dorf on Law post earlier this year, I discussed an analysis by one of the "deficit scold" think-tanks -- organizations that exist solely to stoke fears about the U.S. debt situation.  Referring to one such organization, I wrote:
Because this group is indistinguishable from any of the other astroturf deficit-scold groups that litter the DC landscape, I will not use its official name here.  Instead, I will simply refer to it as the GDHC, for Generic Deficit Hyperventilation Committee.
Most of these groups, and certainly the GDHC, are directly or indirectly funded by one obsessed billionaire, who has spent years and millions of dollars sowing deficit panic to justify attacks on Social Security and Medicare.  That these groups insist on ignoring reality about the U.S. fiscal situation, and in particular that they reflexively reject all good news on the subject, is a symptom of that obsession.  But I digress.
They're back!  Actually, they never went away, which is entirely the point.  These groups relentlessly bombard the Beltway press corps, as well as relevant officeholders and opinion makers, with information supposedly proving that we are all doomed unless the federal government stops spending money on Social Security, Medicare, and Medicaid.  That story, which was once at least possible to tell with a straight face, has become less and less so over the last several years, but one would not know that from following any of the interchangeable GDHC groups.

Because I am apparently a masochist, I am on the email distribution lists for most of these organizations.  Earlier this week, one of the GDHC's sent an email proudly announcing that its president had appeared on a Fox News show to discuss "Greece, China, and the Need for Presidential Candidates to Have a Comprehensive Economic Plan."  Bracing myself, I ventured into the text, the pertinent part of which read:
I think one of the lessons, of course, here, where we are struggling with a debt challenge that in no way rivals what you see in Greece, but is on a similar path in that it's unsustainable, is make changes while you can. Make changes while the economy is doing well.
Note the attempt to sound centrist.  Unlike the Republicans' talking points about the U.S. becoming Greece any day now, GDHC says that the U.S. situation in definitely, most certainly not as bad as Greece's.  Later in the email, they even point to one of their blog posts, in which they concede that the U.S. and Greece "differ" in various ways -- the U.S. has its own currency, the U.S. is much bigger, and so on.  Of course, this is an old rhetorical trick, in which one creates a connection between two unrelated situations by saying that one is not creating such a connection.  It is a variation on, "I come to bury Caesar, not to praise him."  Or, "Don't think of an elephant."

Importantly, the claim is that, although the U.S. situation "in no way rivals" what Greece faces, the GDHC must sadly inform us that we are "on a similar path."  The reason that the path is similar is that both countries' fiscal policies are supposedly unsustainable.  The problem is that the U.S. is actually not on an unsustainable path.  The Congressional Budget Office (CBO) provides periodic updates of long-term budget forecasts.  Even though CBO's commentary is always pessimistic (and very much scold-influenced), the worst that one can say about its latest 25-year forecast is that it suggests that the path of U.S. debt might (or might not) reduce long-term economic growth.  That is not a matter of unsustainability, but simply policy choices.

Looking at the possible paths of four important variables (mortality, productivity, interest rates, and Medicare/Medicaid spending), CBO forecasts debt under an "extended baseline" (supposedly showing the path of debt if relevant variables provide no surprises during the forecast period) as well as debt's path under assumptions where everything goes better than expected, and where everything goes worse than expected.  The extended baseline has debt-to-GDP going up to 107% in 2040, the better-than-baseline forecast has it staying at 76%, and the worse-than-baseline forecast has it rising to 144%.

It is not my purpose here to argue with the CBO's methodology, with which one could do much more than quibble.  My point in this post is simply that these are not numbers that are "unsustainable," and certainly not in the sense that Greece's situation is unsustainable.  In the context of debt, sustainability means that a country will reach a point where it literally (and I do mean to use that word in its correct sense) can no longer pay its debts as they come due, because the interest is bigger than the government can collect in taxes.

Greece, because of the austerity that was imposed upon it by the troika (most insistently led by Germany's representatives), reached that point during the current crisis.  And the further austerity to which the Greek government submitted this week simply means that they will need to be bailed out again, soon.  Notably, their rising debt-to-GDP ratio has been a function of falling GDP (caused by the austerity), not by rising debt.

Where is the lesson for the U.S.?  According to GDHC, the U.S. is on a path that is unsustainable.  Yet we know nothing, from CBO's analysis, about the path of U.S. debt after 2040.  It is true that, if one extends an upward-sloping line infinitely into the future, the U.S. would someday reach a point where it would be unable to finance its debt.  But if that is GDHC's definition of being on an unsustainable path, then they need to learn why some lines change direction.  In particular, the youngest Baby Boomers will be 76 years old in 2040, and the oldest Boomers will almost all be gone by then.  Suggesting that the high rates of medical cost inflation that largely drive the pessimistic story will continue indefinitely is simply absurd.  Yet without that implicit assumption, there is no way to describe the U.S. debt path as unsustainable.  (I concede that one can find forecasts that extend those lines upward, but those forecasts are little more than rank speculation, allowing a motivated analyst to bake in whatever assumptions are necessary to produce a politically useful result.)

But what of the reasonable-sounding calls to do things sooner rather than later?  If a situation is sustainable, then there is no automatic presumption that anything need be done, ever.  That means that any change now is simply a political choice.  I could certainly get behind a lot of policy options today that would reduce long-term debt, and I might even like the effects that they have as debt reducers, not just as progressive policy changes.  But if progressive tax and spending changes are not in the cards, then being told that "sooner is better than later" simply says that even regressive policy changes need to be imposed immediately, supposedly because reducing debt is a good thing in and of itself, independent of the consequences of doing so for real people.

Finally, I feel compelled to comment on the odd macroeconomic analysis that GDHC proffers to claim that its call for immediate austerity measures is strengthened by the possibility of a future recession.  They say:
The economic damage would be compounded if debt concerns were touched [off?] by policy responses to a recession. At an extreme, lawmakers may find themselves unwilling to make the changes necessary to bring debt under control and may resort to printing money to finance debt (available to the U.S. but not Greece), a move that could set off inflation.
What they are saying is that, if debt continues on its current path, and if the economy is thrown into a recession for any reason, Congress might not be willing to impose austerity to bring debt under control.  You think?  The correct Keynesian response (which GDHC often claims, with questionable sincerity, that it would support during recessionary periods) would be exactly the opposite, increasing deficits temporarily to fight the recession, and later returning to normal fiscal policy.

Yet GDHC wrings its hands, saying that a future Congress might not bleed its economy to death, and instead might print money, "a move that could set off inflation."  This is mind-bogglingly wrong.  If the Great Recession and its aftermath proved nothing else, it proved that it is possible to "print money" to stave off disaster, and to move back toward normal monetary policy after the crisis ends, without inflation.  The supposedly ruinous Fed policies that were supposed to create hyper-inflation and debase the dollar instead gave the United States a much better (OK, less bad) run since 2008 than we have seen in Europe.

At best, groups like the GDHC could be staffed by goodhearted people who genuinely think that debt is the worst thing in the world, and that they are ringing alarm bells that others choose to ignore.  It has become ever more difficult to take their nonpartisanship and fake centrism seriously, however, as they continue to find ways to ignore evidence and disguise an anti-government political agenda as responsible fiscal policy.

Thursday, July 16, 2015

Detente With Iran and the Possibility of a More Coherent Middle East Policy

by Michael Dorf

Politics will play a large role in shaping the pending debate in Congress over whether to pass a resolution rejecting the executive agreement with Iran. Even before they had an opportunity to review the agreement, hawkish and otherwise merely anti-Obama Republicans were busy denouncing it as a bad deal or even as appeasement with Obama cast as Chamberlain and Iran cast as Nazi Germany. Meanwhile, those pro-Israel Democrats who (mistakenly) think that Jewish American voters take their cue from PM Netanyahu and AIPAC are at best lukewarm, not wanting to appear soft on Iran but also not wanting to undercut a Democratic president.

As a substantive matter, the coming debate will likely focus on nitty-gritty issues, such as whether the inspections regime will be effective. Those issues are important and, subject matter aside, I am sympathetic to the notion that Congress should play a role in approving or disapproving major international agreements. But I want to suggest here that the real issues have little to do with the precise details of the agreement. Instead, the real promise of the nuclear deal is the hope it may offer for a more coherent U.S. policy regarding the Middle East and ultimately, towards peace.

Since the Iranian revolution in 1979, U.S. foreign policy regarding Iran has been at best schizoid. On the one hand, Iran is viewed as an implacable foe for its admittedly awful conduct: hostage-taking; sponsorship of Hezbollah in Lebanon, Houthis in Yemen, and Hamas (despite their Sunni roots) in Palestine and Israel; support for the Assad regime in Syria; and domestic persecution of its own people based on religion, sex, sexual orientation, and political viewpoint. Meanwhile, however, the U.S. and Iran have found themselves as awkward allies in fighting the common enemy of Sunni extremists, including: the Taliban in Afghanistan; al Q'aeda; and of late ISIS. In addition, various U.S. interventions--especially the 2003 invasion of Iraq--have had the foreseeable (and foreseen) consequence of strengthening Iran's influence in the region.

Various commentators have noted the delicacy of U.S. air power being used against ISIS in parallel but not exactly in coordination with Syrian, Hezbollah, and other Iranian-backed forces on the ground. Yet this is nothing new. For all of its faults--and there are many--the Iranian regime is generally rational. In many respects it is more responsive to domestic public opinion than are the Sunni monarchies and military dictatorships that the U.S. regards as allies (except when we don't). It's true that elected moderates in Iran do not hold ultimate power in what is ultimately a theocracy. But the elected officials do exercise some power and they generally push for policies that are consistent with U.S. interests. Accordingly, coordination with the Iranians is sometimes rightly seen as the lesser evil.

My hope for the nuclear agreement is that it opens up a new possibility for American foreign policy in the Middle East. The tendency of Republican hawks to view the region and the world in Manichean terms will not go away in a presidential election season, although past Republican presidents (including both Bushes) have sometimes been more pragmatic. Democrats tend to prefer diplomacy to force but even they have tended to view Middle Eastern politics on a kind of affinity scale that goes roughly like this:

Israel: BFF
Saudi Arabia, Gulf monarchies, Egypt, Jordan: Friends
Palestinian Authority/PLO: Frenemy
Iran and Iranian-backed regimes and groups (other than Iraq): Enemy
al Q'aeda, ISIS, and other Sunni extremists: The Devil

Under this approach, in any conflict, U.S. policy is to support the side that is higher up on the affinity scale. Thus, we oppose ISIS in Iraq and Syria even though doing so means coordinating with Iran, but we support the Saudi-backed Sunni forces against the Iranian-backed Houthis in Yemen, at least for now. If al Q'aeda or ISIS fills the opening created by the chaos, then we might start bombing them instead.

There is a certain rationality to this approach, I suppose, but it strikes me as myopic. In the short term, force used against the side we dislike more in any particular local conflict may degrade that side, but in the long run, the policy tends to widen the broader conflicts and cause immense suffering.

By signing the nuclear deal with Iran even over the objections of bff Israel and some of the Sunni friends, the U.S. could be signaling a new approach, in which the goal is not simply to support whichever side we like better or dislike less but to support negotiated resolution of conflicts. To be sure, that has long been a goal of U.S. foreign policy in the Middle East, both with respect to the Israel/Palestine conflict and the Sunni/Shia conflict, but our direct and indirect miltary actions have tended to undermine the efficacy of negotiations.

Of course it remains possible that Netanyahu and Obama's U.S. critics are right--that Iran will use the resources generated by the lifting of sanctions to continue its harmful policies and find ways to circumvent the nuclear restrictions. But many of the details of the agreement appear designed to make the latter difficult and, as so often happens in negotiations, Secretaries Kerry and Zarif have forged a working relationship that opens the possibility of addressing other issues.