Friday, October 30, 2015

Can Violence Be Irrelevant?

by Sherry F. Colb

In my Verdict column for this week, I discuss an issue that arises in a book, co-authored by me and Michael C. Dorf, entitled Beating Hearts:  Abortion and Animal Rights.  The issue is how the pro-life and pro-animal rights movements ought to handle the violence dilemma, that is, the question when--if ever--violence is morally permissible in defense of one's cause.  My column concludes that violence is impermissible both for pro-life and animal-rights activists, because there are peaceful alternative means of rescuing fetuses or animals and of educating people and effectively communicating the message that fetuses/animals are entitled to be free of human violence, without having to resort to violent means.  In this post, I want to discuss an objection to this line of argument that emerged when Professor Dorf and I were presenting our work at a colloquium held at Queen's University in Kingston, Ontario.

Just to make the issue as clean and uncomplicated as possible, we asked our audience to consider two groups of people (or animals or fetuses) in need of rescue.  Both groups contain the same number of potential victims (10), and we know nothing about any one victim that would distinguish him or her from the rest (in terms of worthiness or other qualities that might break a tie in a triage situation). There is, however, one difference between the two hypothetical rescues that we would seek to accomplish.  In one case, rescuing the ten people would require us to kill a malevolent guard who is blocking access to the people.  In the other case, by contrast, rescuing the ten people would require no killing at all, perhaps because their malevolent captor was sufficiently confident in having hidden his victims well that he did not see any need for guarding them.  Assume that you have time for only one rescue of ten people, so you cannot save all twenty.  What should you do?

We believed, going into the colloquium--and in writing the chapter about violence--that the answer is straightforward.  When faced with this choice between killing a guard and rescuing ten innocents versus killing no one and rescuing ten innocents, the right thing to do is to rescue the ten innocents whose rescue requires no violence at all.  Quite a few audience members at Queen's University disagreed, however, and accused us of using a consequentialist metric to determine that it would be better to save ten without killing anyone than to save a different ten while killing someone.  On the assumption that it would ordinarily be justified, in isolation, to kill a guard who is holding ten innocents captive, our interlocutors suggested that it cannot suddenly become wrong to perform that same killing just because there is now another group of ten needing rescue, and this other group's rescue requires no killing.  In other words, either it is right to kill the guard to save the ten people he guards or it is wrong to do so, but its rightness or wrongness cannot turn, these audience members claimed, on whether some other group of people needs to be rescued as well, with different contingencies in effect.

Our view, however, is that the universe of options that one has available will always affect the morality of choosing to act in one way rather than in another.  We further questioned some of our audience, asking whether they would say the same thing if we believed that a group of ten people could be rescued only by killing their guard but then we learned information that enabled us to rescue those ten people without killing anyone.  Would you still say, we asked, that killing the guard would remain justified, in the absence of necessity (given the nonviolent alternative means of rescue)?  No, they replied.

If the very same group of 10 people could be rescued peacefully or violently, then the violent rescue is unnecessary and accordingly an immoral act.  It is immoral, as we understand it, because even though we would be killing the person in order to rescue 10 people--and the one person guarding them is culpable and therefore arguably entitled to less concern than the innocent 10--the availability to us of a peaceful option means that killing the guard is an unnecessary act of violence, and committing an unnecessary act of violence is wrong (at least on these facts, where we are not killing the guard as a means of retributive capital punishment).

Our audience members continued to reject our actual hypothetical example, however, claiming that there is all the difference in the world between our original example (with two groups of 10, one of whom may be rescued only with violence, the other peaceably) and the  example with the one group of 10 (who may be rescued either violently or peaceably).  Why the difference?  Because in the original example, the 10 people in the first group (guarded) are not interchangeable with the 10 people in the second group (unguarded), each of the people is as entitled to rescue as the others, and the choice to rescue one group of 10 rather than the other is accordingly arbitrary and should probably be done through a coin flip.  To say it is better to save the 10 whom we can save without violence, then--according to some of our audience members--is to treat people, or animals, or fetuses, as though they are just containers of utility that may permissibly be exchanged for one another while other orthogonal factors (such as the need for violence as part of the rescue) are attended to.

After talking about this issue back and forth for several hours, with professors and students alike, we came to the conclusion that perhaps a purely deontological view has no place for taking into account the difference between killing a guard and not killing a guard, if the underlying act of rescue is the right thing to do.  Perhaps this is in part because ideally, two rescuers would come along, one with a weapon and one without, and the two would successfully rescue all 20 of the people in need of rescue in the least intrusive manner possible (one group requiring violence, the other not).  But of course, in our actual hypothetical scenario, triage is unavoidable, and only 10 people can be rescued. And as people who consider ourselves at least deontologist hybrids, we regard as troubling the view that morality cannot prefer the nonviolent rescue option.  After all, the death of the guard is not merely a "consequence" of the violent rescue; it is the means by which we effectuate a rescue, when we could be effectuating a different rescue without deploying violence at all.

Trolley problems are legion in moral philosophy, so I shall invent one of my own to try to capture the moral dilemma we have been considering.  You are hurtling down a train track and you find that there are 10 people tied to the tracks whom you will run over if you do not flip the switch.  You can flip the switch to the right or to the left.  If you flip it to the right, you will hit the person who tied up the 10 people and you will kill him; if you flip it to the left, you will hit no one.  If you flip nothing, you will crash and kill everyone on your train as well as all of the people tied to the tracks.  The correct thing to do seems clear here: you flip the switch to the left, save everyone, and kill no one.

Now you find yourself in charge of two trains hurtling down two similar train tracks.  On one set of tracks, you face the 10 innocents tied up, the one evildoer who tied up the 10, and the clear track.  On another set of tracks, you face another 10 innocents tied up, the one evildoer who tied up the 10, but no other track.  You get to choose which train to control in this scenario, though, so you can save 10 but must also abandon 10 either way.  We believe that the right thing to do is to choose to engage with the train that has the option of going down a clear path and killing no one, even though this means that you abandon the other 10 innocents.  Remember that you necessarily will abandon 10, and the only question is whether you will also commit violence.  Under a "first do no violence" ethos, I would propose that the right choice is the choice that requires no violence of you at all, the one that has no "moral regret" attached (which attaches whenever hurting someone is necessary to accomplishing even a laudable mission).  If that position is counter-deontological, then -- to quote my co-author -- so much the worse for deontology (which ought, in my view, to be assessing the cost of moral regret in choosing between different options).  We're both very curious to see people's moral intuitions in response to these scenarios (including the one with which all of this started:  the choice between advocating for innocent victims--whether animals or fetuses--violently or nonviolently, when one can choose either path).

Thursday, October 29, 2015

John Boehner as Miss Teen South Carolina 2007

by Neil H. Buchanan

There are a few procedural steps remaining, but it appears that the secret deal between departing Speaker John Boehner and the White House will allow the country to avoid a default as well as a government shutdown, and that this budgetary peace will last into the next presidential administration.  I will publish a Verdict column discussing the upsides and significant downside of that deal early next week, but for now, I can at least acknowledge that the answer to the titular question in my October 2 Dorf on Law post, "Thanks for Nothing, John Boehner!  Will He Leave Behind a Budgetary Mess?" is, "Mostly not."

I am happy to have been proved wrong.  It is true that the bar is set incredibly low when a Speaker of the House can be called a statesman simply for allowing the government to stay open and to pay its bills.  It is also true that Boehner himself is no moderate, and that he gleefully participated in the takeover of the House by radicals who do not hesitate to threaten economic chaos.  Still, one cannot help but think that this is one of those tiger-by-the-tail situations, with Boehner still wondering what the heck happened.

Rather than discuss the details of the budget deal, however, I want to return here to a topic that has long irked me.  Why do so many people who supposedly know better say so many stupid things about policy issues?  I will return to Boehner below, but it is important first to discuss one possible explanation for this phenomenon: laziness.  More times than I can count, I have seen a member of the press or a politician who wants to sound serious and well-informed say something about the deficit, or Social Security, or something like that.

Last month, I wrote a Dorf on Law post in which I discussed "the gravitational pull of the conventional nonsense," using as a particularly pointed example a 2006 NYT op-ed in which Adam Clymer indirectly criticized Senator Barack Obama for wanting to be president rather than stay in the Senate and "someday save Social Security."  That Social Security does not need to be saved never crossed Clymer's mind, because everyone else talks about how it needs to be saved.  Why actually learn about things when it is safer simply to parrot the conventional nonsense?

The most recent example of such laziness was a Times news analysis column (not an op-ed) this week discussing the new budget deal, in which the reporter talked about Boehner's 2011 effort "to right the country’s listing long-term fiscal ship."  Well, the ship in 2011 was not listing (even as a long-term matter), because the deficits at that time were clearly caused by the Great Recession.  And the long-term fiscal ship is not listing now, based on even the Republican-led Congressional Budget Office's forecasts.  (Both Democrats and Republicans who run the CBO consistently accompany their estimates with dire commentary, but that is merely more of the conventional nonsense.)  Yet the NYT reporter could not be bothered to think about any of that, and even though the description was utterly gratuitous -- seriously, there was no reason at all to include that claim in the article -- it was simply another example of conventional nonsense.

Of course, national politicians make such unsupportable claims all the time in other areas as well.  For readers of this blog, the most obvious example would be attacks on "judicial activism" as code for "decisions that I don't like."  Also, saying that "the science isn't in" on climate change is a useful generic way to attack something without resorting to facts.

What is more interesting than conventional nonsense, however, is what I think of as "safe nonsensical claims" that politicians make about various issues.  Because of my interests in economic policy, I notice such claims most often in that area.  What is a safe nonsensical claim, and how does that differ from conventional nonsense?  Conventional nonsense tends to be general, such as the claims that Social Security is broken or that the national debt is ruining us.  Safe nonsensical claims have more of an air of specificity to them.  As I noted in a Dorf on Law post earlier this month, some presidential candidates seem to have developed what amounts to "a nervous tic, with Republicans blurting out, 'We owe 18 trillion dollars!' almost at random."

Sure enough, during last night's Republican faux-debate, future former presidential candidate Chris Christie shouted: "We have $19 trillion in debt, we have people out of work, we have ISIS and Al Qaeda attacking us, and we’re talking about fantasy football?"  The national debt is, as of two days ago, actually $13.03 trillion.  But that is only true if one cares about the meaning of debt, which (except when Republicans are discussing U.S. fiscal policy) means money that Party A owes to Party B.  For those who care about meaningless numbers, the government's Gross Debt is still $18.15 trillion.  But because the gross debt will (and should) at some point pass the $19 trillion mark, this is a safe nonsensical claim.

Similarly, the puzzlingly persistent presidential candidate Bobby Jindal, at last night's "kids' table" panel, went for one of his party's favorite safe nonsensical claims.  According to a news article reporting on the event (which, were it not for beat reporters and candidates' family members, would otherwise have been the proverbial tree falling in the forest), Jindal "repeatedly pressed on his fiscal policies in Louisiana. The two-term governor defended his record, which he said had cut 30,000 'state bureaucrats.'  'That’s exactly what we need to do in D.C.,' he said. Otherwise, 'we will be the next Greece.'"

Interestingly, invoking Greece is showing some staying power.  When the City of Detroit's bankruptcy troubles began, Republicans like Mitch McConnell tried to turn "Detroit!" into their domestic equivalent of "Greece!"  This had the advantage, from the Republicans' standpoint, of associating the national debt with a large city that is associated in the public's mind with labor unions, African-Americans, and violent crime.  Even so, it has been some time since I have seen reports of Republicans using Detroit in their incantations of fiscal doom.  Greece endures.

To a certain degree, however, this discussion is really about nothing more than the familiar concept of talking points.  Republicans are renowned for staying on message, and the people who decide what those talking points will be must necessarily make adjustments as, for example, they discover that "Detroit!" no longer has the desired impact.  Some politicians, however, have a unique talent for inventing nonsense of a special kind, somehow combining conventional nonsense with safe nonsensical claims to create a fresh brew that is its own brand of nonsense.

John Boehner was one of those gifted politicians, and not just as a matter of rhetoric.  The so-called Boehner Rule -- an absurd requirement that "every dollar increase in the debt ceiling requires $2 of spending reduction" -- was almost the perfect distillation of utter nonsense.  It invoked the right bogeymen, and it seemed to have some specificity to it, but if one tried to understand where it came from, or where it would lead, madness would follow.

Relatedly, Boehner has been able not just to invoke the correct talking points of the moment, and to make up pure nonsense on policy, but he is also able to leave people scratching their heads by tossing out irrelevant or outdated talking points that have only the purpose of confusing the issue.  The best recent example of this came at a press conference this week in which Boehner was trying to justify the budget deal, in response to attacks from the right fringe of his party.  He said that the alternative to the deal was a clean debt ceiling hike that would not "protect our troops."

How perfect is that?!  With nothing to say, and nothing connecting the issue at hand to the words that he was about to utter, Boehner understood that he could simply speak words that almost sounded relevant, and that that was all he needed to do.

As I thought about that performance, I realized that Boehner had turned clueless flailing into an art form.  I found myself remembering the immortal words of Caitlin Upton at the Miss Teen USA pageant in 2007, whose answer to the question, "Recent polls have shown a fifth of Americans can't locate the U.S. on a world map. Why do you think this is?" went viral on YouTube:
"I personally believe that U.S. Americans are unable to do so because, uh, some, uh, people out there in our nation don't have maps and, uh, I believe that our education like such as in South Africa and, uh, the Iraq, everywhere like such as, and, I believe that they should, our education over here in the U.S. should help the U.S., uh, or, uh, should help South Africa and should help the Iraq and the Asian countries, so we will be able to build up our future [for our children]."
The difference between the former Miss Teen South Carolina and the former Speaker of the House is that Ms Upton has since mocked herself and shown good humor in dealing with her inadvertent infamy.  But the almost random assemblage of words that Upton spoke eight years ago provided the template for Boehner's style.  Grab words out of thin air, whether or not they are relevant to the issue under discussion, and run out the clock.  Boehner knew that he could get away with it, and even succeed because of it.  His ultimate downfall had nothing to do with his eager willingness to speak nonsense.

Wednesday, October 28, 2015

Canonical Case Skepticism and the Cartoon Version of Nonoriginalism

by Michael Dorf

One week ago, I posted a critique of a certain move that is sometimes made to defend originalism and other constitutional theories that produce the wrong result in Brown v. Board of Education. I argued that it is not sufficient that these theories allow for stare decisis because the "Brown test" is about what a theory produces rather than what it preserves. Prof. Larry Solum then offered some thoughts and posed some questions for me, which I answered on Monday. That same day, Prof. Solum added some additional thoughts based mostly on my first post on this subject. Meanwhile, Prof. Paul Horwitz raised questions about the canonical status of Brown and canonical status more broadly. Here I'll respond first to Horwitz and then pivot to Solum and a couple of others.

Although Horwitz agrees with just about everyone that Brown is rightly decided, he worries about the notion that it--or any case--is sacrosanct. His concern is that a practice that treats any case as sacrosanct forecloses radical alternatives. Voicing themes that sound partly in freedom of thought and expression, he writes that although he is happy to teach his students
something about what polite society demands of them, I don't want to preclude their rejection of polite society, or their individual interests in pushing the boundaries of what constitutes a polite society. Although overwhelmingly politically liberal, the legal academy is also highly conservative and anti-radical.  . . . I worry that [our] discussions are too much about making sure that the academy makes enough room for doctrinaire conservatives, or doctrinaire conservatives and doctrinaire libertarians, alongside doctrinaire liberals, and not enough about really widening the scope of our discussions. In the legal academy in particular, I worry that we don't make enough room for, let alone positively encourage, people whose views or approaches or priors are more genuinely radical. I wonder what conversations and possibilities we miss as a result. 
I agree wholeheartedly. Indeed, reading Horwitz I have come to regret that in my post last week I equated the notion of Brown being sacrosanct with what Steve Sachs describes as the possiblility that Brown is right "because Brown." That sounds like the rightness of Brown is stipulative, a given that cannot be challenged. I agree with Horwitz that we should not have such stipulations, such unchallengeable results. The fact that many people start with the settled conviction that Brown is right is not a sufficient reason for ending there.

Indeed, in my work on animal rights, I aim to unsettle settled convictions. Most people hold as settled convictions all sorts of propositions regarding non-human animals that I believe are simply false: Humans need animal-derived foods to live healthy, fulfilled lives; non-human animals lack the relevant capacities for moral consideration; rights necessarily rest on reciprocity; etc.  In arguing that these and other beliefs--no matter how strongly held--are false, I take for granted that a settled conviction can be rejected.

The same is true regarding settled convictions about sacrosanct cases like Brown. In my constitutional law class last week, I challenged my students' convictions about Brown with the argument of W. E. B. Du Bois in Does the Negro Need Separate Schools?.  If integration means that Black schoolchildren will learn from racist white teachers, is that really a step up? And--as we discuss in connection with Brown's legacy when studying the Parents Involved case--if we can't agree on what Brown means for our current circumstances, does it really matter that we all think that Brown was rightly decided?

So yes, by all means, do not end with the proposition that Brown is sacrosanct simply because you started there. If Brown is sacrosanct, that should be because its rightness remains a settled conviction even after it has been rigorously scrutinized. Not "because Brown" but because . . . well what, exactly?

I'll return to that question in a moment but first I want to make one point in response to Solum's Monday post. Recognizing that this barely scratches the surface of what he says, I'll leave fuller responses for others because I take Solum at his word that he is merely using my post as a point of departure for a broader discussion with a great many people within and outside of the originalist camp.

In my original post I stated that by contemporary standards even Ronald Dworkin was a semantic originalist. I had in mind such statements as the following (from page 10 of Dworkin's book, Freedom's Law): "We are governed by what our lawmakers said--by the principles they laid down--not by any information we might have about how they themselves would have interpreted those principles or applied them in concrete cases." Throughout Freedom's Law and other works, Dworkin distinguished between semantic intentions--which he thought binding--and other intentions--which he thought largely irrelevant to constitutional interpretation. For example, he repeats the point on page 118 in his response to Justice Scalia's lead essay in A Matter of Interpretation. Dworkin says there that he and Scalia agree on the difference between semantic intentions (they count) and other intentions (they don't), but then in the rest of his chapter Dworkin goes on to chide Scalia for relying on evidence based on those other intentions and departing from semantic originalism.

In his Monday post, Solum says that contemporaneous practices can shed light on original public meaning, not just on expected applications. I agree with the general point, but I also agree with Dworkin that there are instances of Scalia and other Justices and judges using examples of practices contemporaneous with a provision's adoption in ways that seem only to bear on expected applications rather than original public meaning, even as they profess original public meaning in their academic writings.

Solum also says Dworkin was not a semantic originalist because Dworkin would have allowed that in some circumstances precedent and practice may supersede text, and that idea is inconsistent with what Solum regards as one of the two fundamental commitments of originalism: the so-called Constraint Principle. I'm less sure that Dworkin's views fell outside of originalism than Solum is but, as Solum says, we can all be working with different definitions of originalism (or anything else). More to the present point, I don't think Dworkin's acceptance of precedent and practice as potentially overriding text are especially relevant to a discussion of Brown's sacrosanctity because, obviously, at the time it was decided, Brown could not have been based on precedent (Plessy was the most relevant one) or practice. Dworkin thought Brown was right because it was the best understanding of the original semantic meaning of equal protection, not despite the (non)fact that it contradicted that meaning.

Why did Dworkin think that? Why do I agree? Now we come to the question I temporarily forestalled: In virtue of what is Brown sacrosanct?

The answer, for me at least, is the answer that Charles Black gave in The Lawfulness of the Segregation Decisions:
If a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated "equally," I think we ought to exercise one of the sovereign prerogatives of philosophers-that of laughter. The only question remaining (after we get our laughter under control) is whether the segregation system answers to this description. Here I must confess to a tendency to start laughing all over again.  
So that's it. Brown is correct because Jim Crow was inconsistent with any plausible conception of "equal protection of the laws," regardless of what anyone might have thought in 1868. The reason Brown is sacrosanct is that any interpretive theory of a Constitution that contains an equal protection clause that doesn't produce Brown is immoral.

Piggybacking on a post by Asher Steinberg, Prof. Michael Ramsey asks whether I would think that Brown should come out as it did even if the Fourteenth Amendment had never been ratified. It's hard to know what I would think about that, because it would suppose a whole different history of the last century and a half, not just a single counterfactual at a particular time, but I can answer a better question that gets at the same thing: Is Bolling v. Sharpe correctly decided? After all, with respect to the federal government, the equal protection clause was never ratified.

I think Bolling was rightly decided but I don't think it is sacrosanct in the way that I think Brown is. Put differently, if a constitutional theory produced Brown but not Bolling, I don't think that theory would be out of bounds as monstrous in the way that I think that a theory that doesn't produce Brown--given the Constitution we have--is monstrous. Someone could plausibly say that although it is immoral that the Constitution imposes no equal protection constraint on the federal government, that is nonetheless the law. (Note that this would be complicated by language in Korematsu, which says that there is a kind of racial equality norm applicable to the federal government before Bolling, but I'm imagining that this person would have rejected that language too.)

Perhaps it will surprise Ramsey, Steinberg, or some other originalists that I think Bolling is right but not sacrosanct. If so, let me suggest that their surprise arises only because they entertain cartoonish ideas about what it means to reject originalism. Perhaps they imagine that we nonoriginalists think the Constitution mandates whatever the progressive wing of the Democratic Party favors as a matter of policy at any particular moment. That's a fantasy, however. Serious participants in constitutional theory who consider themselves either nonoriginalist or who can accept those versions of semantic originalism that allow for considerable value evolution at the level of construction or otherwise are not, ipso facto, natural lawyers all the way down. We recognize that there is space between the ideal Constitution we might want and the actual Constitution we have.


Postscript 1: Ramsey accuses me of thinking that originalism must mean old-school expectations originalism. ("Dorf seems still to be operating under an old-style 'original intent' originalism . . . .") Yet both of my prior posts in this thread, as well as just about everything I've written on the subject in the last 25 years (including my 2012 piece in the Harvard Law Review) carefully distinguish semantic originalism (and its variants) from expectations originalism. I honestly don't understand how Ramsey could have read either of my prior posts and come away thinking that I have been hibernating since the 1980s and have only now just awoken to take on Raoul Berger and Ed Meese, blissfully unaware of the changes in originalist thought since they propounded Originalism 1.0.

Postscript 2: As Prof. Jim Fleming has noted, originalism was originally conceived as an ideological program on the right, an "ism."  It still functions largely that way in the courts and in public debate. For that reason, more intellectually defensible versions of originalism have the effect of working as a kind of bait-and-switch that gives cover to the conservative judges and politicians who invoke "originalism" generically to say things like there can't be a constitutional right to same-sex marriage because nobody thought there was such a right in 1868. Solum (understandably) misunderstood me to be accusing semantic originalists of deception by participating in the bait-and-switch, but all I meant was that the old-style originalist judges and public officials who seize on the respectability given all originalism by the greater coherence of semantic originalism are acting in a way that, from the perspective of the average citizen, looks like a bait and switch. I did not mean to accuse any of the academic proponents of semantic originalism of bad faith.

Tuesday, October 27, 2015

Those Fragile, Resilient Financial Markets

by Neil H. Buchanan

As I write this post, the latest news is that there have been secret negotiations between the White House and congressional Republicans that might simultaneously avert a November 3 debt ceiling-related default while also preventing a government shutdown on December 12.  All of this could break down, of course.  [Update: As of 9am Tuesday, 10/27, the deal is reported to be moving forward.]  No matter what happens, Professor Dorf and I will surely weigh in as the story develops.  Here, I want to offer some musings on an issue that is related to the debt ceiling, but that is interesting no matter what the outcome of the current politically manufactured crisis.

In one of the few interviews that I have given recently about the debt ceiling -- where the paucity of interviews is, as I noted in my post last Thursday, caused by an eerie lack of interest by the press in the debt ceiling, even as potential catastrophe looms -- the reporter asked a series of perceptive questions about how financial markets would respond to a full-on debt ceiling-related default.  Alternatively, he also wanted to know how I thought the financial markets would react if President Obama were to agree with the Buchanan-Dorf analysis and issue bonds in excess of the debt ceiling.  For awhile, it appeared that my answers to those two lines of inquiry betrayed an underlying contradiction in the way I think about financial markets.  Seeing why there might have been a contradiction, and then seeing why that contradiction is illusory, might be usefully clarifying.

The first question is what would happen if the government were to default on its obligations, if both sides were to refuse to blink in advance of November 3.  My answer would be familiar to most readers of this blog: the markets would be a bit more upset if the government failed to pay interest on Treasury securities, but defaulting on any government obligation would be a huge deal.  No one knows how bad the damage might be, but it would be very bad, because this is something that has never happened.  Short answer: The financial markets are fragile, and they might break if the government were ever to be untrue to its promisees.

The second question is what would happen if the government, in order to avoid a default on November 3, were to issue "illegal bonds" --  what Professor Dorf and I called "presidential bonds" in our first law review article on this topic, to make clear that the bonds would represent debt that had not have been authorized by Congress -- in advance of the drop-dead date.  My answer was that the financial markets would be upset, but the reason for their being upset would be more political than economic.  A constitutional crisis is always bad for markets, and surely there would be disruption.  But I then argued, again echoing points made in the various Buchanan-Dorf writings and in my book, that the financial markets are very good at dealing with and putting a price on risk.  If the president were to begin to issue illegal bonds, that would be a reason to add a default premium to the returns that Treasuries normally pay (which would be meaningful, because Treasuries have always been thought to be free of default risk), but there is no reason to think that this would be any different from pricing any other risky asset.  A market that can price junk bonds can surely price presidential bonds.  Short answer: The financial markets are resilient, and they can stand up to what the political world throws at them.

As my discussion with the reporter continued, I noted that the pricing of the presidential bonds would become quite interesting, because there would be no way to know which new bonds are presidential bonds and which are fully legitimate bonds.  Why?  On any given day, old Treasuries are maturing, and it is fully legal to roll those over by issuing new Treasuries even when the government is against the debt ceiling, because doing so does not increase the total amount of debt in existence and thus does not exceed the debt ceiling.  So, if there are $100 billion in maturing Treasuries on a given day, and there is also a need for $50 billion in new borrowing to cover the difference between obligations coming due and tax revenues rolling in, the Treasury would float $150 billion in new securities.  Even if one wanted to put an "illegal" stamp on one-third of them, how would one decide which were the good ones and which were the bad ones?  (I cannot find the link, but I am fairly certain that Professor Ted Seto of Loyola-LA is the first person to have described this peculiarity.)  I concluded that those clever financial markets would then paradoxically view this as good news, because if it is impossible ex post or ex ante to separate the good from the bad, that would increase the likelihood that Congress would feel obligated to validate all of it, after the crisis ended.  Resilience!

The reporter then pointed out that, earlier in his career, he had reported from countries like Russia, Argentina, and similar places that have defaulted on their sovereign debts at various times in the recent past.  The amazing thing is that, after such short-term crises, international lenders turn out to have very short memories, and they come right back to those same countries carrying piles of cash to lend.  This reminded me of a lecture that I delivered in Vienna in 2013, where a discussant pointed out that Austria has defaulted on its debt six times since WWII, yet the world kept turning.

My answer to that discussant, in turn, holds the key to figuring out the contours of the fragility/resilience tension in the arguments above.  The fact is that some defaults are truly minor events, where the people who are directly affected are of course unhappy, but the rest of the world barely notices.  On the other hand, some of the other debt crises, such as Argentina's, can be market-shaking events with very real consequences not just for the citizens of the affected countries, but for investors (including pension funds in the U.S. whose clients are middle-class retirees).  As bad as they are, however, these crises have never (so far) caused a global meltdown.

I still think that one of the best responses that I have heard to that question in Vienna was offered by one of my then-RA's, which I reported in the blog post linked above: "Well, isn't it interesting that your country defaulted without destroying the world economy.  Good for you!  Your country is just adorable."

What makes the possibility of a U.S. default on its obligations so scary, then, is that it is not just a default, but a U.S. default.  Global financial markets are uniquely dependent on U.S. Treasuries to grease the skids of commerce, so anything that undermines what amounts to the lynch-pin of global finance is a much bigger deal than other types of defaults.  As Professor Dorf and I have argued all along, the further in advance the president were to announce a plan to view the debt ceiling as non-binding, the easier it would be for markets to treat the ultimate issuance of presidential bonds as a non-event.  (Happily, it would also reduce the likelihood of ever needing to issue the bonds at all, because the hostage-takers would have no negotiating power.)

That is not, of course, to say that there would be no negative consequences at all in such a situation.  That is why it is so important for Congress to repeal or effectively neuter the debt ceiling, or at least to increase it in a timely way as needed.  But the difference between the two possible ways to deal with a crisis -- defaulting, or issuing unauthorized bonds in order not to default -- ultimately hangs on what the financial markets do well versus what they do poorly.  They price risk well, but they are very poorly equipped to deal with the huge unknown of a U.S. government default.

Of course, the craziest members of Congress have their own view of the resilience of financial markets.  As I noted last year, one of those guys has actually argued that the global financial markets would rally in response to a default, because it would prove that Congress had gotten serious about reducing U.S. debt.  Right.  First, there is no evidence that markets are worried about U.S. debt at all, with 10-year Treasuries now yielding just a touch more than 2% (effectively borrowing for free in an economy where the Fed's inflation target is 2%), and even 30-year Treasuries are paying less than 3%.  Second, even if the markets did think that the U.S. debt situation would get out of hand sometime in the next few decades, the markets would want to see evidence of changes in taxes (up) and spending (down).  Defaulting on government obligations is not evidence that sanity has at long last returned to fiscal decision making.

I cannot believe that I felt the need to write that last sentence.  But here we are.

Monday, October 26, 2015

Further Thoughts on Originalism and Stare Decisis--In Response to Prof. Solum

by Michael Dorf

In my Friday post, I argued that there is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.

In a response to my post, Prof. Larry Solum posted a terrific set of comments, questions, and requests for clarification on Legal Theory Blog. I've given his questions some thought and will answer them here. Rather than restate the questions and the reasons Prof. Solum asks, I'll rely on readers to go to his post for context. After answering Prof. Solum's questions, I'll add a comment about what I regard as the relative modesty of the point I was trying to make.

Question One: Is the test that your propose a counterfactual (or hypothetical) test (would originalism counterfactually have produced Brown) or is your test about the actual present and future (will originalism produce Brown today)?

Answer: I meant to be asking a counterfactual (or hypothetical) question, namely this one: Suppose an originalist were on the Supreme Court in 1954 and that this originalist, applying originalism as he understood it, concluded that de jure segregation in public schools is constitutional. If so, then originalism fails the test of Brown (subject to a caveat about what I mean by a few other things that I address in the next answer). 

Question Two: What does "must actually produce Brown" mean?  Does it mean that the theory must guarantee Brown?  Or is something else sufficient?  And if so, what?

Answer: I was rather sloppy in my language and I now want to clarify or perhaps amend my earlier position to make clear that I should have said something weaker, like this: If a practitioner of some brand of originalism (or for that matter any other approach) cannot plausibly conclude that Brown is right, then that brand of originalism (or the other approach) fails the Brown test. To pass the Brown test, a theory need not guarantee the outcome in Brown. So, instead of "must produce" I ought to have said something more like "would likely produce" or at least "would not stand as a very serious obstacle to producing" Brown.  As Professor Solum correctly notes, "many of the major alternatives to originalism do not as a matter of necessity" produce Brown.

I would also add that in any historical period, various assumptions of the age will necessarily interact with any particular methodology. Let me illustrate with an example. Suppose that at some point in the future Obergefell comes to be regarded as sacrosanct in the same way that the Brown test assumes that Brown now is. At that point, the Obergefell test will be whether the methodology would likely produce Obergefell in 2015. I don't think that there's any constitutional theory that would likely produce Obergefell in, say, 1915 or 1965, except perhaps in the hands of a quite unusual judge. Accordingly, it would be unreasonably demanding of any constitutional theory that it would likely produce Obergefell in an earlier era.

Question Three: Given the answer to Question Two, what alternative interpretive methodologies do meet your test?  (And given the limits of the blog post, one example that Professor Dorf is willing to defend would suffice.)

Answer: I  think multiple approaches satisfy the Brown test.

For example, Ely's representation-reinforcing theory of judicial review is designed almost for the very purpose of producing Brown but not Roe.

Prof. Solum suggests that pluralism of the sort championed by Philip Bobbitt (and Dick Fallon and others) could produce not-Brown, and I think that's right, but I think that in 1954 it would have been more likely to produce Brown. How do I know? Because the actual methodology of the unanimous Court in Brown is pluralist. After ordering reargument on the history of the adoption of the Fourteenth Amendment, the Court concluded that the evidence "cast some light" on the problem but was ultimately "inconclusive." The ultimate decision was then based on an extension of the graduate school precedents and frankly moral reasoning.

I also think that at least some versions of semantic originalism satisfy the Brown test. Indeed, despite what I just said, one could read the Brown opinion as presciently adopting semantic originalism: with the original sources inconclusive, the Court turns to construction. And for many semantic originalists (Ronald Dworkin was a good example) the meaning of the equal protection clause, not just construction added on to interpretation, produced Brown. Robert Bork in his Supreme Court confirmation hearing was another example. As I've said many times before, I don't like the term "semantic originalism" because of how it interacts with public debate about other kinds of originalism, but I have no doubt that many people who preach or practice what they regard as semantic originalism could comfortably get it to produce the result in Brown.

Bolling v. Sharpe and perhaps some other canonical cases (Is Gideon v. Wainwright a canonical case? New York Times v. Sullivan? Griswold v. Connecticut?) may be tougher sledding even for semantic originalism. I have little doubt that the broadest conceptions of semantic originalism (such as Jack Balkin's) can comfortably produce the results in the canonical cases, but I suppose it's possible that other versions of semantic originalism stumble on some of these and thus might fail the test that the relevant cases pose.

But I want to re-emphasize that I wasn't aiming to offer a full-blown critique of any particular interpretive methodology or to defend some alternative. My only point was that there is a flaw in a certain kind of response to a particular criticism. There may be other, better responses. Or someone could bite the bullet and say that a method that fails the Brown test is nonetheless preferred if it is ultimately correct. Although he usually hedges, this is probably what Justice Scalia means when he complains about people who disagree with originalism "waving the bloody shirt" of Brown.

In my last post I did not offer an argument for the proposition that an approach to constitutional interpretation must pass the Brown test.  I simply noted that those who accept the validity of the Brown test but rely on stare decisis have misunderstood what is at stake in the Brown test. I continue to think that.

N.B.  I am grateful to Marty Lederman and Saul Cornell for very useful correspondence offline. I thought about their comments in formulating the foregoing, though I may have said some things with which they disagree.

Saturday, October 24, 2015

Judicial Engagement or Judicial Tyranny?

By Eric Segall

Last Thursday, George Will wrote yet another op-ed advocating that non-elected, life tenured judges play a stronger role in protecting individual liberty (read that as economic liberty), and that this issue should be used by the GOP both in the next presidential campaign and to appoint the next Supreme Court Justice. This argument, against the judicial restraint philosophy advocated by Robert Bork and Ed Meese circa 1980, has been given deep scholarly meaning by Professors Richard Epstein of NYU and Professor Randy Barnett of Georgetown, two of this country’s most intelligent and deep-thinking legal academics. Both of these men have written scores of articles and books arguing that our Constitution, properly understood, as well as society’s current best interests, lie in judges strongly enforcing a libertarian conception of government power where minimum wage laws, union protections, and even non-discrimination laws are inherently suspect. They have been joined by right-wing think tanks like the Cato Institute and the Heritage Foundation as well as by top notch litigators like Clark Neilly, whose book “Judicial Engagement” is a call to arms for judges to seriously question much economic legislation. In addition, Evan Bernick has written thoughtfully in favor of strong judicial engagement at the Huffington Post. Against all of this is nary a word from liberal academics and pundits, though old-guard conservative Ed Whelan is trying hard to block this call for aggressive judicial review by reminding folks about the dangers of allocating more power to government officials we do not elect and cannot vote out of office.

The history of strong judicial review of economic legislation is not a pretty one. Starting in the early 1900’s the Court began striking down laws relating to mild progressive efforts to protect workers, wages, and unions. Over 200 such laws were struck down by the Supreme Court from 1900-1936, and of course many more by lower court judges. This torrent of strong judicial review ended with the New Deal, FDR’s Court-packing plan, and the realization by most academics that the line between pure rent seeking and monopolistic efforts, on the one hand, and legitimate government regulation, on the other, is too fine to be trusted to lawyers and judges. As Holmes said in the first few lines of his famous dissent in the Lochner decision overturning a maximum-hour law for New York bakers: “This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.”

Justice Holmes’ answer to his brethren in Lochner is persuasive and underlies where Whelan, federal judge Harvey Wilkinson, and progressive liberals like Mark Tushnet and yours truly all center our arguments. Whereas Randy Barnett and Richard Epstein believe passionately and sincerely that we would all be better off with strong judicial protection of economic rights, I think our society would be much worse without egalitarian protections for the poor and for workers everywhere. Moreover, I think reproductive freedom is perhaps our most important personal right, given both the bodily integrity interests involved and the dramatic social and economic consequences of unplanned pregnancies. Who is right and who is wrong?  I say let the voters decide whereas Barnett and Epstein want judges to strongly enforce their vision of the right and the good.

Both Epstein and Barnett position their sophisticated analysis in the context of historical arguments about the original Constitution. But, this is 2015, not 1787 nor even 1868, and the history is contested enough and the text vague enough where arguments about what our Constitution really “means,” are silly. We should have a country that works for us today. 

We know what happened the last time judges felt free to second guess normal economic legislation and the results were court packing plans and undue judicial interference with presidential and congressional efforts to address the worst economic depression in our history. No wonder generations of law students have been taught the dangers of returning to that kind of system of judicial review.

The other strategy used by the new “judicial engagement” advocates is to find a few uncommonly silly rent seeking laws passed by state legislatures clearly for the benefit of special interest folks (with the aid of course of aggressive judicial review campaign finance decisions by the Supreme Court), and argue these laws should not be rubber stamped by federal judges under the rubric of an overly deferential rational basis test for economic legislation. But, as George Will favorite Justice Don Willett of the Texas Supreme Court implied strongly in a well thought out and balanced discussion of these issues, state Constitutions and state judges are up to the task of policing the boundary between legitimate regulation and overt rent seeking. We as a society do not need the federal judiciary to play that role.

Virtually all state judges stand for re-election from time to time, and most of the terrible laws cited by the judicial engagement folks are local in nature. The best answer is to allow state judges to decide what is valid and what is not when local legislatures enact statutes at the behest of local rent seekers. In fact, Justice Willett’s fine opinion came in a case involving a silly Texas licensing law that elected judges in Texas correctly rejected under the Texas Constitution. If that decision is wrong it can be corrected by the people of Texas. There is no reason to insert federal judges into this kind of controversy but much danger when unelected and life tenured judges base decisions on the virtually unamendable federal Constitution.

But of course, overturning silly state laws is not the real agenda of constitutional heavyweights Epstein and Barnett. They want existing federal protections for workers, minorities, and the poor to be overturned by federal judges. I am not an economist nor do I pretend to know whether this strong libertarian perspective would be a cure or an epidemic. But I am an expert on constitutional law and the Supreme Court. And I know that Holmes was correct. Our Constitution should not be interpreted by the federal judiciary to be libertarian or socialist or to put in place one unwavering economic theory. The Constitution, in the words of Chief Justice John Marshall, is a broad blueprint designed for the ages. It is emphatically not a license for unelected judges to replace the reasonable but contestable value judgments of more accountable leaders with those of life-tenured government (and federal) lawyers.

Unlike Barnett and Epstein, I don’t want my value judgments imposed as law by federal judges. I am decidedly pro-choice, and I also like the one person, one vote rule announced by the Warren Court in 1964. But, I also know reasonable people can disagree with both value judgments and that the Constitution is silent on both issues. I wish I had a constitutional theory that would allow me to argue honestly that my view of the Constitution is correct or at least better than my friend Randy's. But, many liberals have tried and I remain unconvinced their arguments amount to anything more than "my values are better than yours."

I hold strong  political values, but I am humble about imposing them on the voters against their will. Absent complete irrationality, or clear inconsistency with constitutional text or uncontested history, federal judges (and legal academics and pundits) should be humble as well.

Friday, October 23, 2015

Stare Decisis and Originalism

by Michael Dorf

I taught Brown v. Board of Education to my 1L Con Law class yesterday and part of our discussion was jurisprudential: What methodology does the Court use? What weight, if any, does the Court give to the original understanding of the Fourteenth Amendment? What was the original understanding? Etc. Here I want to use that opening to register a criticism of one particular sort of argument that self-styled originalists sometimes make about Brown and about the relation between stare decisis and originalism more generally.

A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper. We can disagree over how many such decisions there are but if there is anything on the list, it's Brown. As Steve Sachs argues in an insightful paper defending a (very modest) version of originalism, Brown might be said to be right simply “because Brown." Yet, Brown is at least a prima facie problem for originalists because the framers and ratifiers of the Fourteenth Amendment appeared to accept de jure segregation. Originalists have developed a variety of strategies to resist the conclusion that Brown discredits originalism.

The boldest effort is Michael McConnell's argument (in a 1995 Virginia Law Review article that does not appear to be linkable on any free site) that in fact the Reconstruction Congress did intend to abolish de jure segregation. Steven Calabresi and Michael Peri make a similar argument, relying on a view about the Privileges or Immunities Clause. If these sorts of arguments succeed, then there is no conflict. To my knowledge, most historians believe these arguments fail, at least if meant to tell us anything about the concrete intentions and expectations of the framers and ratifiers.

A more common move among originalists distinguishes between concrete intentions and expectations, on the one hand, and original public meaning, on the other. Contemporary "semantic originalists" read the Fourteenth Amendment's language at a hig level of generality and then say either that the semantic meaning itself entails Brown or that the semantic meaning is consistent with Brown, which could be justified as a matter of judicial construction (a kind of filling in or fleshing out) rather than at the level of interpretation (which is a matter of meaning). As I and others have noted before (e.g., here), the move from concrete intentions and expectations to semantic meaning sacrifices most of what made originalism distinctive. Ronald Dworkin was a semantic meaning originalist by current standards. Jack Balkin argues that semantic originalism is consistent with living Constitutionalism. I don't especially like the idea of calling this broad approach to interpretation and construction any kind of "originalism" mostly because I don't like the opportunity for a bait-and-switch. The theory justifies originalism-in-name-only but then the judges in fact deploy old-school-concrete-intentions-and-expectations to delegitmate living Constitutionalism.

Originalists who do not think that Brown or other sacrosanct precedents can be justified using originalism, however defined, sometimes rely on stare decisis. There is a robust debate about how and whether this works. Justice Scalia has said it doesn't have to be justified, because stare decisis is an add-on to any first-order interpretive program. Henry Monaghan has asked whether a stare decisis that is justified on pragmatic grounds opens the door to other pragmatic grounds for nonoriginalist decision making. John McGinnis and Michael Rappaport have argued that stare decisis can be justified to sustain nonoriginalist precedents insofar as stare decisis comports with "original methods originalism," i.e., so long as the original understanding allowed for stare decisis.

I'm not now going to defend a position on any of these approaches. Instead, I want to offer a critique of one particular argument. So, let's assume the following:

(1) Brown and/or some other sacrosanct precedents cannot be justified by first-order originalist methods, whatever the particular originalist thinks those methods are.

and

(2) Brown and/or the other precedents can, however, be preserved via stare decisis, which is permissible on one or more of the grounds discussed above.

Does it therefore follow that the originalist has answered the challenge posed by Brown and/or the other sacrosanct precedents? Originalists who labor to reconcile stare decisis with originalism appear to assume that the answer is yes. I think they're wrong. In particular, I think they misconceive the challenge that Brown and/or the other sacrosanct precedents pose.

The problem for originalism is not that adoption of originalism would result in the reinstatement of Jim Crow. The very sacrosanctity of Brown reflects the fact that--despite ongoing racial inequality across multiple dimensions--no serious figure in American public life advocates a return to Jim Crow.

The problem that Brown and/or other sacrosanct precedents pose is not one of preserving those precedents but of failing a test. The process of deciding upon the "correct" interpretive methodology proceeds, like many intellectual tasks, via a reasoning process that goes back and forth between general principles and concrete applications until one reaches reflective equilibrium. But if Brown and/or some other precedents are right "because Brown" and/or "because X, Y, and/or Z," that means that any interpretive approach that is acceptable must actually produce Brown and/or the other precedents. Preserving sacrosanct precedents is not enough. Indeed, it's not the point of the exercise at all.

Consider an analogy. Suppose I'm trying to decide which of two builders to hire to build a house: Stubbs or O'Reilly. Each of them shows me several houses he has previously built. The Stubbs houses are high quality but the O'Reilly houses are falling down. O'Reilly nonetheless wants me to hire him. I'm skeptical because I see what lousy work he has done in the past. He tells me not to worry because he himself lives in a high-quality house that Stubbs built. O'Reilly is proud of the fact that he hasn't destroyed the excellent house Stubbs built. But I'd be a fool to hire O'Reilly because the capacity not to destroy an excellent house is not a predictor of the ability to build an excellent house.

Originalism supplemented by stare decisis is like O'Reilly.

Thursday, October 22, 2015

Maybe You Can Fix This Stupid Law

by Neil H. Buchanan

There is something very odd about the current debt ceiling stare-down.  The estimate of the drop-dead date has now been moved up twice, and the current November 3 estimate is only twelve days away.  Yet, to read the news, one would think that this was not a particularly important matter.  Not only has there been next to nothing in The New York Times about the debt ceiling thus far, but the usual flood of phone calls from reporters that Professor Dorf and I have experienced during earlier stare-downs has been but a trickle this time around.

There was one very good piece in USA Today last week, in which a reporter not only accurately described the Buchanan-Dorf trilemma analysis, but he even asked the White House press secretary about it.  The response was infuriatingly dismissive, reflecting the Administration's insistent belief that only they are willing to face the "hard truths" about the debt ceiling.  The reporter also elicited an amazing assertion from a former Bush I official to the effect that, "Hey, the government makes all kinds of promises.  Why would you expect them to honor those promises, especially for entitlements?"  I responded to all of this in my new Verdict column today: "Who Is Looking for the Easy Way Out Regarding the Debt Ceiling?"  I hope that many people reading this post will take a look.


Here, I want to discuss the possible ways in which the debt ceiling law could be neutered.  Like most sane people who have thought about the issue, I have long called for the law's repeal.  That, however, is not as much of a fix as it might seem to be, because a future Congress could decide to pass a new debt ceiling law, which would be just as damaging -- and just as unconstitutional -- as the current law.  However, because of the Article III "case or controversy" requirement, there is no way for the Supreme Court to declare definitively that the debt ceiling is unconstitutional, unless there is a real disaster.  At that point, if the Administration carried through on its threat to default on some of the government's obligations, there would be injured parties who could sue the government.  But that means that the only way to reach a judicial resolution is actually to experience the worst outcome that the debt ceiling law's existence makes possible.  [Update: As I describe in a subsequent post, there are ways to seek prospective relief.  However, as a practical matter, it is nearly impossible to imagine how that would actually happen.  Later in that post, I note that there is a way to get an after-the-fact judicial resolution, but only if the president acts first to prevent default.]

The next best thing would be for Congress to repeal the law and to make it impossible for a future Congress to bring it back.  However, unless Congress and the States pass a constitutional amendment to that effect -- as politically unimaginable an outcome as an amendment clarifying that the Second Amendment means what Professor Dorf rightly says it means -- Congress cannot bind future Congresses never to pass any particular law.

Does that mean that there is no way to neuter the debt ceiling permanently (short of an outbreak of sanity)?  Professor Dorf and I took a crack at that question, and we wrote it up in an op-ed which might (or might not) soon be coming to a major newspaper near you.  Whether or not it is ever published, I am comfortable describing the basic idea here, in the context of comparing our solution to other possible solutions.  (If the piece does see the light of day, we will surely link to it here on the blog.)

The so-called Gephardt Rule represented the heyday of budgetary sanity.  Then-House Majority Leader Richard Gephardt created an internal procedural rule requiring that the debt ceiling rise automatically whenever a spending measure implied that the government would need to borrow money.  But as we know, when the Contract On America majority led by Newt Gingrich took over the House in 1995, that rule was quickly jettisoned.  Is there a way to create a binding version of the Gephardt Rule, short of a constitutional amendment?

We think so.  If Congress were to pass a law (not an internal procedural rule) that creates a presumptive rule of construction under which spending measures are deemed to include any necessary increases in the debt ceiling, any future Congress could still get rid of that law entirely, or it could override the presumption on a case-by-case basis.  Passing such a law might be palatable to the Tea Party types in the Republican caucus, because voting for the law would not be a "vote to increase the debt ceiling."  In fact, it would (as I discuss below) in some ways be very appealing to the extremists, because it would mean that every vote on spending measures would also be a vote for an increase in the debt ceiling.  If they think that they want to "stop spending," that might be the best way for them to frame the debate every time an appropriations bill comes up for a vote.

The question is whether this statutory fix would have more of a binding effect in practice than something that is merely a procedural rule internal to a house of Congress.  Again, we think so.  Full-on repeal of our statutory rule of construction would not be necessary for someone to make the debt ceiling a big deal again.  It would merely be necessary to say, "Hey, let's write this spending bill with an override of the presumption."  The good news is that it would be very difficult to find the votes to support even such a limited move; and even if members of Congress would agree to such a bill, a president from either party would be crazy to sign it.

What would happen then?  Strangely, the good news is that we would "only" have another government shutdown.  Because the spending measure (carrying the override of the rule of construction) would not have passed, there would be no appropriations to keep the government operating.  Rather than having a trilemma and a possible default, we would have a rerun of October 2013.

Indeed, as I noted above, making increases in the debt ceiling no longer a separate vote, but simply a part of every appropriations vote, would give the Republicans a reason to fight harder on every appropriations bill.  That might result in reduced spending overall (which is generally a bad thing, at least given the spending priorities of current Republicans), or it might increase the frequency of shutdowns.  Which leads me to a new dictum: Better that the government should shut down for a thousand days than that the government default on its obligations even once.  Frankly, I cannot see how the politics of shutdowns would not quickly turn toxic for Republicans.

Earlier this year, I wrote "You Can't Fix This Stupid Law," here on Dorf on Law.  In the second half of that piece, I argued that the various proposals to "mend, not end" the debt ceiling were inadequate to the task.  There, I criticized proposals offered by one of the deficit-scold think tanks, which included some terrible ideas along with a few veiled attempts to reinstate the Gephardt Rule.  Those proposals were thus appealing as far as they went, but they contained no mechanism for making the new rules stick.

Short of a binding ruling that the debt ceiling is unconstitutional, therefore, I believe that the proposal that Professor Dorf and I have laid out sets up the political incentives in the way most likely to avoid future trilemmas.  It does so with a cost, of course, and government shutdowns should not be trivialized.  In an era when one party is being driven by people who do not care about governance, however, there are going to be some costs to their craziness.  The best we can do is to limit the consequences of such insane behavior.

Wednesday, October 21, 2015

The Second Amendment in Exile

by Michael Dorf

On Monday the US Court of Appeals for the Second Circuit upheld most of the provisions of Connecticut and New York laws limiting assault rifles and magazine size that were challenged under the Second Amendment as made applicable to the states in the McDonald case. The ruling follows a fairly familiar pattern that has emerged in the lower courts following DC v. Heller and McDonald. Here is a summary of the court's reasoning:

(1) The court determined whether the weapons banned were in "common use" and "typically possessed by law-abiding citizens for lawful purposes." The appeals court found that, although the banned weapons are not as common as the handguns at issue in the SCOTUS cases, they are common enough to satisfy the common use requirement and that, while there is some doubt about the numbers, sufficiently many law-abiding citizens possess these weapons that they satisfy the second requirement as well.

(2) The court next determined that because the state laws completely ban the relevant kinds of firearms, they regulate the "core of the right" and impose a "severe burden." Accordingly, the court thought that the bans trigger heightened scrutiny.

(3) Following the practice of other courts to have decided post-Heller/McDonald Second Amendment cases, the Court of Appeals decided to apply intermediate scrutiny. Heller and McDonald themselves rule out rational-basis scrutiny. The Appeals Court opinion is very terse about why it chooses intermediate rather than strict scrutiny, focusing on the fact that other kinds of firearms remain available. It's not obvious why that is relevant to deciding what level of scrutiny to apply, rather than to deciding whether the appropriate level of scrutiny is satisfied, but other courts have also applied intermediate scrutiny.

(4) Applying intermediate scrutiny, the appeals court upheld the bans on assault rifles despite their fairly broad definition of what counts as an assault rifle. The unusual risk of multiple, serious wounds to multiple victims suffices, according to the court, to show that these weapons are especially dangerous, and thus that the bans are justified. They are sufficiently targeted to prevent mass shootings. The court likewise upheld the ban on sales of new large-capacity (more than ten-round) magazines. However, the court invalidated Connecticut's ban on a single non-semi-automatic weapon, the Remington Tactical 7615, a pump‐action rifle that, the court said, fell outside of the rationales offered in support of banning the other weapons.

(5) The court also invalidated NY's prohibition on loading a weapon with more than seven rounds at a time. The court reasoned that someone intent on committing a mass shooting will fill the magazine to the full ten rounds, so there is no substantial interest in limiting law-abiding owners of weapons with a ten-round capacity to seven rounds at a time.

Now some analysis. I have little doubt that eventually the SCOTUS will take another Second Amendment case. Although the appeals court opinion here largely harmonizes its reasoning and result with rulings by other circuits, substantial circuit splits will emerge. There is, moreover, enough uncertainty in the doctrine as a whole that it is hard to imagine the Supreme Court leaving the field completely clear for the lower courts.

In my capacity as educator and casebook editor, I can and do pose questions about how to fill in the details. Is intermediate scrutiny the right standard? What kind of intermediate scrutiny? Can a state or municipality ban open carry? Concealed carry? One or the other but not both? What about weapons (like knives) that are not firearms? And so forth.

However, as an unreconstructed skeptic of the entire enterprise of using the Second Amendment as a vehicle for protecting private firearm possession for self-defense, I want to continue to provide tools for resisting that enterprise. In that regard, consider step 1 in the foregoing analysis. As the dissenters in Heller/McDonald note, if there is a new kind of firearm, the government can ban it initially but if the government waits too long the weapon will enter common use and be protected. Similarly, the idea that a kind of firearm is used "by law-abiding citizens for lawful purposes" is circular. If a category of firearm is proscribable then, by definition, its use for any private purpose is unlawful.

Suppose someone invents a death-ray app for smartphones and that lawmakers in northeastern states immediately ban it. However, legislators in pro-gun states do not ban the app and it quickly becomes common. Does the fact that Texas (say) has permitted the death-ray app mean that it has now entered common use so that New York's ban--which was initially valid--has now become invalid? To my mind, this sort of example shows that, in addition to being based on law-office history, the Heller/McDonald framework is not well thought out.

The Court in Heller and McDonald grafted a self-defense function onto a militia-focused Second Amendment. I could live with that, I suppose, if the Court had done so with real sensitivity because (as I elaborated in the article linked above) I share the view that the Constitution ought to be construed to protect some right of self-defense, including, in extremis, armed self-defense. But the doctrine the Court has fashioned for that purpose under the Second Amendment makes little sense.

Consider another hypothetical. Suppose that someone develops a stun-ray gun that operates over distances as great as conventional firearms but only incapacitates its target for ten minutes. Sound policy would say that people ought then to be permitted to use these stun-ray guns to defend themselves but not to use lethal firearms. A constitutional right that really focused on self-defense would then allow that the government could ban lethal firearms so long as it let people possess stun-ray guns. But the Heller/McDonald framework would not reach that result. Imagine that the federal government immediately banned stun-ray guns (perhaps because the existing gun lobby feared that they would undermine their business). Then there would be no Second Amendment protection for stun-ray guns because they would have no opportunity to come into public use. The Heller/McDonald framework would lead to the perverse result that people could defend themselves with lethal but not non-lethal means. This makes no sense--and further illustrates the folly of using the Second Amendment as the basis for a right of lethally-armed self-defense.

Those of us who think the Court erred badly in Heller/McDonald can, when wearing our exegetical hats, play along with the doctrine. But we should not lose sight of the fact that the foundation is rotten. We should keep in view the real Second Amendment, the one that is all about preserving state militias and can at most serve as a textual hook that, from a historical perspective, accidentally identifies a value of self-defense that may be useful for fleshing out an unenumerated right. That real Second Amendment is in exile now, but keeping it in mind keeps alive the possibility that the Court could some day--perhaps in the not-too-distant future--abandon the journey it began in Heller.

Tuesday, October 20, 2015

An Impish Suggestion to Tax Corporations Based on Executive Pay

by Neil H. Buchanan

One of the great pleasures of being a professor, especially an aging professor, is that one accumulates contacts and colleagues who are incredibly smart, and who occasionally get back in touch to share a fascinating idea that is in the very early stages of development.  Professor Elizabeth Anderson, a philosopher at the University of Michigan who used to teach some courses at the law school there, is one of those people who pops back into my life every now and then with an always-provocative email.  I took her "Race, Sex, and Affirmative Action" course when I was a 2L, and in my ensuing career as a law professor, I have assigned one of her many excellent articles, "What is the Point of Equality?" to my seminar students.

Although she is not a specialist in tax law, Professor Anderson's interest in distributive justice frequently leads her to think about tax policy questions.  For example, a number of years ago, she and I had an interesting discussion about how corporations report large profits to their shareholders yet are able to report low profits on their tax returns.  What tax geeks call "book-tax nonconformity" allows prosperous companies to appear to be poor in the eyes of the tax man.  As I noted above, this kind of scholarly/policy discussion, carried on via email in the solitude of one's office, is part of what makes my job so great.

Well, Professor Anderson is back again, with some further fascinating thoughts on the corporate tax.  And this time, I decided to "go public" with our conversation.  Liz agreed to allow me to share her musings publicly, asking only that I note that "I am not a tax lawyer, but just tossing out an idea to chew on."  But what a juicy idea it is!  Here, I will lay out her basic idea, liberally quoting from her email, and interjecting some of my thoughts and reactions.  There is more than one blog post's worth of ideas here, so I plan to return to this topic with at least one additional post.  I encourage readers to offer their usual constructive reactions on the comment board, which I will then try to integrate into future writings.

Professor Anderson, as the title of this post notes, describes her idea as "an impish proposal for corporate taxation."  A background fact about the U.S. tax system is that everyone, and I mean everyone, hates the corporate income tax.  The reasons for that hatred are quite varied, of course, but this is a tax that is so poorly theorized and filled with so many real-world loopholes that it is nearly impossible to find something good to say about it.  For liberals, however, it is important to remember that the corporate tax does collect an essential -- if relatively small -- amount of revenue ($320 billion, or slightly more than 10% of total federal revenues in 2014), so conservative proposals simply to eliminate the corporate income tax would require large spending cuts or offsetting taxes on individuals.  Furthermore, although there is a great deal of uncertainty about exactly who ultimately pays the corporate income tax (the so-called incidence question), the weight of the evidence indicates that the corporate income tax is strongly progressive.

Even so, the corporate income tax is infamous for its loopholes, with shocking stories about how General Electric leads the corporate pack in both lobbying for tax loopholes and exploiting the loopholes that it has written for itself.  The book-tax nonconformity that I mentioned above is merely one manifestation of those loopholes, but the more famous loophole at this point is the rule that allows corporations to delay (forever, in many cases) paying taxes on income earned in other countries.  "Repatriation holidays" are one of the terrible ideas that have been offered in response to this real problem, suggesting that the only way to get corporations to hold money inside the United States is to provide tax giveaways.  For me, the better answer is simply to tax all corporate income, no matter where it is earned.

But even that is problematic, because measuring corporate income in the first place is so fiendishly difficult.  Some of the difficulty arises from truly vexing questions that derive from the fundamental legal fiction that allows corporations to exist at all.  Other problems, as noted, are simply a matter of gaming the system.  For those who want to sidestep all of this, is there some way to tax corporations in a way that is reasonably well correlated with their profitability but that avoids the measurement and gaming issues that have defied solution?

Here is Professor Anderson's impish suggestion: "[I]nstead of taxing profits, which are very hard to measure, and are gamed with tons of loopholes, and are hidden in tax havens, why not base the tax on the total compensation of the top 5 most highly paid executives at the firm?"  The impishness is obvious, but the suggestion is certainly worthy of more than a moment's thought.  The point is that this is a proposal that would tax a close proxy for corporate income and that would make it unnecessary to measure coporate income directly.

Why might it be correlated with corporate income?  "[I]f it is true, as people claim, that executive compensation really is a sound measure of the extra profits they are generating for shareholders, then true profits should be highly correlated with executive compensation and you can take the one as a proxy for the other."  In other words, the "great man theory" of corporate leadership says that the top men (or, in a few cases, a top woman) deserve their ever-growing pay packages because they are the ones who deliver the goods to the owner/shareholders.  If that is true, then a highly profitable corporatoin should also be a corporation with highly compensated executives.

What would such a tax look like?  "The tax could even be something ridiculously simple, such as a simple multiple of total aggregate compensation (including the value of stock options, of course) of the top 5.  No more corporate tax lawyers!  That would save tons of money and paperwork and bureaucracy.  The most simple corporate tax conceivable.  No more gaming the system--no loopholes."  As I plan to explain in a future post, that description is a bit Utopian, but it nevertheless gets at something very important.

The real point of the proposal, and what makes the suggestion so impish, is of course that it would deliberately shine a spotlight on corporate executives' pay, and it would thus give corporate boards a reason to reduce those pay packages.  A few years ago, Congress passed a law that denied corporate deductions for executive pay beyond a certain level.  I think the cutoff was $1 million per year, but my memory might be failing me.  Surprisingly, the cutoff number became a magnet for corporate pay, increasing the compensation for some people who had been below the cutoff, because the existence of the tax provision somehow provided an argument for corporate executives to say that their companies were not in the big leagues unless they were overpaying their executives.

Although Professor Anderson's proposal could be seen as the super-steroidal version of that proposal, it is hard to imagine that corporate boards would respond by deliberately increasing executive pay: "And, best of all, real pressure on the Board against excessive compensation packages and resultant absurd inequality.  Plus, no problems with corporations stashing profits abroad.  They'd have to pay the tax, regardless of where the profits were made. Because there would be no need to account for where the profits were made, this would also undermine tax havens and fake accounting systems according to which, supposedly, all the profits were made at some mailbox in the Bahamas."

I will return to this topic soon, but for today, I simply wanted to lay out the impish proposal and make the affirmative case for it.  Enjoy this tasty morsel!

Monday, October 19, 2015

Chase Utley, the "Area Rule," and Baseball Standards of Review

by Michael Dorf

My latest Verdict column discusses the Chase Utley suspension for his hard slide that broke Mets shortstop Ruben Tejada's leg in Game 2 of the National League Division Series. I use the controversy over the play--and the ensuing suspension and appeal-- to make a number of points about the law. The larger context for the column is the idea that games and sports can provide interesting insights into law in other contexts. In this post I want to make some further points that I couldn't fit into the column and that mostly involve a discussion of baseball rules for their own sake. (Hey, the DoL banner says this blog covers "Law, Politics, Economics, and More." File this post under "More.") I won't rehash the details of the Utley/Tejada play here, however, so I urge readers who are not baseball fans or haven't otherwise been following this story to read the column first.

Let's begin with the relevant rule that Joe Torre, on behalf of Major League Baseball, says that Utley violated when he slid into Tejada and broke Tejada's leg. It is Rule 5.09(a)(13) of the Rules of Major League Baseball. It provides:
A batter is out when . . . [a] preceding runner shall, in the umpire’s judgment, intentionally interfere with a fielder who is attempting to catch a thrown ball or to throw a ball in an attempt to complete any play . . . .
The Rule comes with its own official Comment, which states:
The objective of this rule is to penalize the offensive team for deliberate, unwarranted, unsportsmanlike action by the runner in leaving the baseline for the obvious purpose of crashing the pivot man on a double play, rather than trying to reach the base. Obviously this is an umpire’s judgment play.
That last sentence (about "umpire's judgment") is important, and I'll return to it below, but for now I want to dwell on a different point: The interaction between Rule 5.09(a)(13) and the so-called "area play" rule, under which a second baseman or shortstop need only step in the area of second base to complete a double play if he's trying to get out of the way of a lead runner.

Fans will recall that after the replay review, the initial ruling that Utley was out on the force play at second was reversed on the ground that Tejada never stepped on second base. That reversal appeared to violate Baseball's Replay Review Regulations. Provision V.D generally makes the question whether a fielder stepped on the base reviewable but includes an express exception making area-play calls non-reviewable. The exception disallows review of
The Umpire's judgment that a runner is clearly out on a force play at second base under circumstances in which the defensive player may or may not have touched second base in his attempt to complete a double play and avoid a collision with the runner.
So why did the umpires change the call from out to safe? The answer given at the time was that Tejada's failure to touch second base was not occasioned by his attempt to avoid being run down by Utley but instead resulted from the fact that the toss of the ball from Mets second baseman Daniel Murphy was high, and that was what drew Tejada away from the bag. Thus, the reasoning goes, this was not an area play.

My view, for what it is worth, is that this reading of the regulation and the play is wrong. It's true that the ball's trajectory factored into Tejada's just barely missing the bag with his toe and that Tejada had his back to Utley as Utley was heading towards him. It's also true that part of the reason Tejada was in such a hurry was that he was trying to get his throw to first base to beat batter Howie Kendrick. However, Tejada undoubtedly knew that Utley was coming and--especially given their history--that he would need to get out of the way quickly to avoid being upended by Utley. Moreover, any time a shortstop or second baseman makes an area play, he has the dual motive of completing the double play and preserving his safety. Given that, and given that Murphy's toss was in the area (so to speak), I think the call should have been denominated an unreviewable area play.

Accordingly, in my view both Utley should have been out--because the area play is unreviewable--and Kendrick should have been out as the penalty for Utley's having attempted to interfere with Tejada's completion of the double play. That second conclusion holds even though Tejada would not have been able to complete the double play in time had Utley not interfered. Rule 5.09(a)(13) imposes the penalty of calling the batter out if the lead runner interferes, even if, in the umpire's judgment, the batter would have been safe without interference. So the umpires on the field and in the replay booth doubly blew it. The result of the replay should have been to confirm that Utley was out on an area play. Meanwhile, Kendrick should have been ruled out initially as the penalty for Utley's violation of Rule 5.09(a)(13). Note, however, that because the Comment makes clear that the application of 5.09(a)(13) is a "judgment" call, once there was no initial call to apply the penalty to Kendrick, perhaps the replay should not have reversed that. But if not, then why did Joe Torre effectively reverse the 5.09(a)(13) determination the next day?

Torre did not have occasion to review the determination that the area play was not in effect. As I note in the column, however, he did review the on-field and instant-replay determinations that Utley's slide was permissible. Torre concluded that that judgment was wrong.

But here's a largely unremarked seeming oddity of Torre's suspension of Utley for violating Rule 5.09(a)(13): So far as I am aware, Torre made no reference to the fact that the Comment commits determinations of violations of that rule to the discretion of the umpire. In law, when a matter is committed to the discretion of an official--such as a trial court judge--exercises of that discretion can only be reversed if the official abused his or her discretion. Put differently, a reviewing body will apply a deferential standard of review in considering whether to reverse a discretionary determination.

Lest readers think I am exporting general principles of appellate review into baseball, where they do not belong, I would emphasize that MLB itself recognizes that review should be conducted under a deferential standard. The Replay Regs state:
To change a reviewable call, the Replay Official must determine that there is clear and convincing evidence to change the original call that was made on the field of play. In other words, the original decision of the Umpire shall stand unchanged unless the evidence obtained by the Replay Official leads him to definitively conclude that the call on the field was incorrect.
Accordingly, one might think that Torre ought to have accorded double deference to the determination that Utley's slide was permissible: once because the initial decision is denominated a judgment call by the MLB official comment; and a second time because of the deferential standard of review in the Replay Regs. Yet Torre apparently made a de novo decision based on the video. What gives?

One possibility is that Torre thought that the umpires on the field and in the replay booth applied the wrong interpretation of the rule. In law, an otherwise discretionary determination does not receive deference on review if the first-instance official applies the wrong legal standard. Maybe Torre thinks that nearly all instances of breaking up the double play when the runner is almost certain to be out are violations of 5.09(a)(13), meriting discipline when injury occurs.

That's a plausible view of the Rule, as I argue in the column, but I don't believe that's what Torre meant. I think Torre believed that Utley's slide was particularly egregious but that a clean slide to break up the double play would not have merited discipline even if a serious injury happened to result. So what did Torre mean?

Under Article XII.A of the MLB Collective Bargaining Agreement, Torre may discipline a player for "just cause," a standard the CBA does not define--although it does provide for the grievance procedure that players may use (and that Utley is in fact using) to contest particular disciplinary rulings. But where the relevant MLB official cites a violation of a rule of baseball as the basis for discipline, shouldn't he be bound by the review procedure that would apply to the umpires and the review officials?

The short answer is no. Torre was right to consider the permissibility of the slide de novo because the standard for overturning a call during a game is appropriately higher than the standard for assessing discipline in the interests of long-term player safety and the integrity of baseball. The deferential standard for in-game changes balances the need to get the call right against the need to keep the game moving. Allowing de novo review of close calls would unduly slow the game, so the rules provide that only a limited category of clear errors can lead to reversal.

But when Torre reviewed the film after the game, the concern about keeping the game moving was absent. The vast majority of disputed calls in a game--Did a tag beat a slide? Was a ball fair or foul? Etc.--will not involve conduct that potentially warrants disciplinary action by the league. On those rare occasions when discipline may be warranted, it makes sense for the officials meting it out to do their best simply to get it right, without applying a deferential standard intended for very different circumstances.

The hearing on Utley's appeal is today. Perhaps some of the foregoing considerations will prove relevant.