Wednesday, February 22, 2017

A Serious Proposal to Inform the President

by Michael Dorf

The events of the last several days suggest that the Trump White House, while not exactly the fine-tuned machine that the Maximum Leader touts, is behaving a bit more professionally than in its first chaotic month. On Monday, President Trump named a well-respected, not-at-all-insane general, H.R. McMaster, as National Security Adviser. Yesterday Trump acknowledged the existence of a spike in antisemitic attacks and unequivocally condemned them, while also condemning bigotry more generally. To give Trump credit for these acts is, of course, to grade on an unbelievably generous curve, but it's still a major improvement.

One hopes that the McMaster appointment means that there will be another voice of reason in the higher echelons of the administration so that policy is not made entirely by people in way over their head (Kushner) or working for the Dark Lord (Bannon). Time will tell, but there is reason to be skeptical. Tuesday also saw the release of two appalling internal guidance memos by the Department of Homeland Security that greatly expand the categories of undocumented immigrants who will now be targeted for deportation.

In addition to their cruelty, these guidance memos are not, shall we say, reality-based. One of them commits DHS to construction of Trump's Great Wall, beginning with this piece of justificatory fiction: "A wall along the southern border is necessary to deter and prevent the illegal entry of aliens . . . ."

The other guidance memo states that "[c]riminal aliens have demonstrated their disregard for the rule of law and pose a threat to persons residing in the United States," even as it prioritizes apprehension and deportation of "removable aliens who: (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense." That's right. Any criminal offense. According to Homeland Security Secretary Kelly's construction of the Dear Leader's will, someone who has been charged with possession of marijuana or has not even been charged but is--what?--believed by ICE to have at one point possessed marijuana or to have committed misdemeanor littering poses "a threat to persons residing in the United States."

Kelly's guidance memos should not come as a shock. They implement two executive orders (available here and here) that POTUS Maximus signed on January 25. Trump has justified those orders in turn by pointing to his campaign promises to "build the wall" and to get tough on "bad hombres" bringing crime and drugs from Mexico, but of course, the fact that Trump said something while campaigning hardly makes it true.

I am not so naive to believe that Trump could be induced to abandon his Tremendous Wall or his crackdown on undocumented immigrants by something as impotent as facts. Being a badass towards undocumented immigrants from south of the border and towards anyone suspected of being a "radical Islamic terrorist" were the twin pillars of Trump's campaign. (Wait, you say. What about misogyny? That is no doubt part of Trump's essence and his support, but he didn't expressly campaign on it. But see "nasty woman, such a").

Suppose you could lock Trump in a room for an hour, hold his attention per the eyelid trick of the Ludovico Technique (from the coincidentally appropriately titled film A Clockwork Orange), and expose him to experts explaining how stupid his immigration policy is. Still, Trump is almost certainly too committed to that policy to let it go.

However, there are many topics about which Trump is merely an ignoramus, not an ignoramus with a well-developed, albeit stupid and cruel, policy agenda. With respect to these areas of what we might call non-ideological ignorance, it is in nearly everyone's interest that Trump be better informed. The question is how.

We can begin with the observation that Trump spends MUCH more time watching cable news than even a regular person with a reasonably demanding job ought to. That explains some of his bizarre statements and tweets, including the belief that a terrorist attack had taken place in Sweden the night before Trump spoke at a rally because Trump had watched a FoxNews segment on immigration and crime in Sweden that aired the night before Trump's comments. Whether a riot that subsequently broke out in an immigrant neighborhood of suburban Stockholm vindicates the FoxNews story is beside the point. Even if Trump is only watching reliable reporting, he is getting way too much of his information from tv news aimed at a general audience than from policy experts aiming to inform him on precisely those topics he needs to learn about to make well-informed decisions.

To combat Trump's ignorance while leveraging Trump's status as a cable news junkie, John Oliver has created a series of short commercials featuring a tv cowboy that he has aired on shows Trump watches. Watch below (or, if you're getting this post by email, here).

Funny, no doubt, but even assuming Oliver means this to be taken seriously, it can only scratch the surface of Trump's ignorance. Thus, I want to propose something more drastic, to be implemented by the White House itself. (Pay attention, Reince!)

I propose that Trump be given his presidential daily briefing in the form of a half-hour video that El Jefe can watch each evening in the White House residence (either in his bathrobe or, per Sean Spicer's apparent preference, au naturel). The briefing "show" would be slickly produced and could even be designed to look like CNN or FoxNews, with "guests" who are really policy experts with different views arguing with one another. But it would be based on the professionals' sense of what the president needs to know, rather than whatever happens to be on tv. So, in a sense the tv briefing would be "fake news," i.e., it wouldn't be an actual news show, but it might go some way towards addressing Trump's distractibility.

One obvious downside is that to be fully effective, the tv briefing would have to include some classified information, which Trump might then inadvertently leak to the public. But of course he's already at risk of doing that. And finally, to be clear, this is a serious proposal.

Tuesday, February 21, 2017

Why Should Retirement Planning be Confusing and Expensive?

by Neil H. Buchanan

Notwithstanding Candidate Trump's promises not to cut Social Security, his enablers in the Republican Party have long salivated at the idea of privatizing our retirement system.  Given the utter chaos of the one-month-old Trump presidency, will the Republican true believers finally get their way?

If they do, there will be an endless number of questions that will need to be answered.  But the biggest question is what will happen when millions of Americans will suddenly be forced to deal with for-profit financial marketing companies that will be selling advice and products in the brave new world of private retirement accounts.

The experiences of other countries can give us some sense of what Americans would have to deal with in a post-Social Security world.  Here, I will explain the basics of what a privatization plan would entail, and I will then look at Australia and New Zealand to highlight one particularly costly aspect of any retirement system that forces individual investors to make what amount to life-or-death decisions about how to finance their retirements.

The failed 2005 Bush Administration effort to partially privatize Social Security is a good place to start.  That proposal involved diverting two percent out of the 12.4 percent total (employee plus employer) Social Security contributions that come out of every worker's paycheck (levied against annual incomes of up to roughly $120,000).

The Bush plan would accordingly have reduced guaranteed Social Security benefits commensurate with the reduction in tax withholding, and everyone would then have been responsible for choosing how to invest the two percent of their salaries every pay period.  This was unsurprisingly billed as "freedom of choice" rather than a trap or a burden, but no matter how we describe it, the bottom line is that people would have taken on investment risks that they current do not have to face.

This column is not the place to rehash the debate over whether Social Security is going "bankrupt" or any such nonsense.  I have written about that particular scare tactic many times, most recently in a Verdict column in March of 2016.  I will return to that issue again in the near future, but for the purposes of this column, the question is not whether it is necessary to replace Social Security -- it isn't -- but what would happen if we did.

To simplify matters, let us imagine that the Republicans succeed in a full-on privatization of Social Security, not the camel's-nose-under-the-tent version from 2005.  In that case, a person who earns, say, $75,000 per year would have $9300 each year to invest.  What would she do?

In a system of pure free choice, there would be no rules beyond the requirement that $9300 untaxed dollars would have to be put into a savings account.  Because that kind of rule can be easily evaded by depositing the relevant funds on each payday and then withdrawing them the next day, there would have to be 401(k)-like rules that would force people to keep their money invested in their preferred savings vehicles until retirement.

There would also have to be rules determining which savings vehicles are permissible destinations for workers' retirement dollars.  Condo development schemes and junk bonds would be out, for example, to prevent people from being bilked.   People would also have to work through approved financial planning companies, to prevent fly-by-night operators from absconding with the funds.

It would be tempting to think that this is a simple matter of enforcing uncontroversial financial laws, at least in the sense that it is seemingly straightforward to describe how financial advisors are supposed to behave.

However, given that Republicans are hell-bent on repealing an Obama-written regulation requiring financial advisors to live by the standards of fiduciaries -- that is, to give advice that is in the interests of the clients, rather than recommending that clients' money be deposited in funds that pay the advisors bigger fees -- it is not at all obvious what the rules would be for the companies that would be permitted to handle the trillions of future dollars of retirement savings.

I have recently begun to study the retirement system in Australia, which combines a guaranteed basic old-age pension with a large and relatively complicated system of private savings accounts, the latter of which is called the "superannuation" system.  The Australian system has very tight regulations of financial advisors, much tighter than Republicans in the U.S. would be likely to tolerate.

Even with those strong protections for savers, the Australian superannuation system is extremely expensive.  Taking account only of the direct fees that financial companies charge savers for managing their money, Australians pay on average more than one percent annually of the total funds on deposit.  (The study to which I am referring, written by researchers at the University of New South Wales in Sydney, seems not to be available online.)

This means that a worker with a reasonably healthy retirement account balance of $500,000, which sound likes a lot of money but is actually only large enough to replicate the standard of living of someone who earned roughly $50,000 in her final years in the workforce, would pay about five thousand per year in fees to her financial institution.  Depending on how clever the financial institutions are, those fees would not necessarily be obvious to the saver.

Where is that money going?  Essentially, the people who are managing the investment funds are draining off part of people's retirement savings in the form of managers' salaries, overhead, and marketing fees.  (Social Security obviously has no marketing fees.)  This is why Wall Street has been so excited about privatizing Social Security.  It is the mother lode of potential fees.

But I have found that the most interesting aspect of the Australian system (and a similar one in New Zealand) is that it also requires the diversion of economic resources to create what the Aussies call "financial literacy" and Kiwis call "financial capability."  As a recent paper by three Australian professors explains, the governments of these two countries are putting serious efforts into trying to educate their citizens in how to be financially savvy retirement investors.

Although I used the anodyne phrase "diversion of economic resources" in the paragraph above, a simpler word is "cost."  That is, the governments of these countries are spending money to get people to learn how to maximize their retirement returns, and the people themselves have to spend time and effort (and money, because many of them still need to hire financial planners in addition to paying their investment fund managers) in an often futile attempt to learn the concepts of wise investing.

These costs are most definitely not included in the one percent estimate that I described above.  They are purely the result of people having to use their free time to learn how to invest, a task that many people (not just Down Under, but everywhere) find tedious and intimidating.

If people hate filling out tax returns, imagine how they will despise having to learn how to be savvy investors.  If nothing else, the stakes are much higher, because making mistakes with regard to retirement investments accumulate over a lifetime, whereas annual errors on tax computations do not necessarily repeat themselves.  Making errors in one's retirement savings decisions can mean the difference between a long and comfortable retirement and being too poor to live.

And we should remember that this is not a self-selecting group of people who are otherwise inclined to learn financial concepts.  This is everyone, and even very smart people can be very bad at dealing with these decisions.  For example, an Economics professor at Harvard confessed in a New York Times column in 2015 that he is a terrible retirement planner (regarding his own retirement savings beyond Social Security), even though he has all of the intellectual firepower and training needed to make savvy decisions.  He avoids thinking about it, and he is poorer because of it.

One way to deal with the reality that plenty of people will never become financial literate/capable is to set up default rules that allow them to avoid making decisions.  That, however, merely means that we could respond to the high costs of individual retirement planning by making the privatized retirement system look an awfully lot like Social Security -- hands-off systems in which deposits disappear into a set of legal rules that then spit out regulated retirement benefits in the future.

In my research on the Australian superannuation system, I plan to address the question of whether that country has already gone so far down this road that it would be too complicated to unravel the system and return to something like a Social Security setup.  I am honestly not sure what the evidence will show, which is why this will be a fun project.

We do know, however, that Americans who want to play the markets are already free to do so with any money that they do not spend.  People who either have no extra money to save or who choose not to become financially educated need not hassle with financial planners or investment companies, avoiding both the human cost and the high fees that non-Social Security retirement planning entail.

As I noted above, this column cannot take on every aspect of the privatization debate.  There are costs and benefits of Social Security, and there are costs and benefits of private saving/investing.  I am focusing here on the costs of private financial management, both because they are so high and because they come in many surprising forms.

The bottom line is that most people will fare much worse under a privatized system, but the Republicans do not represent most people when they rally for privatization.  They are trying to serve up a heaping helping of fees to their campaign contributors, and they do not care that most people do not want to be forced to fend for themselves in the financial jungle.  The rest of us, however, should care.

Monday, February 20, 2017

Trump's Taxes and the Return of the Corruption Premium

by Neil H. Buchanan

If guilt can be inferred from a suspect's efforts to cover his tracks, the Trump tax returns must surely be incriminating.  The very fact of Donald Trump's insistence on breaking with decades of precedent by refusing to release his tax returns -- starting when he originally announced his candidacy, and continuing even after his non-majority electoral win -- cannot help but raise suspicion.

Even so, we are necessarily left with little more than speculation as to what he actually has done that he thinks is worth hiding.  And because of its political salience, people who are not tax experts are wading into unfamiliar territory and making unsupportable claims about the Trump tax returns.

For example, in an otherwise solid analysis of Trump's authoritarian impulses, the conservative writer David Frum recently questioned Trump's claim that releasing the tax returns is unnecessary because Trump's required annual financial disclosure report includes everything the public needs to know.  Frum was quite right to say that complying with the financial disclosure requirement is not good enough.

Unfortunately, Frum then overstates the case: "The truth is in the tax returns, and they will not be forthcoming."  If "the truth" means something along the lines of "information sufficient to answer all -- or even most -- of the important questions that have been raised about Trump's financial situation and dealings," then that assertion is clearly wrong.  The fact is that we do not know what questions the tax returns will answer because we do not know what is in them.

I have yet to hear an informed argument that convinces me that the tax returns would definitively show Russian entanglements, for example.  Maybe they would, but it is quite possible that they would not (even if such entanglements exist).

And another popular claim, that the tax returns would prove that Trump's net worth is not what he claims, is almost surely wishful thinking.  Annual tax returns simply do not collect the various pieces of information necessary to draw such conclusions, except incidentally and imperfectly.

Even so, that the tax returns would not tell us everything does not mean that they would tell us nothing.  And as long as Trump is being so secretive, in a context in which he is so shamelessly flouting longstanding practice, he is all but begging to keep the story alive.  And his opponents are -- quite appropriately -- only too happy to oblige.

The most recent skirmish involved New Jersey congressman Bill Pascrell, Jr., who serves on the House Ways and Means Committee, which has oversight of the tax system.  Pascrell relied on section 6103(f)(1) of the Internal Revenue Code, which allows the chair of Ways and Means to require the Treasury Secretary to "furnish such committee with any return or return information specified in [the chair's] request."

Pascrell sent a letter to the current committee chair, Texas Republican Kevin Brady, formally requesting that Brady issue such an order to allow the committee to review Trump's tax returns.  Further, Pascrell requested "that the Committee then vote in this closed session to submit the President’s federal tax returns to the House of Representatives—thereby, if successful, making them available to the public."

Pascrell certainly knew that his request would be denied, so for good measure he added a twist of the knife by reminding Brady that "[t]his Committee followed a similar procedure to release confidential taxpayer information in the past during its exhaustive investigation of the treatment of certain tax-exempt organizations."

There, Pascrell was pointing out that the Republicans (with Brady very much among the ringleaders) had recently decided to review private taxpayer information when it suited them politically, specifically with regard to the IRS non-scandal that has consumed so much time and taxpayer money over the last few years.

Shameless hypocrisy being well within Brady's otherwise rather limited skill set, no one was surprised when he summarily rejected Pascrell's request.  Brady wrapped himself in the flag, writing that "[p]rivacy and civil liberties are still important rights in this country, and (the) Ways and Means Committee is not going to start to weaken them."

And just to make sure that the unctuousness factor was high enough, Brady added: "If Congress begins to use its powers to rummage around in the tax returns of the president, what prevents Congress from doing the same to average Americans?"

If ever a slope was not slippery, this is it.  Trump's situation is completely unique, thus making it impossible to imagine someone saying, "Well, now that we've gotten the president's tax returns, who's next?"  There is no next person, because the issue at hand is a president who refuses to follow longstanding practice (grounded in principles of good governance and transparency) of having presidential candidates release their tax returns.

Moreover, the law specifies (and Pascrell specifically noted) that the review would happen while Ways and Means was "sitting in closed executive session."  Only then would the committee vote on whether to release the returns to the full House of Representatives.  Privacy and civil liberties were already taken into account when writing that section of the tax code, and Pascrell explicitly acknowledged that fact.

Although it is now completely ordinary for Republicans to go to extreme lengths to protect their dear leader, it is still good for the Democrats to force them to do so publicly.  Keeping this issue alive is an important part of being in the opposition.  The public agrees -- by a large margin -- that releasing the president's returns is important.  Knowing that Republicans will continue to stonewall does not relieve the Democrats of the responsibility (to the Constitution as well as to the citizens that it protects) of asking that this be done.

With the Pascrell request now squelched, one interesting question that has arisen is whether another provision in the same subsection of the tax code might provide a different legal avenue that could result in the release of Trump's returns.

Whereas section 6103(f)(1) gives the Republican chairmen of the relevant committees the legal ability to say no if they are hellbent on protecting their man, section 6103(f)(5) is a whistle-blower provision that cannot be blocked by Brady or anyone else.

Specifically, this provision specifies that anyone who has had access to tax information "may disclose such return or return information to" the relevant congressional committees "if such person believes such return or return information may relate to possible misconduct, maladministration, or taxpayer abuse."

This means that all members of the committees would receive the information, whether Kevin Brady or Orrin Hatch liked it or not.  (The other committees specified by the law are both currently chaired by Hatch, the long-serving Republican Senator from Utah.)

Upon a first reading, this provision does indeed seem promising.  If an IRS employee believes that a taxpayer is abusing the system, it might seem that this provision should allow her or him to bring the tax return to the appropriate committees' attention -- including the committee members from the minority party.  Although it would take a great deal of courage to risk Trump's wrath (especially given how poorly most whistle blowers are treated, even in more mundane matters), does this not provide at least an opening?

Actually, no.  As my colleague Philip Hackney at LSU's law school pointed out to me privately, the term "taxpayer abuse" in the quote above refers to abuse of a taxpayer by the IRS, not a situation in which a taxpayer is abusing the tax system.  This, he pointed out, is the best reading of the provision because of references to misconduct and maladministration, which are aimed at potential wrongdoing by the IRS, not taxpayers.

Interestingly (and buttressing Professor Hackney's reading of the text), this provision was added to the code as part of a now-infamous 1998 law in which the Gingrich Republicans, then newly empowered after four decades in the minority, did everything possible to neuter the IRS.  The Republicans did so after staging lurid show trials before congressional committees where aggrieved taxpayers told stories about abusive tax agents, all but a tiny fraction of which turned out to be almost completely fabricated or grossly exaggerated.  (Any misconduct is unacceptable, of course, but there was no evidence of systemic problems or a need for additional safeguards.)

If congressional intent means anything, therefore, the whistle-blower provision embodied in section 6103(f)(5) does not protect an IRS employee who might consider sending Trump's tax returns to all of the members of the Ways and Means committee.

And honestly, it is hard to imagine that the IRS's leadership would want an employee to use even an unambiguous whistle-blower provision to expose Trump's returns.  The Service has been struggling with budget cuts for decades, intensified by the Republicans' vindictive response to the recent non-scandal.  There is no question that the Republicans would harshly punish the IRS as a whole for the release of Trump's returns, even if the disclosure came from one rogue employee acting alone.  (Imagine the conspiracy theories that would follow!)

One further implication of the whistle-blower provision is worth noting, however.  Professor Hackney pointed out to me that an IRS employee who thinks that the Service is being too lenient with Trump might be able to rely on the "misconduct or maladministration" language to justify releasing the returns to the congressional committees.  That is, if there is a whiff of Trump having received special treatment not justified by the law in light of the contents of his return, an employee could blow the whistle.

In certain circumstances, this could amount to the same thing as my initial inaccurate reading of the whistle-blower provision, because if there really is something fishy going on, then disclosure could be justified.  However, if the audit turns up nothing, then closing the audit would not amount to misconduct or maladministration, so no whistle could be blown and the returns could never be made public.

In fact, from the standpoint of those who are hoping to publicize Trump's returns, this is in some sense even worse.  If the audit turns up questionable  items, Trump can quietly settle the issues in order to keep the return private.  So the only situation in which this provision would actually result in disclosure is if Trump did something wrong but the Service agreed to do nothing about it.

In a sense, this is starting to sound like the Trump University case.  After the election, Trump suddenly settled on generous terms with the plaintiffs who were suing him for fraud in that case.  Even though Trump had been fighting the case tooth and nail, the possibility of facing questions under oath (which, thanks to Clinton v. Jones, a sitting president can be required to do) made it important for Trump to pay to make the case go away.

The analogy to Trump's tax situation is intriguing.  He has been fighting audits for years, safe in the knowledge that no one at the IRS would have any reason to disclose his returns even if he were to negotiate an especially beneficial settlement.  Now, however, he can only guarantee the continued privacy of his returns if any settlements do not raise reasonable questions of special treatment from the IRS.

This is still bad news from the standpoint of those who wish to force the release of Trump's tax returns, because he still has the power to prevent that from happening.  Trump will surely continue to refuse to disclose, so only a purely illegal hack of the IRS would result in the release of the returns.

A tiny silver lining, however, is that this might provide a means to reduce what Michael Dorf has dubbed Trump's "corruption premium."  Despite all of the ways in which Trump and his family are looking to seek private gain from public office, Trump now has an incentive to pay his taxes in full without much of a fight.  A reasonable kleptocrat might view that as a small price to pay, but Trump hates to lose, and this will surely cost him money.

Saturday, February 18, 2017

A 4-4 Talk in the Windy City

By Eric Segall

A brief inside baseball interruption for law nerds from the horrors of the real world and our nightmare-producing clown of a President.

I was at the University of Chicago on Wednesday defending my thesis that the Supreme Court should be an eight-person Court evenly divided among Democrats and Republicans. I was talking at a Judicial Behavior Workshop hosted by Judges Richard Posner and Frank Easterbrook as well as by Bill Landes, Lee Epstein and Dennis Hutchinson. Also in the room were such constitutional law heavyweights as Geoffrey Stone, Gerald Rosenberg, and Tom Ginsburg.  I had been told by folks who had been invited to the workshop before to expect serious grilling. The warning was accurate.

After I was introduced, I mentioned how flattered I was to be there when Lee Epstein asked me what specific problems I was trying to solve with my proposal. For the remainder of the ninety minutes, I fielded at least three questions at a time piled on top of one another. I felt like an outfielder trying to catch fly balls at batting practice with Ruth, Aaron and Mays all hitting to me at the same time.

I only mentioned one of my goals (making it harder for five or more Justices to impose their political ideology on the rest of us) when Judge Easterbrook jumped in. His main objection to my proposal, or at least the objection that he most frequently stated, was that he didn't think Republican and Democratic self-identification lined up with being liberal or conservative closely enough to justify the proposal. He kept pointing out that in my list of important 5-4 cases over the last 30 years Justices Stevens and Souter were often liberal votes, and they were both Republicans.

I thought I had addressed this point in my paper when I argued that the cries of "No More Souters" and "No More Kennedys" from GOP interest groups as well as Senators like Ted Cruz would make it highly unlikely that we will again see moderate Republicans on the bench. I also pointed to the work of several important legal scholars who have suggested that given the divided nature of our country today, it is likely that the Court will be divided on a partisan basis for the foreseeable future.  Neither of those points came close to satisfying Judge Easterbrook who, while being quite polite and even a tad warm, was steadfast in that "you will never, ever convince me kind of way." He is quite good at that look.

Geoffrey Stone had slightly more sympathy for my proposal, but he did not agree that there was a serious problem that needed to be fixed.  He argued that if you look at Supreme Court cases over the last 200 years, overall the court has done a pretty good job. Of course there have been some major mistakes along the way, he conceded, but he argued that our country is better off with a strong Supreme Court.  No matter how often I mentioned Dred Scott, The Civil Rights Cases, the 200 or so federal and state laws struck down by the Lochner Court (including Congress' prohibition of child labor), Citizens United, Shelby County, and District of Columbia v. Heller, Stone still insisted that Brown, Roe, and other cases justified faith in the Supreme Court. I am going to go out on an optimistic limb and suggest that Gerald Rosenberg, author of one of my favorite books on the Court, The Hollow Hope, agreed with me as he gave me sympathetic looks throughout much of my exchange with Professor Stone.

Judge Richard Posner, who doesn't like my proposal either, strongly disagreed with Professor Stone. As is obvious from reading Posner's remarks about the Supreme Court over the last few years, he does not have a lot of faith in the institution anymore.  Judge Posner mentioned that he liked Professor Turley's recent Op-Ed in the Los Angeles Times advocating for a 19-person Supreme Court.  Other people in the room then asked me what I thought about that idea. I responded that I liked it but there were serious transaction costs.  That's a lot of confirmation hearings to have over time.  And, can you really imagine reading an important decision with the number of concurring opinions a 19-person Court would likely elicit? How would we figure out the actual holding of a 7-4-3-3-2 split?

Professor Ginsburg and other people in the room were concerned about the effects of my proposal on lower court judges.  They wondered whether the confirmation hearings for those Judges would be much more intense and combative, and whether circuit judges might view their jobs differently knowing that the Supreme Court might tie four to four in highly contested cases. A graduate student also asked me whether my proposal would make it much more difficult for the Court to achieve finality (which is different than uniformity) in the kinds of highly charged cases likely to produce 4-4 splits.

These questions coming at me all at once gave me the opportunity to make three general and important points about my proposal. First, I responded that my plan needs to be compared to our current Court and actual legal system (where Justice Kennedy has been King for a long time) not some highly idealized version of that system. So even if the confirmation process for lower court judges might become more politicized than it currently is (which is a lot), that downside has to be compared to a new world where the partisan make-up of our highest Court is NOT mostly the result of death, illness, and politically timed retirements or ill-timed retirements. If Justice Marshall had lasted just one more year, for example, instead of deciding to retire a year before President Clinton was elected, we’d have no Justice Thomas, and therefore no Citizens United, Shelby County, and Heller, and Professor Stone would be even happier with the Supreme Court. But the randomness of how we structure the Court is truly crazy and needs to be fixed. The obvious solution, ending life tenure, requires a constitutional amendment, whereas my proposal does not.

I also argued that if lower court judges decide to play fast and loose with Supreme Court precedent (as the Fifth Circuit did in the recent Texas abortion controversy) it is extremely likely that the Justices will shut them down even if it means one Justice voting for a result that possibly he or she would not have joined in the first instance. That effect would likely improve respect for stare decisis and the rule of law, another benefit of my proposal.

The finality point is a good one. My response was that we have little finality now in major areas of constitutional law, and if this is a major concern in an important case, the Justices will find a compromise and narrow way to get there. Just last week, Chief Justice Roberts mentioned in Kentucky that the Justices have been having longer conferences and talking since Justice Scalia passed away. I also argued that the Court has issued some final decisions (like Roe) that had major unintended consequences, and that my proposal would make it harder for the Court to err in that direction. As Justice Ginsberg has stated, the Court made a major mistake by deciding the abortion issue “in one fell swoop” (yes that decision was 7-2 not 5-4 but those kinds of lopsided votes in major cases are largely a thing of the past).

By the end of the talk, it was clear that no one in the room was willing to embrace my proposal (at least out loud) but that possibly I had achieved one of the goals of my paper and this entire year long project. Even if I can't get people to agree with requiring a 4-4 split (though some have), or agree but think it will never happen, sometimes academics (I hope) are allowed to present ideas that may shine new or different light on existing problems and institutions. I'd like to think I accomplished that in the Windy City.

Friday, February 17, 2017

One State Two States, Trump States Fantasy State

by Michael Dorf

Suppose you were a professional mediator and two parties came to you to help them resolve a dispute. As Professor Colb explained after completing her training as a mediator, you would quite properly resist the temptation to impose a solution on them. The goal of mediation is to enable the parties to have an honest conversation in which they choose a resolution that suits them. That is fundamentally what distinguishes mediation on the one hand from litigation and arbitration on the other.

Thus, someone with no prior knowledge of the Israel/Palestine conflict or of Donald Trump's profound ignorance about nearly every subject relevant to the duties of the presidency might think that his pronouncement in the company of Israeli Prime Minister Benjamin Netanyahu was simply an expression of neutrality by an honest broker.

Also sprach Trumpathustra:
I'm looking at two-state and one-state and I like the one that both parties like. I'm very happy with the one that both parties like. I can live with either one. I thought for a while the two-state looked like it may be the easier of the two but honestly, if Bibi and if the Palestinians -- if Israel and the Palestinians are happy, I'm happy with the one they like the best.
Much of the press coverage of this statement has focused on how it amounts to a break with bipartisan U.S. government policy for roughly the last three decades, in which the U.S. has urged Israel to make territorial concessions to a Palestinian state in exchange for peace. But is that fair? After all, Trump did not say that he opposes a two-state solution. He merely said that he would accept either a two-state or a one-state solution if either is mutually acceptable to Israelis and Palestinians. What's wrong with that?

Plenty, as it turns out. There are both Israelis and Palestinians who favor a one-state solution, but they mean very different things by one state. And the distance between the respective one-state visions is much greater than the distance between the respective two-state visions.

Right-wing Israelis who favor a one-state solution have in mind that Israel should annex East Jerusalem, the West Bank, and perhaps Gaza. The one state would be Israel. Palestinians would presumably be permitted to continue to live more or less where they do, but to maintain Israel's status as a Jewish state (a core commitment of not only right-wing but most moderate Israelis as well), Palestinians would not be given full democratic rights. Given the demographics, they could not be, because they would outnumber Israeli Jews. Exactly what political status Palestinians would have in a single Israeli state in modern-day Israel plus the occupied territories is not clear. Perhaps they would have the right to vote in local elections and for certain governing bodies with a degree of autonomy. But they would be at best second-class citizens. The highly controversial term "apartheid state," which most Israelis regard as unfair when applied to present-day Israel, would be accurate as applied to a one-state solution in which the one state is greater Israel.

Meanwhile, some Palestinians who favor a single state imagine a single state that is essentially judenrein. Today, people who hold this view tend to be Islamists, but since the advent of modern Zionism in the late 19th century, there have also been many secular Palestinians (and other Arabs and non-Arab Muslims) who opposed any substantial Jewish presence in the lands now denoted Israel and the occupied territories. However, since the emergence of Hamas as more radical than Fatah and also as Islamist, the notion of a single greater Palestine has been more closely associated with the Islamist factions. While many of the Islamists would want Jews expelled from the resulting greater Palestinian state (or worse), there is in classical Islam a milder alternative. In a moderate Islamist Palestine, Jews would not necessarily be the victims of expulsion or genocide, but instead could live with dhimmi status--as Jews and other non-Muslims traditionally did in Islamic lands for much of Muslim history. Such second-class status with attendant partial autonomy would more or less mirror the lot of Palestinians in the Israeli far right's version of a one-state solution.

Needless to say, neither of the foregoing possibilities--Palestinians as second-class citizens in or exiled from a single greater Israel or Jews murdered, exiled, or second-class citizens in a single greater Palestine--is remotely acceptable to any of the people who would be, at best, relegated to the subordinate status.

That leaves a couple of possibilities. One is a single secular multi-ethnic liberal state. This approach is favored by some liberal Palestinians and far-left Israelis. But it is completely unacceptable to the vast majority of Israelis, including many moderates, who fear (not without reason) that the moderate Palestinians who favor peaceful coexistence in a multi-ethnic secular liberal state would be outvoted or overthrown by violent means, so that this option would devolve into the greater Palestinian state in which the best Jews could hope for is dhimmi status.

The other kind of single-state solution would be some form of federalism. The record of federalism as a solution to ethnic conflict is mixed. Belgium and Canada, though hardly without their problems, are relative success stories. Some failures--such as Czechoslovakia--at least failed peacefully, thus ending up as a way station en route to partition. But in none of these places were the differences as great as between Israelis and Palestinians. Yugoslavia looms as the more likely analogy and even Yugoslavia probably had better ex ante prospects for peace than does a federated Israel/Palestine, given the relative peace that had existed for decades (albeit under the strict rule of Tito).

Are there really no other paths to peace? Yesterday the US Ambassador to the UN, Nikki Haley, walked back Trump's comments, casting them as simply a signal that the US wants to help Israelis and Palestinians go about "thinking out of the box." This might be a fair account of what Trump thought he was saying. After all, Trump fancies himself a master deal maker.

However, in this as in so many other matters, Trump's self-conception is a fantasy. There is no evidence that Trump is a genius or even especially good at spotting opportunities for mutually beneficial cooperation where others don't see them. His skill as a deal maker, such as it is, consists in taking advantage of the good faith of the counter-parties to his deals, frequently by failing to fulfill his contractual obligations and then using his holdup power as leverage to induce the counter-parties to take substantially less than full value. Whatever the dubious merit of that path to personal wealth, it will not yield a breakthrough in the Israel/Palestine conflict.

There exists the conceptual possibility that there is some creative deal to be made between Israelis and Palestinians that has heretofore been overlooked. But such a hitherto ignored option would have to be so complex that if there were the will on both sides to strike a deal, the two-state solution would almost surely be the easier one to agree upon.

Accordingly, when President Trump says that he is open to a one-state solution, he does not put any new possibilities on the table. Instead, he diminishes the already dim prospects for peace by undercutting the approach that is, if not likely to succeed, the least unlikely to succeed: the two-state solution.

Thursday, February 16, 2017

How Lawsuits For Humans Can Help Animals

by Sherry F. Colb

In my column for this week, I discuss a lawsuit brought by the animal protection organization "Compassion Over Killing" (COK) against a dairy conglomerate.  The lawsuit alleged price fixing because the dairy conglomerate was paying small farmers to have their dairy herds slaughtered, thereby artificially inflating the price of dairy by cutting the supply.  The lawsuit settled, with the dairy conglomerate having to pay rebates to consumers of dairy during the relevant period.  In my column, I question the wisdom of the lawsuit, if the goal of COK is to help animals.  In this post, I want to explore the two different ways in which a lawsuit that is nominally about protecting the interests of humans (e.g., to lower prices) could, in theory, also further the interests of animals.

One way in which a lawsuit filed on behalf of humans could help animals is if the interests of the humans and the animals in the case are well-aligned.  This might happen, for example, if there were a suit that complained about the shredding of male baby chicks that happens routinely as part of the egg industry on the grounds that such conduct causes emotional distress to the humans bringing the lawsuit.  In such a hypothetical case, a victory would put an end to the cruel practice of feeding baby chicks into a wood chipper (although it is unclear whether the result would simply be the killing of the baby chicks in some other way, since they are surplus--economically garbage--within the industry). Though the suit might in name be brought to further humans' interests, then, the result could be to further both the humans' and the animals' interests.

As I suggest in my column, the lawsuit against the dairy conglomerate for paying for the slaughter of small farmers' dairy herds did not meet this criterion of finding human and animal interests aligned for purposes of the harm complained of.  But there may be other cases (such as the hypothetical one I described above) in which animal and human interest are aligned.  Indeed, part of the premise of the animal rights movement is that we neither need nor benefit from the slaughter and harm inflicted on animals to produce animal-based food (and clothing) and that we could live equally healthy (or healthier) and equally happy (or happier) lives by consuming non-animal-based foods (and wearing non-animal-based clothing) instead.

There is a second way in which litigation nominally brought on behalf of humans could help animals. And that is by raising consciousness.  PETA (People for the Ethical Treatment of Animals) has sometimes brought lawsuits that it expected to lose as a way of shedding light on what happens to animals in humans' care.  In one case, PETA brought a lawsuit alleging that the orcas at Sea World were being kept in a state of slavery in violation of the Thirteenth Amendment.  Given our current doctrines, PETA undoubtedly expected to lose its lawsuit, but in the process of bringing it, there would predictably be a great deal of publicity.  Such publicity could let people know of the horrible ways in which orcas are treated both in their acquisition from the wild and in their lives within SeaWorld, so different from the free lives they would have enjoyed outside of captivity.

I am not sure that PETA's lawsuit was the best way to shed light on the plight of orcas at SeaWorld. Bringing a lawsuit under the Thirteenth Amendment foreseeably offended many people who are not ready to think about human slavery and animal slavery together.  Part of the problem is that some may regard the equivalence as suggesting that the people who were in fact enslaved prior to passage of the Thirteenth Amendment--African Americans--are somehow like nonhuman animals.  Because part of the propaganda of slavery included this sort of comparison (intended to demean the status of African Americans), one must be very careful about drawing the slavery analogy lest one alienate many of the very people who might have been most sympathetic to the cause of animal rights.

In addition to the worry about offending people (which PETA does not appear to worry about nearly enough), the invocation of the Thirteenth Amendment in connection with a theme park that many are inclined to view as benign would predictably strike many people as humorous.  That too is something worth avoiding, because viewing the claim that orcas are like enslaved persons as a funny claim will not raise consciousness about the lives of orcas in any sort of positive way. (SeaWorld did recently announce an end to its orca captive breeding program--but didn't release its orcas into sea sanctuaries. It is possible the PETA lawsuit contributed to the bad publicity that led to that decision, although the film Blackfish undoubtedly played a larger role.)

One could imagine, however, bringing a lawsuit that productively raises consciousness about the horrific conditions in which animals are kept in captivity, whether those animals are orcas or the dairy cattle whose lives were in theory on the minds of COK when it brought its lawsuit against the dairy conglomerate.  In my view, such a lawsuit would have to avoid not only the pitfall of offending people by insensitively drawing triggering analogies between animals and oppressed humans.  It would also have to avoid triggering laughter and derision as well.

I do not have in mind an ideal lawsuit for these purposes, but I do wish to acknowledge that such a lawsuit could be bound to fail and still be productive if it brought to light some of the terrible things that happen to animals kept in captivity.  I think my main criterion for such a lawsuit would be that the practice challenged in the lawsuit should be something that is routinely done to animals rather than something exotic or unusual.  What people need to learn is that there is no "kind" way to exploit animals, that the ordinary, normal, and routine ways in which people utilize animals to create food and clothing is astonishingly cruel and completely unnecessary.

Wednesday, February 15, 2017

It's Not a Lie If You Believe It, So Why Was Flynn Really Pushed Out?

by Michael Dorf

In a classic Seinfeld clip, George Costanza reminds Jerry that "it's not a lie if you believe it."

With this bit of wisdom in mind, the (apparently forced) resignation of National Security Advisor Michael Flynn Monday night presents difficulties for the official story that Trump lost the ability to trust Flynn because Flynn's lying to Vice President Mike Pence led Pence to state untruths to the media. For one thing, as White House Press Secretary Sean Spicer confirmed yesterday, President Trump already knew two weeks earlier that Flynn had dissembled when he told Pence he had not discussed lifting sanctions with the Russian ambassador during the transition.

Thus, it appears that Flynn was not let go because he lied to VP Pence. Rather, as confirmed by the Tweeter in Chief on the morning after Flynn's resignation, apparently Flynn was let go because the public found out that Flynn lied to Pence. Why else would Trump think that leaks, rather than lying or worse by his National Security Advisor, are the "real story" regarding national security?

To be sure, Spicer also claimed that the White House for some time had been evaluating Flynn's ability to continue serving "on a daily basis." This claim contradicts most of reality--including the prominent role that Flynn played in the Trump national security team right up until his resignation. It is also not credible on its face.

Anyway why would lying to Pence be such a terrible offense in this White House? Trump himself lies constantly, and he praises people who lie on his behalf.

Is Pence different? Well in some obvious sense, of course. Pence is a conventional, albeit very conservative, politician, one who is not above stretching the truth in the manner of nearly all politicians but not someone who, prior to his association with Trump, was known as especially dishonest.

The key there, however, is the qualifier "prior to his association with Trump." Think back to the Vice Presidential debate between Pence and Senator Tim Kaine. According to most accounts, Pence "won" the debate by being less hyper and interrupting less than Kaine did. But also by lying a whole lot, often by describing as "nonsense" Kaine's claims that Trump had said things that everyone knew Trump had in fact said.

If Pence was willing to tell obvious lies for Trump, why should he or anyone else on Team Trump be upset about the fact that, as a result of Flynn's lie to Pence, Pence ended up unknowingly making a false statement in reliance on what Flynn told him. Costanza's aphorism was funny because he implied that a liar could turn himself into a non-liar simply by willing himself to believe what he knows to be false. However, when someone really doesn't know that what he says is false, he can't be lying; he can only be mistaken.

So why was Flynn really forced out? Let's consider a few possibilities.

(1) Let's begin with the cover story. It states that the problem wasn't that Flynn's lie led Pence to make an inadvertently false statement; rather, the problem was that Pence and Trump have learned that they can't trust Flynn to be honest with them. This is superficially plausible. Although Trump is a pathological liar, he might nonetheless demand that his advisors only lie for him, never to him. Note that this explanation would require that we dismiss as self-serving Flynn's own claim--in his resignation letter--that he had inadvertently misinformed Pence about the content of his conversation with the Russian ambassador. However, this theory is only superficially plausible because of the timing. As noted above, Trump and Pence appear to have been untroubled by Flynn's dissembling until the public found out about it.

(2) So maybe Flynn was let go because of his wrongdoing. The Logan Act is the most obvious candidate for a law violation, but it is not even clear that it applies to a member of the presidential transition team and it has never actually been enforced. I find it hard to believe that Trump was troubled by this--and again, the timing is problematic here too. Moreover, yesterday Spicer insisted that in talking to the Russians about lifting sanctions, Flynn "did nothing wrong."

(3) Another possibility is that Flynn was getting pressure to resign from the FBI, the CIA, and/or others in the national security establishment. They may have more dirt on him. This scenario strikes me as possible. If true, it would also be very troubling. Even though Flynn was a terrible choice for National Security Advisor--given his bigoted views of Muslims, his poor management skills, and his penchant for believing unfounded conspiracy theories--national security professionals should not be blackmailing White House staff or others in government.

(4) The most ominous possibility, of course, is that Flynn is simply a fall guy. He's not innocent in this view, but he also didn't act alone--and his assurances to the Russian ambassador were only the tip of a much larger iceberg of collusion with a foreign power by Trump campaign and later White House staff. That's the story the FBI has been investigating for months. Look for journalists to keep digging and leakers to keep leaking.

Bottom Line: If Flynn was in fact pushed out to take the heat off of Trump and/or others for contacts with the Russians during the campaign, the tactic almost certainly will fail. Trump undoubtedly would like to change the subject but for some time now, many in the press corps--likely abetted by leakers within the national security apparatus and maybe even the White House--will be asking this question that is dominating headlines this morning: What did the president know and when did he know it?

Tuesday, February 14, 2017

Law, Politics and the Courts in Difficult Times

By Eric Segall

Given President Trump's recent (and not so recent) attacks on the federal judiciary, it is not surprising that Justice Stephen Breyer choose to speak out on Saturday about the public's mistaken notion that "we are actually politicians." Breyer emphasized that the Justices go through each case "with an open mind" and that he wants to hear "both sides" and "then I want to know what my colleagues think and then I want to talk it over." The Justices' job "is not to be on side A or side B but to decide [the case] correctly under the law."

We need an independent judiciary now more than ever.  We also need an honest one. Justice Breyer may consider both sides of every case and hear what his colleagues have to say but after doing that he almost invariably votes with the other liberal Justices. On questions of abortion, affirmative action, campaign finance reform, gun control, federalism, sovereign immunity, and voting rights, he has consistently sided with his liberal colleagues. There are a few exceptions to this obvious pattern such as his vote to strike down the Medicaid expansion of the ACA, and a number of criminal procedure cases, but Justice Breyer has been a reliably liberal Justice over the course of his long career even though most of the high stakes political cases he has had to wrestle with involve vague constitutional language, contested history, and shaky (to say the least) precedents. And, of course, Justice Breyer is actually less predictable politically than any other Justice on the Court with the exception of Justice Anthony Kennedy.

Do Supreme Court Justices need to misleadingly describe how "open-minded" they are and the role that "law" as opposed to "politics" plays in their deliberations in order to serve as important checks on other state and federal officials mowing down our constitutional protections? We have never needed these judicial road blocks more than now but there is a strong argument that public statements like Justice Breyer made on Saturday don't strengthen but actually weaken the credibility of the Justices. Most of my informed non-lawyer friends shrug their shoulders when Trump calls the courts "political" but actually roll their eyes when the Justices pretend law rather than values drives their decisions.

A few years ago, I was discussing my book "Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges," with a nationally known constitutional law professor. He accepted my descriptive account that the Justices don't take prior law seriously enough to warrant calling them judges but argued forcefully that it is dangerous for "experts" like us to take that position publicly. I almost choked on my drink when he suggested that the American people might lose faith in the Court if they "truly understood" that politics and values not law drive most decisions in big cases.

I thought he was wrong then and I think he is wrong today (under much more trying circumstances for the Justices and for us). The American people understand that the reasons many constitutional cases are so difficult is that there is rarely clear text, obvious history, or prior case law to guide the decisions. Under these circumstances, it surprises no one that Justices Alito and Thomas reach conservative results most of the time while Justices Sotomayor and Kagan almost always prefer liberal ones. Admitting this reality is barely a headline while denying it sounds silly, untrue and defensive.

On the radio last Friday night, I suggested that the Ninth Circuit's legal opinion staying Trump's Executive Order on Immigration was probably technically wrong under the law (for reasons relating mostly to how much deference is owed to the President in national security matters and the state of the factual record before the judges) but nonetheless obviously correct all things considered. The hosts of the show, as well as their listeners and folks on Twitter, knew exactly what I meant. The underlying legal issues were difficult, but the right answer was fairly obvious given all that we know about the President's true motivations, the way the order was rolled out, and the chaos affecting real people coupled with the strong convictions among many that the order did not make us any safer from terrorist attacks. Why deny that these other considerations played a major (as opposed to a minor) role in the judges' decision when they so obviously did?

I am not suggesting that where the law is clear, judges should ignore it to achieve personal agendas. I am arguing that in most newsworthy cases the "law" leaves judges with significant discretion (that is why we have so many dissents). In such cases, judges should do their jobs with their eyes on the real world and by weighing actual facts and likely consequences, just as the Ninth Circuit did last week.

In his remarks on Saturday, Justice Breyer observed that the Justices "are not nine geniuses" but they are "nine human beings who have been put in a position of trust." Just so. And at this moment in history, we need these nine people, as well as lower court judges, to act with full awareness of the potential and actual harms we face from our current President. In these trying times, but also in all other times, the Justices will earn the trust Breyer describes more by talking candidly about their all things considered decisions and the enormous discretion they have in hard cases instead of talking about how "the law made me do it." The American people are just too smart to fall for that old line.

Public Acceptance of Driverless Cars

by Neil H. Buchanan

Horse-and-buggy transportation is a thing of the past, having been replaced early in the last century by the private automobile.  But we now know that the current system of transportation is on its way out, too, to be replaced by driverless cars.  How will that happen?

That is an enormous question, and I expect to write a series of columns over the next few months exploring various aspects of this inevitable transition.  To a large degree, I will focus on issues of technology and economics, especially the effects on public finances.  While all of those issues are interesting, however, I will focus here on how public psychology will respond to this change in technology.

This is actually my second column discussing driverless cars.  Late last year, I responded to an inadvertently funny New York Times guest op-ed, in which an author had laid out a number of baseless complaints about the move toward driverless cars.

Among that op-ed's more bizarre objections was the idea that the cost of driverless cars was "largely to be borne by consumers" as well as the government.  By consumers?  Of course consumers will finance the cost of any business's expansion, directly or indirectly.  That is how business works.  That is how business has to work.

Although the author of that particular op-ed was most likely motivated by her or his position as a lawyer for an automotive magazine, even people whose livelihoods are not directly affected by this impending change have strong opinions about the prospect of no longer driving their own cars.  Therefore, it is worth thinking about the general public's reaction to the coming of driverless cars.

It is fair to say that, to this point, the most common reaction in discussions of driverless cars has simply been skepticism about the technology.  How can it be safe to sit in a car that is being driven by a computer?  Would we helplessly watch ourselves being driven into collisions?

The short answer to this question is that driverless cars will not be approved for use until it is clear that the technology is where it needs to be.  As I noted in my column in December, not only is the public going to demand high levels of proof, but the companies pushing the new technologies know that they need to get it right the first time.  A body count -- even one much lower than the tens of thousands of deaths on U.S. roads every year -- would immediately cost those companies billions of dollars while creating even larger psychological barriers in the public's mind to future reintroduction of driverless cars.

Again, however, the public psychology already has a strong presumption against driverless cars.  How will that be overcome?  Note that I am asking how it will be overcome, not whether it should be, because even though I personally am looking forward to the days of driverless cars, there is little doubt that those days will soon be here.

As a background matter, we should remind ourselves just how often people claim that public attitudes can never be changed, only to see those attitudes change rapidly.  As one prominent example, people said that New York City's smoking ban in restaurants and bars was crazy (and unenforceable), but it is now so normal that I had to Google the issue to remind myself when it went into effect.  (It was 2003, but by the time I briefly moved to New York in 2005, it was already old news.)

Today, it would be odd to find a major city in the U.S. and many other countries that allows smoking inside public accommodations.  Even Paris's opposition is now on the margins, with fights over "closed-off terraces" being the big enforcement fight after only a few years of that famously chain-smoking city's ban.

Similarly, many people once treated drunk driving as a joke, but that changed in only a few short years in the 1980's.  And it is not difficult to find movies and TV shows -- even situation comedies -- into the 1960's and 1970's in which spousal abuse was taken to be unexceptional (and unobjectionable).  Although such abuse is sadly still with us, social attitudes have changed radically for the better.

How long did it take the majority of people in the U.S. to get used to same-sex marriage?  In 2004, George W. Bush's reelection strategy included efforts to put completely duplicative same-sex marriage bans on the ballots in key states, in an effort to bring out voters who would then vote for Bush.  By 2016, however, there was no electoral advantage at all to such bigotry.

Still, these analogies are imperfect.  Even though social attitudes can adjust quickly, there are aspects of driverless cars that simply scare people.  One key concern is the loss of control.  People have the idea that they want to be able to be their own drivers because then they can prevent bad things from happening to themselves and their families.

There are a number of reasons to think that this knee-jerk reaction will fade quickly.  First, it is a simple fact that people turn over control of their lives to others all the time.  Every time we board an airplane, we are putting ourselves at bodily risk.  Notably, although there are human pilots, most of the flying is actually now done by computers.  And the shuttle trains in many airports that move people from check-in to their gates are fully automated.  We are actually more comfortable handing over our lives to technology than we realize.

Second, the control that we have over our lives when we drive a car is largely illusory.  Some readers might remember the 2003 version of the caper film "The Italian Job," in which a computer hacker takes over the Los Angeles traffic network, adjusting stoplights to create accidents and to induce gridlock as part of a scheme to force his targets to go where he wants them to go.

Although there is the separate issue of driverless cars possibly being hacked (which is another version of the question of perfecting the technology), the point here is that even the non-hacked system in LA involves a roomful of people and computers that are truly in control of what happens on the roads.  The notion that we are in charge when we are behind the wheel is a pleasant fantasy.

Third, consider the photo above.  Where was it taken?  If your answer was, "It could be anywhere," that means that you have not been living under a rock.  (As it happens, that particular traffic jam was in Sao Paulo, Brazil.)  Living in a major city that has a subway system, I have the option of driving or riding.  When the Washington Metro experiences a delay, I cannot help but think, "Geez, if only I were driving, I'd be home right now."  But when I look at the roads, I realize that I am moving faster than the people who think that they are bold individualists who control their own fates.

The other reason to think about that photo is that it illustrates just how absurd it is to rely on a transportation system in which people are individually trying to navigate in the midst of (and in competition with) other drivers.  A gridlocked intersection is the aggregate result of a number of bad individual decisions, the most innocent of which is that people too often enter an intersection immediately before the light turns yellow and then find themselves with nowhere to go, forward or backward or to either side.

And even though many people do not trust experts when it comes to economics or foreign policy, this is a matter of simple engineering and technology, which the public trust much more readily.  (There is a reason that the late Steve Jobs was treated like a rock star.)  Any first-year engineering student could write the algorithm that would allow cars to merge and to keep traffic flowing, so this is not just a technology problem but a conceptually simple technology problem.

Again, I am not saying that people will read a column like this and suddenly exclaim, "Oh, now I see!  My concerns were so silly."  It will take time for people to adjust, but because the underlying logic of individually operated cars is so indefensible (and the costs in lives and dollars so high), my prediction is that people will adjust surprisingly rapidly, just as they have done so many times before.

Any changes to the way we live our daily lives does require some psychological reorientation.  When email became available, people sometimes called the recipients on the phone to make sure that messages went through, and many other people claimed that written letters were irreplaceable.  Online banking was also a major breakthrough, but it required people to believe that they could trust their banks to take advantage of the internet securely and reliably.

But what about pure emotion?  American mythology is in many ways built upon romanticizing the open road, and many people (including me) often feel that there is almost a zen-like inner peace that sets in on a long drive.  The thing is that people used to say that about riding their horses.  A superior technology soon dominated and replaced an inferior (and cruel) one.

I have no doubt that there will be car theme parks in the future, and that some people will pay money to be able to experience what it feels like to hit the accelerator and feel the wind in their hair, even if doing so is limited to controlled areas.  As driverless technology improves, however, and especially as people are faced with the possibility of avoiding the needless costs of car ownership, emotion will quickly give way to practicality.

At some point, we might find that driverless cars will also be superseded by something even safer and cheaper.  Maybe the creators of "Star Trek" correctly predicted that we will soon figure out how to transport matter through space and then reassemble it, making travel as we know it meaningless (and killing the driverless car industry).

When that new technology, or something that no one has yet imagined, comes into existence, we can be sure that people will mythologize the halcyon days when people could sit comfortably in driverless cars, reading and relaxing while watching the world go by (and no longer dying in large numbers in accidents caused by human error).  Ah, the good old days!

Monday, February 13, 2017

MDL v. Trump

As Civil Procedure teachers, the recent immigration-order fiasco has had a surreal quality to it: it’s as though our bizarre final-exam hypotheticals are coming to life in real time. Questions of standing, appealability, nationwide injunctions, and more are all playing out in front of our eyes—not to mention deep challenges for the separation of powers, federalism, and fundamental rights. But as proceduralists we also noted a seemingly obvious possibility that hasn’t been mentioned by the lawyers or the press. As these essentially identical cases began to proliferate in district courts across the country, why did no one seek consolidation of the cases as a multidistrictlitigation (or MDL).

For the uninitiated, MDL is the statutory mechanism for consolidation of suits filed in multiple federal district courts before a single district judge for pretrial proceedings. All that is necessary for consolidation under the statute is that the cases share a common question of fact, and that the consolidation be for the convenience of the parties and witnesses and that it promotes the just and efficient conduct of the actions. Any party in any of the cases can move for consolidation, and the motion is decided by the Judicial Panel on Multidistrict Litigation, or JPML, a panel of seven federal judges appointed by the Chief Justice. The JPML chooses the district judge to whom the cases will be sent, and, after the conclusion of pretrial proceedings, remands the cases to the districts in which they were filed for trial.

Although it was little noticed for the first several decades after Congress created it in 1968, MDL is now a topic of major interest, primarily because of its ever-increasing prominence in the federal courts: to wit, MDL now accounts for a third of the federal civil docket, and as of January, there were over 131,000 cases pending in MDLs. The vast majority of these cases are in personal injury or products liability. Most attribute the recent explosion of MDL to the demise of the mass-tort class action, which after numerous fits and starts, was essentially killed by the combination of the Supreme Court’s restrictive Rule 23 jurisprudence and the Class Action Fairness Act of 2005.

The main benefits of MDL have long been thought to be in reducing duplicative and expensive pretrial proceedings, and in providing a forum in which the parties can eventually broker a global settlement. So, for example, in a mass tort case, hundreds of cases may be consolidated for purposes of coordinating pretrial motions practice, discovery, and ultimately settlement. This process resolved hundreds of cases involving thousands of individual claims arising from the BP Oil Spill.

Although MDLs are commonly thought of as tools to resolve mass torts, there seems to be nothing in the statute that would prevent its use in public-law cases like the one involving Trump’s executive order. And one might imagine reasons why the parties on both sides of the “v” and the involved judges might want to try it.

Most obviously, the government may have thought that it had a better chance of success arguing before a single judge rather than many. The problem for the government is that, in order for the ban to remain in place, it needs to win every single case challenging it. If even one plaintiff succeeds in obtaining a nationwide preliminary injunction, the ban would be halted. But had all of the cases been consolidated in a single MDL proceeding, then the government would have needed to win only once to avoid a PI. Earlier this month, the administration was successful before Judge Gorton in Massachusetts—if he had been the MDL judge, the government would not have had to continue litigating other cases around the country.

Plaintiffs, too, might see a strategic advantage in the MDL device. If a plaintiff in one of these cases were unhappy with her draw of a district judge, she might be intrigued by a JPML on which six of the seven judges were appointed to the bench by Bill Clinton. The panel has the power to decide which cases to consolidate and where to send them, reviewable only by mandamus. So invoking this procedure might empower a friendly JPML to pick and choose cases to send to a friendly MDL judge.

Finally, it is possible that one of the district judges hearing an immigration-ban challenge might be inclined to pass the hot potato—or that some of the JPML judges might be eager to snatch these high-profile cases.

Setting strategy aside, there are some at least initially appealing systemic reasons for MDL in cases like these. There is, of course, the classic argument for MDL, which is to avoid duplicative proceedings in multiples courts. Moreover, there are deep and unresolved questions that arise when rulings by federal judges conflict—particularly when at least one of those judges orders a nationwide injunction, purportedly enforceable in every district including ones in which judges have come out the other way. Consolidation before a single judge solves the conflicts problem, and, at least arguably, the MDL process provides an opportunity for the federal courts to speak with one voice in controversies of nationwide scope.

While we procedure teachers might get a few more press calls if the MDL statute were invoked, there are nevertheless strong reasons why the JPML should stay away from these sorts of cases. For one thing, any action by the JPML here would immediately politicize the panel and the MDL process. MDL is already in the political crossfire over aggregate litigation generally—one example is the House bill introduced this week that attempts to rein in some of the advantages plaintiffs are thought to have in MDL proceedings. Any use of the MDL process in hot-button cases might reduce its legitimacy in the mass-tort cases where it is really needed (in light of the lack of a mass tort class action).

Moreover, one could imagine Chief Justice Roberts responding to an increasingly political JPML by appointing judges more amenable to his own political philosophy (as he seemingly has done on the Civil Rules Advisory Committee and the Foreign Intelligence Surveillance Court), thereby eliminating any advantage lawyers currently opposing the administration might have. Selection of the judges on the JPML for political reasons could have negative spillover effects, because rather than choosing judges well versed in managing complex private litigation, the Panel would be comprised of judges with ideological priorities that may not line up with efficient resolution of mass torts. This would be an especially inauspicious outcome because, even if the government routinely brought public-law suits to the MDL, they would be substantially outnumbered by the tens of thousands of private MDL cases each year.

Going forward, we think it is an important question whether the MDL process ever makes sense for these sorts of nationwide public-law cases (and, indeed, we are working on a separate project attempting to answer that question). For one thing, in fast-moving, injunctive-relief cases that turn mostly on questions of law, the primary benefit of MDL—streamlining expensive discovery—is really not present. Plus, the use of an MDL judge doesn’t really resolve the underlying problems with nationwide injunctions issuing from a single district court. To the contrary, it just amplifies the problem since the injunction would be issued by a judge chosen by another cabal of judges—a process that hardly seems more democratic. Finally, in cases like these, there may be systemic benefits from multiple decisions by multiple judges arising from arguments by multiple lawyers. Since cases of this magnitude are likely to wind up before the Supreme Court, the quality of justice may improve with even a little bit of percolation in the lower courts.

In sum, MDL seems like a potential avenue for the Executive Order cases and any number of other politically charged cases that may arise during the next four years. But for the reasons mentioned above, we hope that the MDL remains the province of mass torts and our final-exam hypotheticals.