Wednesday, August 21, 2019

The Truth Hurts: Why All the Angst About the Senators' Amicus Brief?

By Eric Segall

Social media pundits, constitutional law professors, mainstream journalists, and conservative politicians are all agog about a brutally honest amicus brief filed in a Second Amendment case by Democratic Senators Whitehouse, Hirono, Blumenthal, Durbin and Gillibrand. Republican Senator Lindsey Graham called the brief  "an extraordinary threat from one branch of government to another." As the Washington Post notes, "the Wall Street Journal editorial board dubbed it the opposite of an amicus filing — an 'enemy-of-the-court brief' — and the National Review’s David French called it “astonishing.” Even, liberal law professor Larry Tribe said the brief "was inappropriately — and stupidly— threatening,”

The case involves a relatively silly New York City gun law that has been repealed and cannot be reinstated absent a change in governing New York State law. In other words, the case is almost certainly moot, as the amicus brief correctly suggests and Professor Tribe argues in his remarks about whether the Court should hear the case. But the hoopla isn't about federal jurisdiction but rather the Court as a political institution. The brief is remarkably snarky while also being astutely accurate. As a matter of strategy, the brief may not succeed. As a matter of truth-telling, academics should be praising its substance, if not its style. 


Tuesday, August 20, 2019

Takings and Efficiency: Incoherence Meets Incoherence

by Neil H. Buchanan

The search for a neutral, non-ideological, apolitical answer to policy questions is both admirable and doomed to fail.  It is admirable because we should all want to live in a world in which there is a way to say with confidence, "This is simply true, not as a matter of political preference but as a matter of logic and evidence."  It is doomed to fail because, in the end, policy questions are political, and there is no natural baseline against which we can measure any and all policy alternatives.

That is not to say, of course, that there are no objective facts or even that there are no reliable conclusions that can be drawn from facts.  There are no facts, for example, supporting the claim that Barack Obama bugged Donald Trump's offices (nor are there facts supporting much of anything that Trump says).  There are, however, facts that so strongly support the conclusions that species evolve and that the climate is changing -- just to choose two leading examples-- that one can readily conclude that anyone who denies those scientific conclusions is acting in bad faith.

Even so, it is a fool's errand to try to describe a method by which policy choices can be compared against a neutral baseline to deem them efficient or inefficient.  I have run through various versions of that argument in columns here on Dorf on Law over the past few months (here, here, here, here, and here).

Today, I want to extend that argument to the legal doctrine known as takings, demonstrating that the problems with the efficiency notion carry over to the takings doctrine, rendering it just as subjective as every other attempt to apply orthodox economic theory to real-world problems.

Monday, August 19, 2019

Brexit, Boris, Trump, and the Relative Virtues and Vices of Constitutional Entrenchment

by Michael C. Dorf

In both the US and the UK, serious people now worry that the leaders of government could attempt to retain power after being voted out of office. DoL blogger Neil Buchanan has repeatedly explained (e.g., here) why we have reason to fear that Donald Trump could lose the 2020 election yet receive enough support from Republicans in Congress and elsewhere to claim a fig leaf of legitimacy for staying on while claiming voter fraud or the like. Meanwhile, last week the NY Times reported on a looming scenario in which Boris Johnson could lose a parliamentary vote of no confidence yet defy convention and the tacit assumption behind the Fixed-Term Parliaments Act that a sitting PM should yield power to a new PM capable of forming a government pending a new general election; instead, Johnson might call a new election but remain in office pending its outcome, even after the no-confidence vote. And all of that would happen as the UK crashed out of the EU.

The Times article points to a similarity between the US and the UK, indeed, to a similarity among all constitutional democracy: given the impossibility of anticipating and constraining every opportunity for amoral would-be tyrants to seek advantage, no politico-legal system can operate without some degree of good faith by a critical mass of key officials. Perhaps in the US that would mean the Supreme Court and in the UK the Queen stepping in to block the de facto coups of Trump and Johnson, respectively.

However, in both countries there are reasons to doubt that the deus ex machine would come to the rescue: here the Republican-majority Court's willingness to appear (some might say to be) partisan could lead to invocation of the political question doctrine (see this past Term's political gerrymandering case) or some substantive basis (see Bush v. Gore) for sustaining Trump's coup. In the UK, the Queen might well adhere to the longstanding norm of royal political neutrality, even as Johnson was flouting other longstanding democratic norms.

I agree with the observation that democracy everywhere depends on norms and some measure of good faith. But just as the similarities in appearance, repugnance, and buffoonery between Trump and Johnson mask key differences (as explored recently by John Oliver), so too the differences between the US and the UK may be important in how and perhaps even whether each country survives an attempted coup by its respective clown-tyrant.

Friday, August 16, 2019

America's Health Care Dysfunction Gets Real

by Neil H. Buchanan

Yesterday was my first official day as an employee of the University of Florida.   The day included the usual experiences for a professional worker: seeing my office for the first time, signing up for internet service, getting a parking pass (which I will not need, thankfully), meeting a bunch of friendly new faces, getting lost in the building, and so on.  It also meant that I am once again covered by health insurance ... I think.

Because I occasionally write about health-care policy issues, this seems like a good moment to revisit a few of the many things that are so wrong with the current system in the U.S. -- not just for people who are uninsured or underinsured, but also for the very lucky ones like me who have what at least seems to be adequate (albeit expensive) coverage.  We often become so accustomed to those background facts that it is all too easy to allow the political conversation about health care to become utterly abstract.

I am at this very moment supposed to be choosing my health care plan (along with dental and vision), yet I am instead writing this column about the absurdities of the current system, explaining why this is not an acceptable way to run a nation's health care system.  The very desire to delay this annoyance is, of course, a key bit of evidence that there is something very wrong with the way even supposedly good coverage is administered.

One conclusion is clear: We can and must do better.

Thursday, August 15, 2019

More Things in Heaven and Earth: What the Law Can Teach Moral Philosophers

by Michael C. Dorf

Last week and weekend, I had the good fortune to attend the 12th annual Rocky Mountain Ethics Congress (RoME), hosted by the University of Colorado Center for Values and Social Policy. Prof Colb gave one of three keynote addresses during the four-day conference, in a speech that was also the 2nd annual Tom Regan Memorial Lecture, co-sponsored by the Culture & Animals Foundation. For those unfamiliar with Regan's work, he was a pioneer in the animal rights movement. I italicize "rights," because while Peter Singer's Animal Liberation inspired much of the modern movement, Singer is a utilitarian who, following Bentham, regards rights as nonsense on stilts. Regan was the first philosopher to make a comprehensive set of deontological arguments for animal rights as such.

Although Prof Colb and I acknowledge the importance of Regan's work, as she put the point in her lecture, the way that scholars pay tribute to one another is by critical engagement with their ideas, and so she offered a critique of a point Regan made. Although Regan was (like us) a vegan who thought nearly all animal exploitation unjustified, he also thought that in triage situations, it is morally permissible, indeed obligatory, to prefer human life to other animal life. Thus, to use his examples, should four humans and one dog find themselves on a lifeboat that could only support four such mammals, the dog should be thrown overboard. Even more arrestingly, Regan said that one should throw over a million dogs before tossing a single human.

In her lecture, Prof Colb explained that although Regan thought experimentation on animals is wrong, his lifeboat examples open the door to experimentation and ultimately to all animal exploitation. I won't attempt to summarize the lecture (other than to say it was awesome), because my main interest in this essay is in the rest of the conference. As one of two legal scholars attending a conference of philosophers, I came away thinking there are many opportunities for fruitful engagement between legal scholars and philosophers. We legal scholars see where philosophy can be helpful; I'm going to suggest that philosophers can do more with the law.

Wednesday, August 14, 2019

Terrifyingly Effective Terrorism: White Supremacists versus the Field

by Neil H. Buchanan

Although the national conversation has -- rather incredibly -- already moved on from the El Paso and Dayton mass shootings (now covering awful-but-still-less-bad issues like Jeffrey Epstein and not-at-all-important matters like Joe Biden's flubs), I am still thinking about what it means to live in a country in which white supremacists are starting to take action on their hatreds more frequently and openly.

There is no doubt that what the white supremacists are doing counts as terrorism, because they are terrifying people to the point that children are being equipped with Kevlar backpacks and people are now afraid to do normal things in their daily lives.  The point of terrorism is to make people feel that they are never safe.  That is what domestic abuse does to an isolated spouse (almost always the wife, of course), and it is what national or international networks of terrorists aim to do to people in general.

This then raises a particularly grim question: Who is "best" at creating terror?  The answer is that, although white supremacists are possibly the least organized of all terrorist groups, they seem to have stumbled upon the most effective way to terrorize people.  How does that work?

Tuesday, August 13, 2019

Every Decent Person v. The Estate of Jeffrey Epstein: What Now?

by Diane Klein

The news of Jeffrey Epstein's death (apparently by suicide) in the federal Metropolitan Detention Center in Manhattan early on the morning of Saturday, August 10, 2019, has taken the Internet by storm, and spawned a thousand conspiracy theories.  Of course, there is a great deal that is still not known, and won't be known, until a much more thorough investigation is undertaken.  One thing is certain: the criminal prosecution of Jeffrey Epstein is over.  The death of the defendant brings any such legal action to an end.

Does that mean all the lawyers go home?  Not by a long shot. The legal farrago that is the Epstein matter carries on.

Monday, August 12, 2019

Originalism as Current Law? Yet Another response to Baude and Sachs

By Eric Segall

Last Friday, two things happened to me related to originalism. I received in the mail reprints of an article I wrote for Constitutional Commentary (no link yet) called "Originalism Off the Ground." The piece was a response to yet another Arthurian attempt by Professors Will Baude and Stephen Sachs to convince the world that Originalism is indeed our law. The thrust of my piece was that the collective work of Will and Steve on originalism and history (I will use their first names because I consider them friends) has failed to address the core realist critique that constitutional law is mostly the sum of the Justices' value preferences, and originalism and all other meta theories play at most a negligible role.

The second thing that happened on Friday was that Steve put on Facebook a link to his and Will's new essay titled "Originalism and the Law of the Past," published by the Law and History Review. The SSRN link is here. The third and fourth sentences of this essay state that "originalism is best understood as a claim about modern law-which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed."

Their entire essay (with one small exception discussed below) ignores the argument that the "law" of the past in constitutional law is composed of imprecise text, contested history, political practices that often lead to opposing perspectives about the issue of the day, and Supreme Court precedent which is mostly dictated by values, politics, and experiences, not history. In sum, once again, Will and Steve do not address in any serious way the realist critique. They are avoiding it like the plague (I have drawn their attention to it on numerous occasions in person and in writing). For two legal positivists, this avoidance is important.

Friday, August 09, 2019

The Foolishness of Overestimating Trump

by Neil H. Buchanan

Democrats seem to over-learn certain lessons.  They lost to Ronald Reagan in 1980 and 1984 and decided that the U.S. was a "center-right nation" and that the best thing to do was to become Republican lite.  Bill Clinton later decided to cave to Republican demands for a balanced federal budget and -- when the dot-com bubble created prosperity and a temporary surplus -- Democrats decided that being fiscal hawks was the best approach, leading to Obama's foolish "pivot" to austerity in 2010.

As I have argued frequently (most recently here), Democrats have somehow convinced themselves that their policy views are unpopular, even though the Republicans are under water with voters on every major issue.  Somehow, it is always Democrats who are engaged in soul-searching and wondering why not everyone agrees with them about everything.  The big newspapers and networks are also now in an infinite do-loop as well, asking how "heartland voters" -- understood as what used to be known as Reagan Democrats -- feel about every issue.

The 2016 election was an even bigger shock to the Democrats (and the world) than 1980.  Reagan was seen as an easily beatable doofus, but at least he had been a governor and knew how to deliver a speech -- and had never bragged about sexually assaulting women.  We must of course learn to take nothing for granted, but that does not require treating Trump as some kind of political god who can only be beaten if all of the forces of the universe align in exactly the right way.

This is yet another version of what has long been called the Democrats' defensive crouch.  But it is worse, in ways that are causing Democrats inadvertently to make Trump stronger.

Thursday, August 08, 2019

Second Thoughts About the T Word

by Michael C. Dorf

A recent Washington Post op-ed by Harry Litman occasioned by the mass shootings in El Paso and Dayton calls for the enactment of a federal statute criminalizing domestic terrorism as such. In light of various statements by law enforcement and other officials condemning the respective acts as domestic terrorism, Litman points to the seeming oddity that there is no federal domestic terrorism statute. (He acknowledges that the PATRIOT Act defines domestic terrorism but complains that it does not state a specific crime of domestic terrorism.)

Partly Litman makes a practical point. He says that a specific domestic terrorism law would "bring such crimes into the rubric of predicate offenses for providing material support to terrorists [and] would also provide more resources for the [FBI] on the data-gathering side as well as the prosecution side." Perhaps that's true, although it's not clear that existing legislation is insufficient. Rather, one might think that the resource problem, if there is one, stems from the Trump administration's decision to direct funds away from programs that combat far-right extremist violence.

Meanwhile, it's not as though the absence of a domestic terrorism statute means the El Paso killer is likely to go unpunished. He faces the possibility of state and federal murder charges. Consider another domestic terrorist, Timothy McVeigh. He was found guilty and executed based on charges of conspiracy to use and use of a weapon of mass destruction, destruction by explosives, and first-degree murder. Like the El Paso killer, he could also have been charged under state law. (I am only discussing the El Paso killer, because the Dayton killer is dead.)

Litman acknowledges that there is no shortage of laws under which the El Paso killer can be prosecuted, but he says that the possibility of charging him with these other crimes should not stand in the way of a federal domestic terrorism statute, in the same way that the existence of murder and other laws should not stand in the way of hate-crime legislation. Just as there is expressive value in calling hate-crimes what they are, so there might be expressive value in calling terrorism what it is.

There is, but there is also danger in doing so.

Wednesday, August 07, 2019

Good Faith in Law and Moral Obligation

by Michael C. Dorf

A former colleague of mine used to say that popular misconceptions about the law could sometimes be useful. The example he gave most frequently was the widespread but false belief that for a contract to be binding it must be written. That is not true, except in particular circumstances. Traditionally, the so-called statute of frauds made unenforceable oral contracts that could not be performed in a year or less, contracts for the sale of real estate, and various other oral contracts. Modern statutory schemes expand the categories for which a written contract is necessary. For example, the widely adopted Uniform Commercial Code requires a writing for a contract for the sale of goods for the price of $500 or more. However, as a general matter, oral contracts are binding.

Nonetheless, the popular belief that all contracts must be written to be binding has a salutary effect. It induces those who hold the belief to put their contracts in writing, which in turn greatly simplifies proving the existence and terms of a contract should a dispute arise. One might think that the resulting certainty has such great value that it justifies an actual legal rule requiring all contracts to be written to be binding, but there are countervailing reasons to think that most oral contracts ought to be enforceable. I am not now interested in resolving the policy question whether to extend the requirement of a writing to all contracts. Instead, I'm interested in exploring the potentially salutary effect of what might be thought to be a related misperception of contractual obligation--that contracts impose moral as well as legal obligations.

In my latest Verdict column, I discuss recent criticism by Golden State Warriors head coach Steve Kerr of NBA players demanding trades while they have considerable time remaining on their contracts. Kerr pretty clearly had in mind Anthony Davis's successful demand that the New Orleans Pelicans trade him to the Los Angeles Lakers and Paul George's successful demand that the Oklahoma City Thunder trade him to the Los Angeles Clippers. Kerr said that NBA players have every right to sign wherever they want when they are free agents, but that while they remain under contract, they owe their effort and loyalty to the teams the are on. He appeared to use the language of moral obligation, not just legal obligation.

Tuesday, August 06, 2019

Lock Him Up!

by Neil H. Buchanan

[Note to readers: The two mass shootings over the weekend continue -- quite rightly -- to consume people's attention.  I wish that I could think of something to add to the discussion, but for now, my thoughts are jumbled and my feelings are raw.  I have thus decided to write today on a different topic, one that is important but less immediate and less emotional.]

One of the most notoriously awful aspects of Donald Trump's campaign rallies in 2016 was the howling chants of "Lock her up!"  Indeed, the people who thrill to Trump's brand of ugliness so much that they decide to attend his speeches in person clearly reveled in those chants, relishing the two-minutes-hate pulsing thrill of imagining the hated Hillary Clinton being led off in an orange jumpsuit.

Reportedly, those chants continue to be part of the audience-participation show that is a 2019 Trump rally.  And we can certainly imagine that something like this will become part of the Trump cult's response to whomever is the Democratic nominee next year.  After all, they started the "Send her back!" baying when Trump decided to attack U.S. Rep. Ilhan Omar.  Name a possible Democratic nominee, any of them, and tell me that the Trump crowds will not do something like that again.  If one is honest, it is impossible to deny that this is inevitable.

Does it matter what the content of the chant is?  And would it make anti-Trump voters equivalently awful if they were to start shouting "Lock him up!" at campaign events?  I think that the answers to those questions are yes and no, respectively, but they are certainly interesting questions that deserve some respectful consideration.  What do you do when an unindicted criminal is in the White House?

Monday, August 05, 2019

Arizona's Long-Shot Original Jurisdiction Opioid Case in the SCOTUS

by Michael C. Dorf

As recently reported, the State of Arizona is trying to sue members of the Sackler family and Purdue Pharma in the US Supreme Court, invoking (in its complaint and accompanying brief) both a federal jurisdictional statute and Article III, Section 2 of the Constitution, which provides in relevant part: "In all cases . . . in which a state shall be party, the Supreme Court shall have original jurisdiction." The case falls within the subject matter of the federal courts because, in compliance with the prior paragraph of Article III, Section 2, it is a "controvers[y] between a State and citizens of another state." While the Eleventh Amendment curtailed such jurisdiction where states are defendants, it left such jurisdiction intact where states sue as plaintiffs.

Still, bringing this lawsuit in the US Supreme Court in the first instance is problematic in at least four ways.

Friday, August 02, 2019

Malcolm Gladwell Mangles Casuistry

by Michael C. Dorf

The fourth season of Malcolm Gladwell's podcast Revisionist History includes a great deal of material of relevance to lawyers. Episodes 1 and 2 critique the LSAT and time-pressured law school exams on the ground that they reward quick thinkers at the expense of slower-but-deeper thinkers. There's much in those episodes with which I agree. For just about all of my 27 years in law teaching I have given either 24-hour or 8-hour take-home exams rather than 3-hour in-class exams for exactly the reason that these episodes underscore: The real-life practice of law often puts time pressure on attorneys, but (except perhaps during a trial when an attorney must make split-second decisions whether to object to proffered evidence) rarely does actual legal practice involve the kind of time pressure that the LSAT and in-class exams place on test-takers.

That said, these episodes overclaim. For example, Gladwell contrasts chess grandmasters who are the best speed players with those who are the best players at a normal pace. Fair enough, but Gladwell fails to recognize that even those he calls tortoises are better at speed chess than nearly everyone else in the world, while even those he calls hares are better at normal-pace chess than nearly everyone else in the world. And likewise in law. Time pressure is a source of variation in performance, but it's not the only source and rarely the most important. Time pressure will affect the performance of various excellent lawyers differently. Some excellent lawyers are truly outstanding under time pressure; others are excellent; some are merely very good. By contrast, incompetent lawyers will be incompetent at any speed.

In the balance of this post, I want to focus on another set of flaws in Season 4 of Revisionist History. Episode 5 begins a three-part mini-series on casuistry--a method of moral reasoning closely associated with the Jesuits. The word casuistry is sometimes used as a synonym for sophistry or fallacious reasoning, but Gladwell uses it in its original and literal sense, as case-by-case reasoning rather than deductive reasoning from general principles. (Casuistry derives from the Latin casus, meaning case). I share some of Gladwell's appreciation for this form of reasoning, but I think his key illustrations misfire badly.

Thursday, August 01, 2019

Debating Republican Talking Points: Bad Strategy or Good Practice for the General Election?

by Neil H. Buchanan

Based on my reading of much of the recent commentary from so-called centrists and NeverTrump conservatives, it appears that they experienced something of a group orgasm in watching this week's Democratic presidential not-at-all-debates.  Why?  Because they have convinced themselves that the less liberal candidates brutally exposed the supposedly crazy liberals for being totally unrealistic about health care.  In the estimation of this pearl-clutching crowd, Liz Warren and Bernie Sanders were laid low by the cold reality of centrist logic.

This is nonsense, of course, but it would nonetheless be useful to learn something about how progressives can change the framing of the health care debate going forward.  More generally, it is important to understand the difference between a healthy debate and an unhealthy debate at this stage of a campaign.

The short version of my argument below is that it is not at all healthy to frame opposition to Sanders and Warren on health care (or other Democrats on other issues) in ways that reinforce Republican narratives.  There is a way to hone arguments and to develop responses to Republicans' attacks, but that requires making clear that that is what we are doing.