Thursday, May 28, 2020

We Can Have a Fairer, More Prosperous World: The Deep Emptiness of Efficiency as a Concept Is Even Deeper Than It Seems

by Neil H. Buchanan

Pretty much everyone who has studied even a tiny bit of economics is likely to have come across the familiar "efficiency-equity trade off," which posits not only that there are two distinct concepts called efficiency and equity but that they are in conflict.  If we want more efficiency, the logic goes, we must accept less equitable outcomes.  If we want more equity, we must give up some efficiency.  Sound familiar?

This is, in fact, not only wrong as a matter of logic but tragically so in its consequences.  Even though it is wrong, however, the liberal/conservative divide in the U.S. (and probably in many other countries as well, although what counts as left-ish in this country is clearly to the right of center in any other country to which we might compare ourselves) is in some ways built around this false choice.  Liberals have accommodated themselves to the idea that they are trading away some amount of efficiency when they promote things like minimum wages and income supports, and conservatives delight in saying that liberals want to kill the proverbial golden goose.  We thus see right-wing think tanks pumping out op-eds with headlines like this recent New York Times guest piece: "The American Dream Is Alive and Well: We have bigger issues than inequality."

To be sure, left-leaning economists and other policy analysts can do a lot of interesting work within the narrow strictures of that debate, sometimes pointing out when efficiency (as typically conceived) can be enhanced by pursuing more equitable policies.  The most obvious examples are in medical care and health insurance, where it is particularly easy to describe how the usual conservative economic assumptions are violated in ways that cause "free market" choices to be wasteful, hugely unfair, and self-defeating,

But this framing of a trade-off between equity and efficiency is, as I noted above, deeply wrong.  As Professor Dorf announced in his column here two days ago: "A New Buchanan/Dorf Paper Explains Why We Don't See More Conflict Between Law & Economics and Originalism/Textualism."  Our article draws from the authors' respective areas of specialization (I write mostly about economics and policy, Professor Dorf focuses on constitutional law and legal interpretation, among other things) to note an unexpected similarity between how conservatives in my field and conservatives in Professor Dorf's field rig their respective games: both groups claim to be using neutral, objective, and even scientific methods of analysis, yet somehow those analyses can be manipulated to produce conservative results every time.

There is much more to the article, of course, and interested readers should take a look at Professor Dorf's column.  People who have run out of Netflix content might even find a pleasurable diversion in the paper itself: "A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism."  Here, I want to move the analysis from the broader economic critique that forms the basis of half of the article to a particularly alluring misuse of the efficiency concept in legal and policy analysis.

So as not to be coy or evasive, I will state my bottom line as clearly as I can here: Not only is efficiency an empty concept, but it is deeply empty in the sense that it is wrong even to fall back on a narrower claim, which generally goes like this: "Well, it's true that efficiency is manipulable, but there are some situations where it so obvious that something is inefficient that it is still meaningful to use the concept, albeit modestly."  No, even that minimalist defense cannot be sustained.

Wednesday, May 27, 2020

Of Lynchings, Grand Jury Secrecy, and the Rot of Racism in the United States

By Eric Segall

On July 25, 1946, about sixty miles east of Atlanta, two African-American couples, Roger and Dorothy Malcom and George and Mae Murray Dorsey, were dragged from their car at gunpoint, tied to a tree, and shot approximately 60 times. The attack came to be known as the Moore’s Ford lynchings. 

Despite the police interviewing almost 3000 witnesses, and a grand jury investigation that lasted for 16 days with over 100 witnesses, no one was ever arrested for these terrible and gruesome murders, which took place in public. Some people believe this heinous crime was the last mass lynching in our country.

Historian Anthony Pitch, who had already written one book on the subject, spent the last six years of his life trying to unseal the grand jury materials relevant to the lynchings. He believed that this racist crime and the likely coverup of those who committed it was a major event in American history as well a tragic saga of race in America.

He prevailed in front of both the trial court and a three-judge panel of the United States Court of Appeals for the Eleventh Circuit. After the appeals court decided to hear the case en banc, however, Pitch passed away.  Nevertheless, his widow kept the lawsuit alive. Then, on March 27 of this year, by a vote of  8-4, the full Eleventh Circuit reversed the panel decision and said the materials must remain sealed. Mr. Pitch's widow has 90 days from the date of the decision to ask the Supreme Court to hear the case.

As a general rule, of course, grand jury records are and should be sealed forever. This practice protects witnesses and motivates them to step forward, helps police keep matters under wraps while they investigate crimes, and protects the innocent from hurtful disclosures about their private lives, among other benefits deriving from this long-recognized need for secrecy.

Like most important rules, however, the requirement of grand jury secrecy is not absolute. The relevant law is Rule 6(e) of the Federal Rules of Criminal Procedure. The Rule codifies grand jury secrecy and contains a number of exceptions, none of which apply to this case. However, both the trial judge and the three-judge panel held that federal district court judges have inherent discretionary authority in exceptional circumstances to order the release of grand jury materials even if none of the exceptions in 6(e) apply. The narrow exception carved out by these courts was for grand jury proceedings occurring long ago and related to events of great historical significance. Both the trial judge and the appellate panel had more than a reasonable basis for that conclusion because the Eleventh Circuit so held in a prior case. To reach the conclusion that the Moore's Ford lynching materials could not ever be released, the en banc court had to reverse its own precedent.

Tuesday, May 26, 2020

A New Buchanan/Dorf Paper Explains Why We Don't See More Conflict Between Law & Economics and Originalism/Textualism

by Michael C. Dorf

In my Memorial Day essay yesterday, I approvingly referred to two recent criticisms of economists by Professor Buchanan (here and here). Readers may be wondering whether we're done criticizing mainstream economics. If so, wonder no more. We're not. Professor Buchanan (who is himself an economist by training) and I have an article forthcoming in the Cornell Law Review that explains why Law & Economics (L&E) is bunk even when it is not being invoked to promote policies that will kill tens of thousands of people.

In A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism, we look at L&E alongside the other leading conservative approach to law: originalism in constitutional interpretation and textualism in statutory interpretation (collectively O&T). We address a puzzle: Given that L&E and O&T are grounded in different frameworks and prescribe different methodologies, why do they so rarely result in open conflict? The answer: Because they're both so open-ended as to work as a mask for whatever ideological priors a judge holds, and the particular people with those priors are on the political right.

Monday, May 25, 2020

For Memorial Day: Remembering All the Fallen

by Michael C. Dorf

On this Memorial Day, I think it appropriate to remember not only those who lost their lives defending the United States against human enemies but the roughly one hundred thousand Americans who have thus far perished due to COVID-19. Some of those deaths were probably inevitable, but as the widely varied experiences of different countries show, a great many were not. And a recent study concluded that even short delays in imposing social distancing and quarantine measures resulted in tens of thousands of additional lives lost.

Friday, May 22, 2020

Distinguishing Habeas from Conditions of Confinement Challenges is Needlessly Formalistic

by Michael C. Dorf

I have joined an amicus brief that will shortly be filed in a pending case by a prison inmate at heightened risk from COVID-19 due to his age and pre-existing conditions. As readers surely know, prisons and jails have become hotspots for the spread of the novel coronavirus. Designed to house prisoners in small quarters and often over-crowded by ordinary standards, prisons and jails either cannot or do not provide the sort of social distancing that can reasonably mitigate the risk of spread. Consequently, authorities in some jurisdictions have released nonviolent and otherwise low-risk offenders.

However, not all jurisdictions have followed this path, and some that have are doing so in ways that raise questions. Accordingly, lawsuits have been filed. My goal today is not to describe any particular lawsuit in particular, but to make what should be an obvious point about risk and then to propose a commonsense change to state and federal procedural law governing litigation by prisoners.

Thursday, May 21, 2020

Why Are Some Economists So Awful Right Now? Part 2

by Neil H. Buchanan

A bit more than a month ago, I published a Dorf on Law column under the title: "Why Are Some Economists So Awful Right Now?"  I have now added "Part 1" to that title, and today's column is an addendum to my discussion there.

Part 1 focused mostly on two people (Tyler Cowen, who holds formal credentials as an economist, and Richard Epstein, who holds no such credentials but is considered a big shot among the right-wing Law & Economics crowd), both of whom have been particularly awful about the current pandemic.  Both essentially say that they know more than epidemiologists, or at least (per Cowen) that maybe epidemiologists are not all that smart and should not be taken seriously.

To that small brotherhood we can now add Kevin Hassett, former chair of Donald Trump's Council of Economic Advisors (CEA), who was made a Senior Advisor to the President on April 15 of this year.  Hassett, who had mostly flown under the radar even when he was at CEA, has had his moment in the spotlight recently, making particularly galling comments about the COVID-19 catastrophe.  It is worth thinking about what Hassett has done, and why.

Wednesday, May 20, 2020

Do "Fake Friends" Violate the Fourth Amendment? Guest Post by Michael Mills

Note from Sherry F. Colb: When the current public health emergency led law school instruction for the second half of the Spring to shift online, we (Cornell and many other schools) also adjusted our grading policy. Based on principles of compassion, equity, and integrity, we shifted all grading to pass/fail. Everyone who earned a passing grade under these very trying circumstances deserves a great deal of credit, but I also hoped to recognize outstanding performance in some way. Accordingly, I offered to publish two of the top essays for my criminal procedure exam. Below is one of the exam answers of Michael Mills, a law student who has now just completed his second year at Cornell. I have omitted the prompt, because the answer speaks for itself.
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Do "Fake Friends" Violate the Fourth Amendment? 
by Michael Mills

We tell our friends a lot. We turn to them to share our accomplishments when we’re happy. We seek comfort from them when we’re sad. We ask them for advice when we’re conflicted. This tendency is not just a choice we make but a biological imperative. Humans are social creatures that pursue these kinds of interactions to satisfy their psychological needs. But what if this friend that you’ve been confiding in turned out to be a government agent? What if your best friend’s sole purpose in befriending you was to collect information for an investigation? Surely, you would feel that your privacy had been violated. But does the “pretend friend”/government agent's privacy invasion rise to the level of a search under the Fourth Amendment?

The Fourth Amendment protects people from unreasonable searches and seizures. A preliminary question you must ask under the Fourth Amendment is whether the government’s action is a search or seizure; if it is not, the action falls outside the Fourth Amendment’s scope. As a result, if the government’s use of pretend friends is a search, the government must obtain a warrant for it (assuming no warrant exception applies). But if it’s not a search, the government can utilize these pretend friends without a warrant and without probable cause.

To determine whether an action is a search under the Fourth Amendment, we turn to the Supreme Court’s decision in Katz v. United States. The government there recorded the defendant’s conversation inside a telephone booth, without the consent of either party, using an electronic listening device. The Court ruled that this qualified as a search. Under the test Justice Harlan set out in his concurrence, which became the controlling test over time, the defendant had a subjective expectation of privacy for the conversation he had inside the phone booth, and society is willing to accept that expectation of privacy as reasonable.

Applying Justice Harlan’s test, the use of undercover agents posing as pretend friends should qualify as a search under the Fourth Amendment since it violates a reasonable, subjective expectation of privacy. Looking solely at the Katz factors, it is clear that these agents violate our reasonable expectations of privacy. The subjective prong gives little difficulty, since by solely telling something to a friend, and not to the whole world, we are subjectively manifesting an intent not to tell others. There may be cases where this subjective intent is not met (e.g., if you shout a secret across a crowded room to your pretend friend) but in most circumstances you are subjectively intending to talk to your friend in confidence.

The next question is whether this expectation of privacy is something society is willing to accept. The Supreme Court has often taken a descriptive view of this question, meaning the Court asks what possibly could have happened absent government intervention. Because your friends could betray your trust, it is not reasonable to expect privacy.

Yet, this descriptive approach ignores all normative implications. Although your friends may betray your trust, that is not the typical result, and the government’s involvement greatly expands that betrayal’s scope. Obviously, your expectation of privacy in a secret diminishes when you disclose it to others. But the risk you are taking is quite different from the one the State imposes when it gets involved. If you tell your non-agent friend your secret, the typical risk you are taking is that your friend may tell other people that know you.

For example, maybe your friend tells your other friends about your gambling problem (hopefully with the intent of getting you help). Or maybe your friend will encourage your crush to go on a date with you. Or maybe your friend tells your significant other about an affair you're having. Normatively, however, you are not taking the risk that your friend is going to go to the government with your secrets. That result is highly unusual, absent governmental intervention.

Additionally, it seems inconsistent to say that the government violates a reasonable expectation of privacy when it listens into a call without your friend's consent (like what happened in Katz) but doesn't violate it when it becomes your (pretend) friend. The end result is the same in both cases from the speaker's perspective. As a society, we should recognize that there are limits on the risks you are taking by talking to others. Those risks usually don't include the intrusion of the government spying on your life and secrets. Thus, society should recognize the reasonable expectation of privacy in friends.

The Katz test, however, is complicated by the Supreme Court’s precedent in United States v. White. In this case, the Court took a descriptive approach and held that there was no empirically reasonable expectation that no one would listen to your calls with friends when your friend consented to the government's listening. Even assuming this case is rightly decided (which is questionable based on the above Katz analysis), the government action in White was different from the government’s use of pretend friends.

White involved only the government listening in on four conversations between the defendant and his friend. But when a government agent becomes your "friend" with the sole purpose of infiltrating your life, the scope of the privacy violation is much greater. The pretend friend cares nothing about you or the secrets you share. As a result, the pretend friend violates the expectation of privacy for everything that you tell them.

For example, you may tell the friend that you’re getting a divorce. That has nothing to do with the government's investigation, but now they know it. By contrast, your real friend isn't going to share that information with the government if the government is only interested in your criminal wrongdoing. Thus, the use of pretend friends is different from White because the intrusion’s scope is much wider.

We can draw a good analogy  between this situation and the GPS tracker cases. The Court held in United States v. Knotts that a tracker installed in a barrel the defendant bought didn't violate a reasonable expectation of privacy since the defendant had no reasonable expectation of privacy while traveling in public. This was a descriptive approach since anybody could have followed your travels, similar to the tracker. However, compare this result with Justice Alito's concurrence in United States v. Jones. There, a GPS continuously trackedthe defendant's every location for a month. Alito, joined by four Justices (and a fifth, Justice Sotomayor, who agreed with his conclusion but felt it wasn't necessary to reach the issue), argued that this extensive scope violated a reasonable expectation of privacy. Tracking more limited in scope, such as in Knotts, did not violate a reasonable expectation of privacy because of its duration. But Alito argued a month of 24-hour surveillance did violate a reasonable expectation of privacy. This analysis is a normative approach since somebody could follow you every hour of the day for a month, in theory, but they rarely actually do so.

Similarly, here, the government listening in on some phone calls with your friend does not violate a reasonable expectation of privacy. But the government befriending you and taking note of everything you share with your fake friend for an indefinite time certainly exceeds White's scope and violates your reasonable expectation of privacy. For these reasons, White does not preclude the argument that "fake friends" violate a reasonable expectation of privacy. Therefore, since fake friends are searches under the Katz test, the government should have to obtain a warrant before implanting a pretend friend in your life.

Tuesday, May 19, 2020

Holding the States and Cities Hostage to Enable Corporate Recklessness

by Neil H. Buchanan

Mitch McConnell announced earlier this month that he, Donald Trump, and their Republican enablers will "take a pause" before moving forward on any further economic relief bills.  And why not?  Democrats capitulated to McConnell's insistence that the bills that have been passed thus far leave out states and cities, which desperately need fiscal relief.  Meanwhile, Lindsey Graham has said that extending unemployment benefits will happen "over our dead bodies."

On the other side of the ledger, there is still a half-trillion dollar slush fund that Trump's Treasury lackey Steve Mnuchin can dole out to Republican-friendly corporations.  The deal so far, just as it was with the 2017 tax cut, is to provide crumbs to the masses and feasts for the wealthy.  But it is always possible to grab for more, and McConnell knows a good hostage when he sees one.  What does he want?  An end to corporate accountability, of course.

Here, I want to discuss McConnell's insistence on holding up aid to genuinely needy and essential recipients like state and local governments and to explain why his opportunistic decision to tie any such aid to "lawsuit protection" for businesses is nonsensical.  Although I have reluctantly concluded that Democrats should grit their teeth and pay the "corruption premium" that Republicans have demanded, allowing McConnell to get away with this heist would represent perhaps his most cynical success yet (outside of his court-packing schemes, obviously).

Monday, May 18, 2020

Inspector General Firings Highlight the Danger of the Unitary Executive Theory

by Michael C. Dorf

During the oral argument last week in Trump v. Vance, the President's attorney, Jay Sekulow, rested part of his case on the assertion that the President "is himself a branch of government. He is the only individual that is a branch of government in our federal system." Sekulow meant thereby to invoke the so-called unitary executive theory.

The textual root of the theory comprises the first sentence of Article II: "The executive power shall be vested in a President of the United States of America." You see?, say the unitary executive theorists. All executive power is vested in the President. From that proposition, unitary executive theorists derive various further ones, such as the one for which Sekulow was arguing--that the President should be immune from a state grand jury subpoena, which could distract said entire branch of government from his/its vital work.

It's easy and completely appropriate to ridicule Sekulow's answer with respect to the current President, who seems to spend most of his waking hours watching cable news, Tweeting, and holding extensive press conferences to praise himself, insult the press, and spread lies. On one hand, it's hard to imagine that the President could be more distracted from his job; on the other hand, given the terrible things he does when he actually does the job, it might be good if he were even more distracted.

However, Sekulow's argument would apply to all future Presidents, not just the current one. And as I acknowledged in one of my DoL essays last week, the Vance oral argument and the companion argument in Trump v. Mazars raise real questions about the risks that state grand jury proceedings or excessive congressional inquiries could undercut a normal President's ability to do the job.

Yet while courts and other actors should be sensitive to the dangers of excessive interference with the President and the executive branch, the unitary executive theory is not the right vehicle for expressing that sensitivity. It is dubious in principle and affirmatively dangerous these days--as Trump's firing of State Department Inspector General Steve A. Linick on Friday illustrates.

Friday, May 15, 2020

Using the Crisis to Advance a Preexisting Agenda: Not a 'Both Sides Are Equally At Fault' Situation

by Neil H. Buchanan

Two weeks ago, I wrote here on Dorf on Law that progressives are most definitely not wrongly exploiting the current economic crisis to, as the editors of The Washington Post put it, "use emergency legislation intended to rescue the economy as a vehicle to achieve long-sought progressive goals."  I tried to contrast two types of responses to a crisis: what one could call the "exploitation" move by advocates who push their unrelated policy agendas, as opposed to the "now more than ever move" by advocates who make the case that things that they have always favored have now become even more important due to the crisis.

It is actually somewhat tricky to distinguish the two, because both responses can be characterized as beginning with: "As I've been saying all along ... ."  A key difference is in whether the policy agenda is actually relevant to the crisis.  Thus, I argued that progressives' calls for massive spending on infrastructure (water and sewage systems, bridge and tunnel repair, and so on) are not exploitative, because the argument for such spending is strong at all times -- infrastructure spending increases growth and prosperity -- but is even stronger when there are millions of unemployed workers and resources available.  Eliminating the estate tax, by contrast, would be an exploitative move.

In a comment on that column, Professor Dorf added a new category, writing this:
"We might distinguish 3 categories of policy proposal that X pushes in a crisis:

"(A) A policy that X wouldn't ordinarily favor;
"(B) A policy that X would ordinarily favor on grounds G1 but that is now also supported by G2 due to the crisis; and
"(C) A policy that X would ordinarily favor on grounds G1 and that X is now supporting either on grounds G1 or on pretextual grounds G2 that have nothing to do with addressing the crisis.

"(A) clearly is not exploiting the crisis. (C) clearly is exploiting the crisis. I read Prof Buchanan to say here that (B) also isn't exploiting the crisis. I think that's right, but I also think that how one characterizes any instance of (B) will depend in part on what one thinks about the policy's merits (in general and in the special case of the crisis)."
I want to focus on the final sentence of that helpfully clarifying comment, but first I think it is important to work through Professor Dorf's three categories, especially because the first one was at best implied in my column (but was in any case unexplored).

Thursday, May 14, 2020

Fun With Logic and Its Antithesis in the Trump Era

by Neil H. Buchanan

My new Verdict column, published today, is the first of a two-part analysis in which I make the case for federal disaster relief to states and cities whose budgets have been decimated by the pandemic-related economic crisis.  The second part, to be published either tomorrow or next week, will focus on a potential workaround if Mitch McConnell, Donald Trump, and their tribe continue to oppose such relief.

Today's column, however, is more of an exercise in counter-punching.  Indeed, it essentially amounts to a series of responses to Republicans' absurd talking points, in particular McConnell's claim that such relief to states and cities would cause the federal government to "pay for the Democrats' mistakes," or something like that.  I point out, among other things, that it would be incredibly easy to put states and cities into the same financial position that they would have been in if there had been no crisis, which would mean that any such previous mistakes or supposed overspending by Democrats would not be covered.  Computing this is, in fact, easy to do, which means that -- big surprise -- McConnell's argument is a pretext to justify his cruelty.

Why Republicans want to allow harm to come to the states and cities is not my point here (spoiler alert for Part 2: unions), but especially as an employee of a state that Trump absolutely must carry this Fall -- without Florida, there is virtually no path even to an Electoral College majority for him -- I continue to believe/hope that at some point the Republicans will see their own self-interest in doing the right thing.

Here, I want to run through a list of randomly selected terrible recent arguments from Trump and the Republicans that rival or surpass McConnell's terrible arguments against providing assistance to sub-federal governments.  I will end with a discussion of an odd political argument from a Republican operative whom I quote in today's Verdict column, but the only common thread here is that this is a litany of frustrating but somehow fun examples of egregiously bad attempts at reasoning from what now counts as the conservative movement in the U.S. -- a movement that, by the way, once claimed to be all about ideas.

Wednesday, May 13, 2020

Bridgegate & the Pathological Perspective on Trump's Financial Records

by Michael C. Dorf

In my Verdict column this week, I discuss the prospects for holding corrupt government officials accountable in the wake of the Supreme Court's unanimous decision in Kelly v. United States reversing federal convictions for the "Bridgegate" officials. I obliquely suggest that the Court has gone overboard (in this and prior cases) in narrowing acts of Congress that aim at corruption, even as I acknowledge a risk of over-criminalization. Here I want to briefly tie my observations on the Kelly case to yesterday's arguments in the Trump financial records cases.

Tuesday, May 12, 2020

Lawyer Highlights and (Mostly) Lowlights in the Congressional & Grand Jury Subpoena Oral Arguments

by Michael C. Dorf

The big news from today's oral SCOTUS oral arguments is that there appears to be a greater likelihood that the Court will allow the Manhattan grand jury subpoena to stand--or at least will deny Trump's categorical objections to it--than that it will give its blessing to the House committee subpoenas. The conservative Justices seemed receptive to NY County DA Carey Dunne's argument that the Manhattan case is essentially controlled by Clinton v. Jones. If the president's interest in avoiding distraction does not suffice to give him categorical temporary immunity from civil litigation, then it surely does not suffice to overcome the state's stronger interest in the vindication of its criminal law.

To be sure, Trump lawyer Jay Sekulow argued that Jones was a wholly different case because it arose in federal court. But while Sekulow was very loud, he wasn't very persuasive for two main reasons. First, the Court in Clinton v. Jones said only that it wasn't reaching the question whether a different result might obtain in (a civil case in) state court. Yes, as the Clinton Court said, the considerations of federal supremacy make such a case different, but that doesn't necessarily mean that a different outcome should result. Sekulow's argument treated the Court's express reservation of the question in Clinton as though it resolved the matter.

Second, nearly all the force was taken out of Sekulow's argument by the fact that the NY case, though originating with a grand jury subpoena in state court, was actually litigated in federal court. Some readers might be wondering how that can be. What about the Anti-Injunction Act? What about Younger v. Harris? Those are, respectively, a statute and a case affirming a judge-made abstention doctrine that typically limit the ability of federal courts to interfere with ongoing state court proceedings. Although the federal district court found Younger abstention justified, the US Court of Appeals for the 2d Circuit did not and persuasively explained why not. No one said anything about either Younger or the Anti-Injunction Act during the oral argument, and everyone took for granted that this case was appropriately in federal court and that future such cases, if any, would also result in federal court litigation rather than state court litigation to determine whether a subpoena could issue. Concerns that a state court would be insufficiently protective of the president's legitimate claims of burden or privilege accordingly rang hollow.

Overall, the NY oral argument gave the impression of the Justices moving towards a consensus that would allow the grand jury subpoenas to issue, subject only to particularized objections to be evaluated under a standard that looks to the state's reasonable need for the evidence in a timely fashion. That would be a major legal defeat for Trump but perhaps not so damaging politically, because grand jury secrecy would prevent the documents from becoming public until long after the November election.

So far as the political stakes are concerned, therefore, the real action was in the first oral argument, in the two cases involving House committee subpoenas. And there, with the possible exception of Justice Breyer (who worried about a future Joe McCarthy harassing a future FDR or Harry Truman) the tea leaves point to a potential partisan divide with Trump winning 5-4 (or 6-3 if Breyer defects). To be clear, I don't favor that outcome. And as I'll now explain, I don't think that the actual substance of the oral argument justifies it either.

Deconstructing Justice Thomas: The Greatest Non-Judge Justice of Them All

By Eric Segall

"He does not believe in stare decisis, period."
      Justice Antonin Scalia on Justice Clarence Thomas

What constrains Supreme Court Justices who serve for life and do not have to worry about re-election? Some people have caricatured my thesis that the Court is not a court and the Justices are not judges by suggesting that I believe there are no limits on the Justices' decision making, but that is not true. As I discuss below, there are a number of limits on how the Justices do their job.

I have to discuss these limits at some length before I can get to why Justice Clarence Thomas is the greatest non-judge Justice of them all. So please bear with the preface to that argument.

Monday, May 11, 2020

Justice Thomas's Faux-Originalist Critique of Overbreadth is Radically Underinclusive (and Wrongheaded in Other Ways Too)

by Michael C. Dorf

On Thursday, in US v. Sinening-Smith, the Supreme Court, speaking through Justice Ginsburg, unanimously reversed a decision of the Ninth Circuit on the ground that that court so over-stepped its role in the adversary system as to have abused its discretion. According to the SCOTUS, by inviting amici to argue points not directly presented by counsel without adequate justification (such as the need to assure itself of proper subject matter jurisdiction, which courts must raise sua sponte), the court impermissibly took over the appeal. To be sure, "a court is not hide-bound by the precise arguments of counsel," Justice Ginsburg acknowledged, "but the Ninth Circuit’s radical transformation of this case goes well beyond the pale."

Yet just ten days earlier, the Supreme Court itself had issued an order in the pending cases involving Donald Trump's financial records, seeking briefing on the political question doctrine. No doubt to head off charges of hypocrisy, the Court's opinion contains an Appendix describing and seeking to distinguish its own practice, beginning with the order in the financial records litigation. Readers can judge for themselves whether the differences between the Court's practice and what the Ninth Circuit did in Sinening-Smith are so substantial as to justify the reversal. Here I want to pivot to discuss a different aspect of the case. In the course of a solo concurrence chastising the Ninth Circuit for reaching out to decide an issue not presented, Justice Thomas reaches out to address another issue not presented: whether to retain the First Amendment overbreadth doctrine. I shall not comment further on that irony, however, as there is enough that's wrong with the substance of what Justice Thomas says in his concurrence to occupy me.

Friday, May 08, 2020

It Turns Out Clarence Thomas is no Glossophobe; He's Just Polite

by Michael C. Dorf

By some measures, up to 75 percent of people suffer from glossophobia, the fear of public speaking. Yet many people who appear to be glossophobes actually might not be. I knew a college debater who, in ordinary conversation, was very quiet, leading those who didn't know her to conclude that she was shy, perhaps painfully so. However, during a debate, she spoke eloquently, confidently, and appropriately loudly. My working hypothesis was that she was not at all nervous about speaking in public; she was simply very polite and thus unwilling to break into an existing conversation.

It's probably not an accident that my debater acquaintance was a woman. A large body of social science research identifies and analyzes the causes of gender and racial gaps in participation in classroom discussions. It turns out that females and members of disadvantaged minority groups are not just more reluctant than white males to interrupt others in an ordinary conversation. They're also more reluctant to raise their hands and ask for the floor. Yet if given the floor they have at least as much of value to say as their more eager classmates.

What's true in elementary, secondary, and post-secondary education is also true in workplaces, including the Supreme Court. Sure, given small numbers, there are outliers. Justice Sotomayor is a Latina woman, but she is hardly reluctant to jump into an oral argument. Neither of the other women on the current Supreme Court is either.

However, Justice Clarence Thomas is famously quiet during oral arguments. Or at least he was until this week, when, in an accommodation to the telephonic oral argument, the rules changed. All of a sudden, Justice Thomas was asking as many questions as his colleagues. I want to suggest three lessons that we can draw from the experience.

Thursday, May 07, 2020

What Should Be Bad Enough to Make Politically Savvy People Abandon Joe Biden?

by Neil H. Buchanan

If a verifiable and undoctored video emerged this morning showing Joe Biden using the n-word repeatedly, his remaining time as the Democrats' presumptive presidential nominee would be measured in days if not hours.  And that is true even though Donald Trump is an unabashed racist, and even though a racist-enough-to-use-that-word-privately Biden would still be a much better president in every way.

If a verifiable and undoctored video emerged this morning showing Biden calling Jared Kushner "proof that the rich are stupid and hate Americans," that would generate a great deal of consternation across the political spectrum.  It would surely become a meme of the campaign, with Republicans repeatedly hammering on it even as Biden and every Democrat explained that Biden's comment was expressed in frustration, in a moment of exhaustion, as a joke, or whatever.  But it would almost surely not -- and should not -- result in Biden's being forced to withdraw, even though it would be politically damaging to some degree.

It is clear, then, that some politically difficult revelations require unsentimental people to cut and run, while others are manageable distractions.  How can we know the difference?

Wednesday, May 06, 2020

Free Speech for Robocallers? A Preview of the Severability Issue in Barr v. American Ass'n of Political Consultants

by Michael C. Dorf

Listeners tuning in live to hear Supreme Court telephonic oral arguments today will likely be most keenly interested in the cases involving claims at the intersection of religious freedom and what's left of the Affordable Care Act's employer-mandated contraception coverage. But there's another case to be argued today, Barr v. American Ass'n of Political Consultants (AAPC), and it involves the free speech rights of robots! As longtime readers know, I favor rights for sentient robots on the same grounds that I favor animal rights, so you can imagine how excited I am to see the possibility of robots getting their due in the highest court in the land.

Okay, fine. AAPC has nothing to do with the rights of robots. It's a case about the rights of robocallers--that is to say, the human beings who want to send pre-recorded or auto-dialed messages to mobile phone users. That's right, this is a case brought by perhaps the least popular demographic in America--robocallers. After doing my best to gloss over without oversimplifying the substantive issues, I'll discuss what I regard as the most interesting aspect of the case: severability.

Tuesday, May 05, 2020

Fair or Not, Biden Must Go

by Neil H. Buchanan

This column addresses the 2020 U.S. presidential election.  Because I have not written directly on this topic for the past two months, I feel the need to begin by reiterating two points that I have made many times over the past few years:

(1) In anything like a fair election (even the ones that have passed for "fair" in this country), Donald Trump would lose to anyone the Democrats nominate; but

(2) Even if he loses, Trump will not leave office.

After updating those two caveats, I will explain why Joe Biden should withdraw from the presidential race -- or , if he will not volunteer to do so, why the Democrats should ease him out involuntarily.

Monday, May 04, 2020

What's at Stake in Today's Booking.com Trademark Oral Argument?

by Michael C. Dorf

The Supreme Court kicks off its unprecedented live audio May oral argument schedule today with a nifty little trademark case. In US Patent & Trademark Office v. Booking.com, the Court is reviewing a decision by the US Court of Appeals for the Fourth Circuit, which allowed trademark registration for Booking.com, even though the term merely combines a generic term for making reservations ("booking") with a top-level domain (".com"). As the Fourth Circuit summarized its reasoning, "adding '.com' to [a generic term] can result in a non-generic, descriptive mark upon a showing of primary significance to the relevant public."

In the Supreme Court, the Solicitor General argues that the Fourth Circuit decision is inconsistent with longstanding principles of trademark law. The SG's brief cites the aptly confusingly captioned Goodyear's Rubber Manuf'g Co. v. Goodyear Rubber Co. (1888). Just as that case held that the addition of an entity designation (such as "Co." or "Inc.") does not render an otherwise generic term trademarkable, so too in our era for the addition of a top-level domain (such as ".com"). Booking.com pushes back by arguing in its brief that the Lanham Act (enacted nearly six decades after Goodyear) repudiated Goodyear's reasoning, making consumer distinctiveness the sine qua non of trademark eligibility. A brief by scholars in support of Booking.com and another by scholars nominally arguing for neither side both provide arguments in favor of this more nuanced and less per se approach.

On its face, the Booking.com case presents a classic clash between rules and standards. The government favors a relatively clean rule: no registration of a generic term with a top-level domain appended to it; the respondent and most of the amici argue for a more fact-sensitive standard that looks at consumer attitudes. The relevant statutory text is not dispositive, although it leans in the direction of the respondent. It denies trademark registration to "a mark which (1) when used on or in connection with the goods of the applicant is merely descriptive." Here there is agreement that "booking" is merely descriptive but the case does not involve a trademark for "booking." It's about "Booking.com." As a matter of pure logic, it's possible to combine a generic term with a generic top-level domain and get something that the public regards as distinctive.

Although my general inclination towards standards over rules and my analysis of the statutory text lead me to lean towards Booking.com's position over that of the government, I do not have strong views on the merits. Accordingly, I want to pivot now to asking what's at stake in the case.

Friday, May 01, 2020

The Futility of Originalist Analysis in Second Amendment Cases

By Eric Segall (Cross-posted @ Second Thoughts)

In his dissent to the Supreme Court’s dismissal of New York State Rifle & Pistol Association v. City of New York on grounds of mootness, Justice Alito wrote the following about the merits of the case: “neither the City, the courts below, nor any of the many amici supporting the City have shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.” After arguing that the plaintiffs should have won on originalist grounds, Alito then discussed the city’s justifications for its law (now repealed), finding that those purposes were constitutionally insufficient. In this post, I want to focus on Alito’s originalist comments.