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Date: Wednesday, 23 Apr 2014 11:00
By Michael Dorf

My latest Verdict column unpacks yesterday's SCOTUS ruling in Schuette v. Coalition to Defend Affirmative Action. The column speaks for itself. Here I want to add the observation that I find each of the five separate opinions unsatisfactory in one way or another.

Justice Kennedy (for the plurality of himself plus CJ Roberts plus Justice Alito): I agree with the core reasoning of this opinion but it contains an objectionable paean to the positive liberty (in Berlin's sense) of citizens to make their own decisions about race-based affirmative action. That sentiment would be easier to swallow if Justice Kennedy, CJ Roberts, or Justice Alito had ever voted to uphold an affirmative action program. But as none of them has, it's hard to take them seriously when they say that they just want the voters to be able to have their say; they want voters to have their say when they reject race-based affirmative action, but not so much when the voters choose it. The opinion also goes on about how difficult it is to tell what counts as a "racial" matter under the Hunter/Seattle line of cases. This strikes me as silly, at least in the current case, where race is expressly the topic of the Proposition.

Justice Breyer (for himself): Alone among the eight Justices who participated in the case, Justice Breyer appeared to vote contrary to his policy druthers. Props to him for that. But the rationale that Justice Breyer offers--that race-based affirmative action in Michigan was chosen by administrators rather than voters--is contradicted pretty clearly by the information Justice Sotomayor provides in dissent. And even if Justice Breyer is right about that point, he has some responsibility to decide the case on principle. What would he do if the prior regime had been local-voter-approved? The logic of his opinion suggests that he would then be with Justice Sotomayor, but her dissent has some serious problems.

Justice Sotomayor (for herself and Justice Ginsburg): I'll give her the stare decisis point. This case really does seem to follow from the rationale of Hunter/Seattle--a point that Justice Scalia also makes. But Justice Sotomayor fails to provide a good argument for that rationale. In particular, why is the baseline for analysis whatever policy a locality happens to have?  Suppose a state supreme court interpreted its equal protection clause as barring race-based affirmative action. Would that be impermissible? Would the answer depend on whether the state's EP clause pre-dated the federal Fourteenth Amendment? How could it? As I noted in my criticism of the 9th Circuit ruling in the Prop 8 case, there's no sound basis for a constitutional endowment effect. The best explanation for the 9th Circuit ruling there was that, while a state might have a rational basis for not recognizing a right to SSM in the first place, a different reason might be needed to take away the right--or perhaps the taking away manifested animus. But Hunter/Seattle doesn't rely on either of these moves. It says the taking away is problematic in itself. And that's just odd.

Justice Scalia (for himself and Justice Thomas): I agree with a lot of what Justice Scalia says here in criticism of the Hunter/Seattle doctrine but I disagree with his view that those cases were wrong even on their facts. It seems to me that Justice Kennedy has it about right when he recharacterizes those cases as really about hidden animus or invidious purpose. The Scalia opinion also contains a whole lot of unnecessary snark in support of his background view that the EP Clause requires color-blindness. Most inexplicably, Justice Scalia says here, as he has said elsewhere, that "the text" of the EP Clause "plainly requires" color-blindness. Really? The text? The text of the Fifteenth Amendment expressly forbids race discrimination with respect to voting, but the text of the Fourteenth Amendment nowhere mentions race, much less the formalistic understanding of racial equality that Justice Scalia advances. There are respectable policy grounds for thinking that color-blindness is the best understanding of equal protection (although I disagree with them), and perhaps one could make a historical argument that the original understanding of the Fourteenth Amendment requires color-blindness (although there is pretty strong evidence to the contrary), but the text is simply silent on this issue.

CJ Roberts: The Chief Justice mostly writes in response to Justice Sotomayor, apparently offended that she's implying that he's a racist. I could see why he would be offended if that's what her dissent implied, but I don't think she was saying that. She seems committed to the (odd) proposition that it would be perfectly fine for the governing board of the University of Michigan to abandon affirmative action, and that wouldn't make them racists; she just thinks (wrongly in my view) that this is problematic when done by the voters in an initiative.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 22 Apr 2014 11:00

By Bob Hockett

When I first moved to Ithaca some years ago, I was relieved by something that some people told me about television in this town – something that I suspect few would have counted as good news.  This was that it is impossible to receive television broadcasts by air in this region, such that one must seek cable or satellite service to see any television at all.

This came as a relief rather as Ulysses' being bound to the mast of his ship on approaching the Sirens is said to have relieved him.  I didn’t want to be tempted by television into wasting time, and feared that I wouldbe thus tempted were I able simply to turn on the television unthinkingly when tired and then receive eye-catching and ultimately addictive broadcasts.  The fact that cable or satellite access would require one’s affirmatively seeking it out and then waiting for weeks before installation, I figured, meant that I wouldn’t end up getting cable or satellite service, hence wouldn’t end up turning on television unthinkingly and then being captivated by bad programs that wasted good time.

As it happens, I have since acquired cable service – just seven months ago, in fact – but happily I don't think it stems from akrasia.  It is, rather, because certain cable network programs, which I had occasion to see while on sabbatical last year when renting an apartment that came with cable, proved to be brilliant.  (I doubt that I am alone in suspecting that much of the world's best creative talent is presently engaged in the writing and producing of, as well as acting in, cable television programs.  A televisual 'golden age' appears to be underway.)  It is likely in part this new status, as one who views (alas, now too much!) cable but seldom views broadcast programs, that has me interested in the lawsuit I’d like to discuss in this post.  But that’s far from the only reason, as I’ll explain in due course.

So here is the suit:  The Supreme Court today hears arguments in a casebrought by network broadcasting firms.  The case concerns yet another new communications technology’s implications for intellectual property law.  The technology this time combines cloud computing with ultrasensitive radio antennae.  With these technologies an innovative Brooklyn firm, Aereo, Inc., enables individuals who pay an $8/month fee to ‘receive,’ via antennae assigned to them on a one-person-one-antenna basis, television programs that are broadcast over the airwaves.  Customers then store these programs in ‘the cloud,’ and can download them either much later or immediately after storage, even while the programs are still airing, for viewing over the internet. 

Broadcasting networks including ABC, CBS, NBC, and Fox object to Aereo’s business model, as it appears to threaten to undercut the substantial fees that they charge cable and satellite television providers when the latter offer the broadcasters’ programs in their program packages.  The professed worry is that, if Aereo is legally able to avoid paying royalties to the broadcasters in virtue of the way its technology works, then cable and satellite firms will be emboldened to develop counterpart means of capturing broadcast programs and offering them to their customers, without having any longer to pay royalties to the broadcasters.  (Intriguingly, the leading cable and satellite firms are actually siding with the broadcasters in this suit, perhaps out of fear that some of the channels they bundle will be less compelling to no-longer-captive viewers able to access broadcast programs independently and inexpensively.)

In light of their objections, the broadcasters have brought suit against Aereo under color of the Copyright Code, demanding that Aereo be enjoined from offering its service while programs are still being aired.  As ever under the Code’s relevant language, the key question is whether Aereo is effectively transmitting network-owned ‘performances’ to ‘the public’ without having received prior permission from the owners.  The Southern District of New York effectively found that it is not, and the Second Circuit agreed in a split decision.

Cutting against the broadcaster plaintiffs is, among other things, the Supreme Court’s holding in 1984 that Sony did not transmit ‘performances’ in marketing Betamax video-recorders to customers who might subsequently use those devices to infringe television broadcasters’ copyrights in their programs (by transmitting ‘performances’).  Since Aereo customers decide whether to receive particular programs via the antennae assigned to them and then whether to record and download those programs, Aero can straightforwardly analogize their antennae-renters to Sony’s Betamax-purchasers and invite the Court to hold Aereo non-liable for much the same reasons as led it to find Sony non-liable.

Possibly cutting against Aereo, on the other hand, is the Court’s 2005 decision concerning ‘peer-to-peer’ file-sharing companies’ business model.  In that decision the Court held that, although it was the individual file-sharers who were directly violating the rights of those who held copyrights in the music and films shared as files, the marketers of file-sharing software also partook of those violations as enablers in virtue of their actively encouraging people to acquire the software whose principal purpose was to render their predicate copyright violations possible.

My own provisional view is that the Betamax decision is probably more directly on point than is the file-sharing software decision, precisely because the latter rested the indirect-infringement conclusion on the likely – and indeed encouraged – direct infringements made by purchasers of the software.  In the Aereo case, there is no claim that users of the service will be violating copyright, hence there is nothing illicit for Aereo to be ‘enabling’ by renting out antennae to its customers.  The programs in question are all broadcast gratis already over the public airwaves, and anyone with a sufficiently powerful antenna can access those programs without violating anyone’s copyright.  All Aereo does is to rent out antennae that are sufficiently powerful to do the trick.

In a certain sense, however, my own provisional read on the merits of the two sides’ copyright arguments is neither here nor there for present purposes.  I am no expert on copyright or intellectual property law more broadly, and accordingly leave full evaluation of the merits of the case qua copyright case to people like Mike’s, Sherry’s, and my colleague, Oskar Liivak.  My interest in this case is instead rooted in a distinct policy interest that dovetails with, but is not identical to the copyright interest.

The interest I have in mind has to do with certain rents that we as a public permit certain private parties to extract while using our – public – resources, and with the consequent right that we as a public have to condition extraction of such rents upon their compatibility with the public good.  I am interested in this phenomenon because it seems to me we’re not exercising that public right as we should.  We are failing to do so in a number of distinct contexts that I plan to discuss in a subsequent post, while here I’ll discuss only the broadcasting context.

The Aereo case, as it happens, involves not just one salient rent for my purposes, but two.

There is, on the one hand, that rent which is copyright itself.  Through the institution of copyright we – the public, through our laws – confer a temporary monopoly right in a particular work of art upon someone who either creates that work of art or purchases the monopoly right from the work’s originator.  The primary reason we do this seems to be that we think the work of art in question something whose creation is good, in the long run, for the broader public, but which might be under-produced in the absence of a temporary monopoly right.  The key background question in any copyright case, then, is accordingly whether the temporary monopoly rent is ultimately good not merely for the rentier, but also for us, the public, through its incenting more creating.  (I ignore for present purposes the absolutist, ‘natural right’ or ‘moral right’ justification that some advocates proffer for copyright.)

In addition to copyright rent, the Aereo case also involves what we might call sub-lessors’ rents.  As most of us have heard since our childhoods, it is ‘the public’ that owns broadcast spectrum.  ‘The airwaves’ are ‘ours’ – the general public’s – just as are public lands and waterways, and just as is the full faith and credit of the United States that ultimately backs up the liabilities of many financial institutions.  We lease exclusive rights to use specific intervals of the airwaves to particular broadcasters, in turn, and allow them to extract rents from others – others who wish to advertise – so long as they generally use their rented intervals of the spectrum for the good of the public.  Over time, the ‘good of the public’ in this context has come to be understood as free public access to that which the radio and television networks broadcast, with the broadcasters accordingly left to earn revenues by offering advertising space to other firms rather than by charging the public.

Both of these contingent rent-right conferrals upon broadcast firms, it seems to me, bear policy implications not only for the Aereo case, but also for other issues with which we as a polity have recently been confronted and will continue to be confronted.

To begin with Aereo, as just noted, the rents that we allow broadcasters to extract while using our spectrum resource are to be extracted from advertisers, not from the public.  That suggests that a service, like Aereo’s, which merely enables viewers to view more easily what they are already ‘entitled’ to view per the public’s arrangement with users of the public’s broadcast spectrum, might be expected to enjoy some presumption in its favor when a broadcaster seeks public (in this case, court) recognition of a right to charge rents to the provider of that service (in this case, Aereo).  For any such rent would be, indirectly at least, a rent charged the public – a rent charged by the tenant to the landlord, as it were.

By much the same token, because that rent-right which is copyright is conferred only insofar as it is thought necessary to encourage creative activity that we the public wish to see encouraged, there is at least some reason to presume that broadcasters’ copyrights are not infringed by Aereo.  For pursuant to our American model of broadcasting it is advertisingrevenue, not viewer subscription fees, which incent the production of materials that are broadcast over the radio-television spectrum.  And there seems no reason to suppose that Aereo’s service will do anything to dampen advertisers’ rental payments to broadcasters.  Indeed, quite the contrary, inasmuch as Aero will facilitate their reaching a broader audience.  (The broadcasters have apparently admitted in proceedings below that at least 90% of their revenues continue to come from advertisers.)

Broadening out from Aereo to other contexts in which publicly conferred rent-rights are salient, it seems to me worth noting an interesting connection between Aereo on the one hand, and the McCutcheon decision that Mike discussed a couple of weeks ago on the other.  It seems to me that that which occasions not only McCutcheon, but indeed all of the Supreme Court’s best-known campaign finance jurisprudence from Buckleythrough Austin through Citizens United on down, is precisely the fact that we permit our ‘tenants,’ so to speak – the broadcasters – in effect to charge illegitimate rents to us, the ‘landlord,’ for use of what’s properly ours.  For by far the greater part of all campaign expenditures goes to pay broadcasting firms for precious brief moments of airtime, during which insipid and downright mendacious ‘soundbites’ are tiresomely broadcast in the interest of getting candidates elected to office or ballot initiatives passed.

But if the radio-television spectrum is properly ours, the public’s, and if we as a public need frequent and sustained exposure to candidates and issue-advocates in order to form intelligent decisions as to how we should vote, then why do we permit these sub-lessor rents to be charged?  Why not instead condition our leasing out of our spectrum to lessees upon their turning the premises back over to us for specific intervals during campaign seasons, since we need those airwaves in order to function as a deliberatively democratic polity?

We might of course also wish to condition use of that spectrum by candidates and issue-advocates upon theirmeeting certain voting thresholds, in order to ensure that all candidates and advocates are ‘serious’ and stand reasonable chances of persuading large swathes of the public.  Presumably we also would wish to develop formatting norms to ensure that use of the spectrum by candidates and other advocates be done in an orderly manner that actually facilitates bona fide public deliberation.  But surely all of this could be managed with relative ease.  And the real point for present purposes is at any rate simply to remind us all that the spectrum is ours, that we lease it to broadcasters conditionally, and that there is no reason we could not include among the relevant conditions our right to reclaim it during specific timeslots during political campaign seasons.

It would be lovely, I think, were considerations such as these to figure into the Court’s thinking as it decides what to do with the Aereo case.  It would be lovelier still were the Congress and Court alike to think along such lines in future in a serious effort to salvage our now broken electoral campaign system.  I doubt this will happen, however, unless and until we first revive a robust and rich understanding of what resources are properly the public’s, and what that designation entails where law and policy are concerned.  I’ll offer more suggestions along these lines in a subsequent post that I’m titling ‘Public Resources, Private Rents.’  Please stay tuned (pun intended).

Author: "noreply@blogger.com (Bob Hockett)"
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Date: Monday, 21 Apr 2014 07:00
by Michael Dorf

Popular fiction and conventional wisdom offer the same advice: When faced with a bully, don't give in, for that will only embolden him; better to stand up to the bully because every bully is ultimately a coward. To be sure, not everyone says the bully's victim should punch the bully in the nose, especially if the bully is bigger than his victim or has bully friends. Maybe the victim can enlist others in his defense, or (contrary to the unofficial rules of the schoolyard), go to the authorities.

I don't mean to be flip about a serious subject. In the last decade or so, bullying has been (rightly) recognized as a serious problem, and there is lots of good advice out there. Here I want to briefly explore its application (or non-application) to two ongoing crises: the standoff between the federal Bureau of Land Management (BLM) and rancher Cliven Bundy and his defenders; and the conflict in Ukraine.

In each conflict, each side views (or at least portrays) the other side as the bully. Thus, in Nevada, Bundy's defenders say that the federal government is bullying him. And while Sen. Harry Reid's description of Bundy's private militia as domestic terrorists drew much of the news coverage late last week, other observers worry that by backing down from confrontation, federal officials will embolden right-wing anti-federal-government militias more broadly. In short, they would prefer that the feds stand up to Bundy's bullying.

Meanwhile, in the conflict over Ukraine, Russia portrays the Kiev government as neo-Nazis intent on persecuting Russian-speakers and other minorities, while the Ukraine government and its supporters fear that if the armed men who have seized government buildings in eastern Ukraine are not confronted, they will be further emboldened (even as they also worry that the substantial bloodshed that could result from a major confrontation would serve as precisely the pretext that bully Putin wants to send Russian tanks rolling across the border).

I don't want to get bogged down in a discussion over which side is the "real" bully in these conflicts. Here, as elsewhere, the bully tag may depend on the framing. Consider, for example, the question of whether to regard Tamils in Sri Lanka as a minority, because they constitute only a little more than ten percent of the population, or as the potential hegemon because they are the largest group in the neighboring Indian state of Tamil Nadu, which is considerably larger than Sri Lanka. This question was much mooted during the Tamil insurgency that ended a few years ago, because being the smaller party conferred victim status.

So let's put aside the question of who is the real bully as ill-defined and focus on a different question of how to navigate between two grave risks in international and domestic affairs involving the use or potential use of force: If you have a hair trigger, loss of life can follow, but if you show too much restraint, you embolden bad actors who might have been stopped by a modest show of force. To over-simplify quite a bit, we might think of these competing risks as, respectively, the risk of starting World War I and the risk of appeasing Hitler and, in the bargain, not even preventing World War II.

Seen from the perspective of the federal government, how serious is each risk in each conflict?

Let's start with the Nevada standoff. Bundy and his defenders have no legal justification for their actions. The closest thing I have seen to a cogent argument on their behalf came from Sen. Rand Paul, who appears to think that there are legitimate questions about the constitutionality of the federal Endangered Species Act. He's right about that. Although I think that the ESA is valid under the Commerce Clause, I am not completely confident that five Justices of the Supreme Court would agree, at least not in all circumstances. As a circuit judge, John Roberts indicated that he had doubts about the validity of the ESA as applied to protect a species of toad that lived entirely in one state. And so, perhaps Paul is right that the underlying basis for the government's grazing restrictions are invalid--but if so, that in no way warrants Bundy in simply refusing to pay his fines, much less in taking up arms against the federal government. He could have made his argument in court.

The very fact that Bundy's legal position is so weak heightens both risks. On the one hand, it underscores that he and his followers are extremists. Directly confronting Bundy et al really could result in a bloodbath. At the same time, however, legitimizing armed resistance as a means of protest--what another Nevadan, former GOP Senate nominee Sharron Angle, once called "Second Amendment remedies"--would almost certainly invite additional armed resistance from anti-government types who hold all sorts of unorthodox legal views.

The stakes in Ukraine are ultimately much higher. Secretary of State John Kerry's announcement that the U.S. would use "21st century tools to hold Russia accountable for 19th century behavior" predictably became the instant object of ridicule: How, exactly, would Twitter and Facebook stop Russian tanks? And, joking aside, doesn't the Budapest Memorandum actually require the United States to respond much more forcefully? But of course the Obama Administration's unwillingness to use armed force in defense of Ukraine is driven by the overriding imperative of avoiding a direct shooting war between the U.S. and Russia, which could lead to nuclear armageddon.

In the end, then, the calculations for the Obama Administration look relatively straightforward: If Bundy et al can be made to comply with the law peacefully, great, but if push comes to shove, the federal use of force would be warranted. By contrast, Putin knows that Ukraine is not sufficiently important to the West to justify military conflict, and thus he is emboldened already. Economic sanctions may have some limited effect but the biggest constraint on his conduct is the conduct itself: the Anschluss of eastern Ukraine, if it comes, could be very costly to Russia.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 18 Apr 2014 15:00
-- Posted by Neil H. Buchanan

There was an event earlier this week, held at the Urban Institute here in Washington, that captured perfectly what is wrong with "This Town."  The Tax Policy Center (TPC), a policy group jointly supported by the Urban Institute and the Brookings Institution, hosted a discussion on April 15 (announcement with video here) to mark the release of Thomas Piketty's important new book, Capital in the Twenty-First Century.

This was clearly meant to be an Important Event that should be taken seriously in This Town, so it was predictable that the organizers would invite a liberal policy wonk and a conservative policy wonk to chat with Professor Piketty about his book.  TPC Director Len Burman, an economist who is himself a veteran of these dog-and-pony shows, thus hosted Dean Baker of the Center for Economic and Policy Research (The Liberal) and Kevin Hassett of the American Enterprise Institute (The Conservative).  Because Piketty's book is being hailed by liberals, and because Burman has advised Democrats over the years (and TPC is thought to be left of center), one might be forgiven for imagining that Hassett was alone in a hostile environment.

When Hassett spoke, however, he made it clear that this was simply a group of old friends talking shop.  Hassett began by noting that it was Tax Day, suggesting that people at liberal places like the Urban Institute would celebrate that wonderful day by "bringing out the party hats."  Good yucks all around.  We're all pals here.  He even went out of his way to note that Brookings had given him an early break in his career, and he also mentioned that he and his old friend Burman had sometimes thought that they ultimately disagreed merely about a few empirical estimates, rather than anything fundamental about how to approach economics or tax policy.

Sadly, that is essentially true.  As a methodological matter, Hassett and Burman are solidly in the inner circle of orthodox economists who trade places in successive administrations.  The conversation on Tuesday, therefore, was peppered with references to "CES production functions" and various insider references to empirical economics papers, with Hassett accusing Piketty (very politely, of course) of cherry-picking from the statistical literature to support his call for higher wealth taxes.

All of which would have been merely annoying and only too predictable, had it stopped there.  Hassett, however, did not stop there.  He made two further moves that genuinely surprised me, and not in a good way.  First, he made a moral claim in the guise of a technical claim, asserting that the current distribution of consumption in the U.S. is acceptable, given the large amount of government transfer payments that allow after-tax-and-transfer inequality to be less extreme than before-tax-and-transfer inequality.  I should say that I was not surprised that Hassett tried to change the conversation to consumption from income and wealth, because that is a standard move by conservative economists; but I was disappointed that no one called him on it.

The surprising parts of that claim were the blithe assertion that the current distribution is presumptively acceptable, and the idea that we could continue to maintain that distribution with current levels of transfer payments.  No one called him on the former claim, but Piketty effectively (if subtly) responded to the latter claim.  After all, when we talk about the "transfer payments" that supposedly make things acceptable, we are talking mostly about Social Security and Medicare.  Hassett was one of the top economic advisors to the Romney/Ryan campaign in 2012, and he is generally part of the conservative chorus that claims that those transfer programs are unsustainable.  When he said on Tuesday that we can rely on those programs well into the future, so long as they are "funded," he essentially said that the way to keep the current distribution going was to raise taxes to pay for Social Security and Medicare.  When Piketty pointed that out, the audience got the joke.

But it was Hassett's second move that simply blew my mind.  As I have noted before, there is a tendency among too many people on the right to red-bait their opponents, and especially to attack academics as out-of-touch lefties.  This, however, is supposed to the territory of nameless cranks, and the Sarah Palins of the world, not economists at Establishment conservative think-tanks like AEI.  Yet there was Hassett on Tuesday, ending his remarks by invoking the conservative economist Joseph Schumpeter, who, Hassett said, "had great respect for Marx's intellectual accomplishments."  OK, so why are we talking about Marx and Schumpeter?  "So here's the interesting thing, and I found Schumpeter very, very compelling.  Schumpeter and Marx agreed that capitalism was going to destroy itself, but for different reasons."

After a slight digression, Hassett got to the point:
"Schumpeter thought that as we got richer and richer, what was gonna happen would be that all of our kids would go to universities, and when they went to universities, they would be more and more over time, presented with a professoriate that was really anti-capitalist.  ...  He thought that the problem would be that academics would be digging deeper and deeper to try to find flaws in capitalism and would be proselytizing against it all the time."
 At that moment, Hassett's final PowerPoint slide attributed the following to Schumpeter:
"He argued that the academy would become the focal point of opposition to capitalism and would subsequently breed an intellectual elite that would control the media, and ultimately politicians themselves. The academy would reflexively hate capitalism because it is the job of the intellectual to criticize, and because academics detest people who actually accomplish something. Professors would envy the wealthy, and feel themselves more worthy."
Rick Santorum would be proud!  This is the litany of grievances from the extreme right, including all of the claims about "intellectual elites" who "hate capitalism" -- and do so "reflexively" -- because their job is to find fault with people who "actually accomplish something."  There is nothing in Hassett's remarks (and his attributions to Schumpeter) that we have not heard on Fox News or from Limbaugh or Beck.  This is an attack on professors who supposedly think they're better than everyone else, who do nothing but tear things down.  But of course, he said all of this while smiling and being friendly.  So he must be reasonable when he insinuates that Piketty is helping capitalism destroy itself, right?

Hassett was quick to absolve Piketty himself of such insidious intentions, even while red-baiting unnamed people who like Piketty's book:  "I would argue that -- and it's certainly not the case that that is what's going on in this book -- but if you look at some of the discussions of the book, I think that Schumpeter would find that that is an echo of what he thought was going to happen."

So the problem is not Piketty himself, because it is "certainly not the case" that the book under discussion proves that professors accomplish nothing and simply dig deeper and deeper to find flaws in capitalism, or that this an example of proselytizing against capitalism.  Perish the thought!  But "some of the discussions of the book" are eerily similar to what worries Hassett, allowing him to suggest that capitalism will be destroyed by people who take inspiration from Piketty's book.  Piketty might not be anti-capitalist, but he is apparently a fellow traveler or an enabler, aiding and abetting those who are poisoning the minds of our young people.

This was quite a performance.  Inside the walls of a respected Washington think-tank, people sat politely while a supposedly non-extreme conservative policy wonk slandered the professoriate and red-baited those who are engaging in "some of the discussions" of Piketty's book.  Any remaining doubts about whether there is a "reasonable right" in this country dimmed even further on Tuesday.  But in This Town, it is important to smile and applaud, and act like nothing happened.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 17 Apr 2014 15:00
-- Posted by Neil H. Buchanan

Earlier this week, in a post titled "Government Size and (Non)Corruption," Professor Dorf discussed recent reports that two doctors in Florida: (1) receive the highest Medicare reimbursements in the country, (2) are major contributors to the Democratic Party, and (3) "have turned to the political system in recent years to defend themselves against suspicions that they may have submitted fraudulent or excessive charges to the federal government."

As Professor Dorf suggested, the appearance of a connection between points #2 and #3 would, under a different set of campaign finance laws, actually pose a problem for the doctors.  Looks pretty sleazy, right?  But, in our system, there is simply no need for the doctors to do anything that would rise to a quid pro quo -- which, as Linda Greenhouse recently discussed, is now the only thing that the Supreme Court recognizes as corruption, even in the case of direct political contributions.  (She points out that McCutcheon was another Roberts Special: radically rewriting the law, while pretending that they were merely limiting the reach of precedent.)  Under current law, the Florida doctors can buy as much "access" as they want, gaining sympathetic attention from politicians to deal with their problems.  No bribery is necessary.

Professor Dorf also suggested that a conservative ideologue might try to use the Florida doctors as an example to demonstrate why Big Government is so dangerous: With entitlements like Medicare tossing round so much money, of course people will try to influence government to keep the gravy train rolling.  One implication of this argument, of course, is that such small-government types should fiercely oppose McCutcheon and Citizens United, because the easier it is to prevent money from having any kind of corrupting influence on politics and politicians, the easier it should be to prevent a government of any size from being influenced by people seeking to game the system for their own gain.  In reality, we see no such support from supposed government shrinkers for aggressive campaign finance laws, but logical consistency is hardly their hallmark.

The further issue that Professor Dorf explored, however, is whether there is a connection between the size of the government and the amount of corruption that one sees in the country's political system.  As he notes, the available statistics suggest no such connection.  Countries with large public sectors, especially the welfare states of northern Europe, have low corruption, and countries with small (or essentially no) governments often are open to large amounts of corruption.  Overall, there seems to be no consistent pattern, positive or negative, between government size and corruption.

Moreover, although cultural factors might explain why some countries have low corruption, the suggestion among anti-government conservatives is that government is deeply and inexorably corrupting, so that an expanding government sector tends to sap the moral core of a nation.  But if Denmark and Sweden, for example, can go for more than a half century with very large welfare states and squeaky clean politics, then it becomes much harder to make the "big government destroys society" argument stick.

I would add one further point.  A cousin of the "bigger government leads to more corruption" argument is the claim that "people who do not pay taxes naturally like big government, and people who pay taxes vigilantly prevent government from growing."  If, this argument goes, one does not pay for government, then one would like the government to become bigger, because: (a) even if one is honest, it might be possible to become eligible for a program that a smaller government would not provide, and (b) if one is dishonest, the more government there is, the more possible it is to find something to corrupt.

Of course, if we are talking about "the 47%," that is, the people who do not have net federal income tax liabilities in a given year (although the specific number will vary), then the opportunities to buy politicians are pretty limited.  The point, apparently, is that only people with "skin in the game" will have the proper motivation to diligently prevent the political system from wasting their money.

All the way back in 2008, I argued here on Dorf on Law that the "skin in the game" argument is incoherent, because it ignores the possibility of change.  That is, even if a person really were motivated by nothing other than trying to keep the government from imposing taxes, being currently untaxed does nothing to change that person's motivation.  Even if he is currently paying no taxes at all, and even if he never has paid taxes in the past, he might still be required to do so in the future.  Better to be vigilant!

Similarly, the "bigger government corrupts" argument presumes that the only way to gain advantage from government action is by getting the government to pay taxpayers' money to private interests.  Without favors to be divvied up, there can be no corruption, right?  But this is obviously wrong.  My recent run of posts about the "baseline problem" (see, e.g., here) is built upon the obvious fact that the government sets the rules within which commerce is conducted, and that none of those rules is inherently more "natural" than the others.  If a business (or the would-be founder of a business) can imagine a change in a zoning rule, or a copyright provision, or an environmental remediation requirement, or a labor law, or a tax exemption, or any other legal requirement that stands in the way of more profits, then that business will have reason to try to corrupt the decision makers.

This is, as a logical matter, an application of the idea of "contestability," which is a defense in antitrust cases.  There, the argument is that it does not matter if a business is currently a monopolist, because it might some day find its market contested by a new competitor.  Under this reasoning, the magic of marketplace competition need only happen in the mind of the monopolist, because merely knowing that a misstep could bring on a slew of challengers supposedly keeps the monopolist from exploiting its monopoly position.

There are many well-known (and fatal) weaknesses in the contestability argument in the antitrust context.  In the context of governmment corruption, however, the logic actually works.  No matter how large or small a government, the very nature of setting the rules by which business operates opens up the possibility of gaining advantage by inducing political actors to bestow favors.  Furthermore, because so many possible favors have nothing to do with the size of government, but are simply a matter of choosing one neutral rule that happens to favor Business X over a different neutral rule that happens to favor Business Y, there is no reason to think that motivated corrupters would care about the size of government.  And, as Professor Dorf noted, the data bear out that lack of connection.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 16 Apr 2014 11:30
by Sherry F. Colb

My column on Justia's Verdict this week analyzes a Minnesota Supreme Court decision, State v. Melchert-Dinkelholding that the First Amendment precludes the criminal prosecution of someone for advising or encouraging another person to commit suicide, although the freedom of speech does tolerate a prohibition against someone assisting another in committing suicide, even with words.  The issue arose in a case in which the defendant had reached out to two suicidally depressed people over the Internet by falsifying his identity (as a compassionate female nurse who also planned to commit suicide) and urging the two people to kill themselves by hanging in front of a web-cam, so the defendant/convict could watch.  Ultimately, both of the defendant's targets did kill themselves.

The majority remanded the case to the trial court to clarify whether the conviction of Melchert-Dinkel rested on impermissible grounds (the advising and encouraging of another's suicide) or permissible grounds (the assistance of another's suicide).  A dissent maintained that the statute was necessarily unconstitutional as applied to the defendant, even if he was assisiting a suicide, because his assistance (or encouragement or advising) would have consisted exclusively of speech.

My column takes issue with some of the reasoning in the Minnesota Supreme Court's opinion and ultimately concludes that the majority was wrong.  Towards the end of my discussion, I raise the possibility that the state court might have been wrong not only in striking down the ban on encouraging or advising a suicide but also in upholding the ban on assisting a suicide.  In this post, I would like to say a bit more about that point.

One can potentially assist a person who wishes to commit suicide in a number of ways.  The suicidal individual, for example, might not have access to lethal doses of medications, and the person assisting the suicide (if a medical professional, for instance), could provide those doses to the suicidal individual.  The "assistant" could also explain to the suicidal person who does not know how to commit suicide painlessly that one effective and painless method involves _____ (with the knowledgeable person filling in the blanks).  Yet another manner of assisting could take the form of presence:  someone who very much wanted to commit suicide but was too fearful to do so in isolation might be assisted by a friend or doctor or relative who visits the suicidal person's home and sits with him as he ends his own life.

In each of these cases, the person who "assists" a suicide makes it easier for someone who wants to kill herself or himself to do so, by providing the means, the necessary information, or the comfort of company. I believe that suicide ought in some cases to be a constitutionally protected option, under controlled circumstances, for someone who no longer wishes to live:  such situations might include that of a person who is in tremendous pain that simply cannot be effectively relieved to the patient's satisfaction or that of a person suffering from an illness that will progressively rob him of memory and movement.  In other words, I believe that the U.S. Supreme Court got it wrong in the case of Washington v. Glucksberg, where it upheld a law prohibiting physician assistance in dying.

If one accepts, as I do, the proposition that the law should not categorically bar doctors from helping a person commit suicide in all circumstances, then one necessarily believes that a suicide is not always (as it so often is) a lawless act in which other people necessarily have no legitimate role to play.  It follows from this view that explaining to a person who wishes to commit suicide how one would go about carrying out the plan is, at least sometimes, the sort of speech that should receive constitutional protection.  That is, speaking in order to inform a person who is contemplating the exercise of a constitutional right about how to go about exercising the right ought itself to be a protected form of speech.

Accordingly, at least in some situations, applying a prohibition against "assisting" a suicide to speech could well be thought to violate the First Amendment.  And even if the two people who killed themselves in the Minnesota case were not among those with a constitutional right to commit suicide, it might still be inappropriate to ban speech explaining how someone would go about killing himself or herself, given the possibility of "chilling" the speech of those legitimately providing useful information to those exercising a constitutional right.  The majority in Melchert-Dinkel should therefore perhaps have struck down, instead of upholding, the section of the Minnesota statute prohibiting assistance of suicide, as applied to speech.

Contrast this with speech that "encourages" or "advises" suicide.  Assume that a particular person is feeling extremely depressed and miserable because he has been sick for a long time, is bed-ridden, and is in almost constant pain and emotional distress.  Assume now that instead of informing him of an effective method for painlessly ending his own life, his friend positively advises or encourages him to do so.  She might, for example, say "You have been feeling dreadful for months now, and you keep saying you wish you were dead, so you really should go ahead and end your life.  You said that you want to, so what are you waiting for?  You want to wait and keep suffering?  Just do it already."  That would represent advising or encouraging a suicide.

While explaining how to go about committing suicide can represent a legitimate and protected form of speech, pressuring someone to commit suicide is something quite different.  Such advocacy, rather than providing helpful information, essentially pushes someone who, by hypothesis, is very vulnerable and has yet to make up his mind, to go ahead and make an irreversible decision.  Pressuring a person to commit suicide, either by "advising" it as a good option or by "encouraging" the person who is reluctant, would seem to represent a form of incitement to imminent violence.  Though a person should have the option of ending his life in some circumstances, in other words, the decision is always so significant that no one other than the person himself should be making that choice.

To provide a very different but potentially useful analogy, many people who regard abortion as a constitutionally protected choice (including me) believed that Rust v. Sullivan was wrongly decided.  The Court in Rust upheld a rule that prohibited doctors receiving Title X (medicaid) funding from providing information about abortion to pregnant patients.  At the same time, however, the very same pro-choice advocates would likely have supported a rule that prohibited doctors from pressuring pregnant women to terminate their pregnancies.  Doctors should not be telling their patients that they should terminate a pregnancy (advice that, unfortunately, I know of some doctors readily giving when genetic testing reveals an anomaly in a fetus), as such advice or encouragement is plainly coercive, particularly for a person in trying and stressful circumstances.

The same is true, of course, for a person contemplating suicide.  For such a person, information is valuable and important in helping them make a choice that truly reflects their wishes.  But pressure is entirely unwelcome.  Someone thinking about killing himself or herself is often going to be suffering tremendously, experiencing great fear and loneliness, and hoping for someone else to make the decision for him or her. Whether that person is an unscrupulous voyeur like Melchert-Dinkel or a compassionate doctor, however, the decision -- if it is permissible at all -- should remain squarely with the patient, with no pressure brought to bear from external sources.  What Melchert-Dinkel did was wrong and nearly inexplicable, and what made it so was that he pushed two people in pain to end their lives for his amusement, not the fact that he explained how one could go about hanging oneself.  In my view, the Minnesota Supreme Court therefore got it exactly backwards.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Tuesday, 15 Apr 2014 11:30
By Michael Dorf

Last week brought news that doctors receiving very large Medicare reimbursements made very large campaign contributions to Democratic campaigns and PACs, and that in turn they may have received special consideration to avoid punishment. I haven't checked out the rightwingoverse reaction to the story, but it wouldn't surprise me if it went something like this: Aha! This sort of thing shows that government-funded health insurance is rife with fraud and therefore people (like those left-wing crazies at Dorf on Law) who argue for Medicare for All would simply drive up the price of health care.

Well, okay, they probably aren't mentioning DoL expressly, but I would be surprised if that's not the general reaction. Here I want to take it seriously.

My first reaction is that this is chiefly a corruption problem, rather than a government spending program. Supreme Court decisions like Citizens United, and now McCutcheon, hold that wealthy individuals and corporations have a First Amendment right to use their wealth to influence government policy--including government policy that enables these individuals and corporations to accumulate greater (or to protect existing) wealth. I don't know whether the doctors discussed in the Times article broke any laws, but if they did, that was probably due to ineptitude rather than necessity: Our system of campaign finance permits just about anything short of an express quid pro quo, so that a well-advised donor can purchase just about all of the influence he or it wants to purchase without breaking the law.

But wait. Some small-government conservatives say that the opportunities for corruption are chiefly a product of big government. According to this argument, if we had merely a watchman state, there would be little to be gained in the way of government contracts or regulation avoidance by bribery, legal or illegal.

Although frequently offered as an axiom, that's actually an empirical claim that we can test rather easily by comparing data about social spending and corruption. And when we do so, it turns out that the claim is false.

Consider that Denmark had the second highest social spending per capita as a fraction of GDP and tied for the lowest level of corruption.  In general, high rates of (public) social spending tend to correspond with low corruption, and vice-versa--although the relation is hardly linear. Culture, politics, and other factors appear to be the main determinants of corruption.

So the data confirm my initial reaction. The corruption story (assuming that's what it is) certainly does not indict single-payer health insurance. The Supreme Court is a more likely suspect.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Monday, 14 Apr 2014 12:00
By Michael Dorf

The latest issue of the New York Review of Books includes a review by Cass Sunstein of the new book, Would You Kill the Fat Man? The Trolley Probelm and What Your Answer Tells Us About Right and Wrong, by David Edmonds. (Only the very beginning of the review is available for free online. The rest is behind a subscription paywall, so if you're not a NYR subscriber, you'll have to trust me for my description.) The title of the book refers to a famous hypothetical scenario in moral philosophy, a variant of the so-called "trolley problem." In this post, I'll very briefly explain the problem, and then suggest that Sunstein's otherwise fair-minded review omits (express) discussion of an important feature of moral reasoning.

A) In the classic trolley problem, you see a trolley hurtling out of control towards five people tied to the track. You stand by a switch. If you throw the switch, you can divert the trolley to a second track, but there is one person tied to the second track. Do you throw the switch, resulting in the death of the one but the sparing of the five?

B) In the fat-man variant of the trolley problem, you are standing on a footbridge overlooking a track, where you see a trolley hurtling out of control towards five people tied to the track. Next to you is a (very) fat man. If you push him off the footbridge, his mass will block the trolley before it can run over the five. Do you push the fat man, resulting in his death but the sparing of the five?

People have various moral intuitions in the two cases. Act-utilitarians think it morally permissible or even obligatory to throw the switch and to push the fat man, because in both cases, the action leads to a better result: the death of only one, rather than five. Some act/omission deontologists think it morally impermissible to throw the switch or to push the fat man because in each case, they would be deliberately acting in a way that causes a death, rather than merely failing to act to save five lives. Most interestingly, many people (including me) think that it is morally permissible to throw the switch but morally impermissible to push the fat man. The book, the review, and the substantial literature on "trolleyology" explore the reasons for these intuitions (and others regarding still more variants), in order to discern either what morality really entails or, as in Sunstein's case, to question whether this whole method of inquiry is likely to lead to moral truth.

I'll come to what I think Sunstein omits shortly, but first, I should give the standard explanation for what I called the most interesting pair of intuitions--that it's permissible to throw the switch but not to push the fat man. The explanation goes under the heading of a doctrine--originally traceable to Catholic theology but now part of the general philosophical discussion--called "double effect." The doctrine allows that it is sometimes morally permissible to intentionally take an action that has as its aim averting one evil, even though it will also cause some other evil.

Real-world applications of the double-effect doctrine include pain medication that has the side effect of killing the patient (which is distinguished from taking an overdose for the express purpose of suicide), causing "collateral" deaths of civilians in wartime (so long as the use of force targets military combatants and collateral deaths are not disproportionate), and more controversially, abortion.

In trolleyology, throwing the switch is an instance of double effect, because the person who throws the switch intends thereby to divert the train in order to save the five, even though doing so will have the regrettable side-effect of killing the one. Pushing the fat man is not an instance of double effect, because the fat man's death is not a side-effect of saving the five; it is the means of doing so.

As I said, Sunstein's review is generally fair, although he himself appears to be a rule-utilitarian. He thinks that if there is a moral distinction between throwing the switch and pushing the fat man, it is one that has to do with following general rules that, in the aggregate lead to the greatest good for the greatest number, even if, in particular cases, following such rules leads to bad results. Thus, he acknowledges that there is overall utility in following a rule that one should not push people off of bridges into the path of hurtling trolleys, and that perhaps the benefits of following that rule, as a rule, outweigh the costs of occasionally forgoing the greater good of saving trolley passengers.

But Sunstein ends on a note of skepticism. The moral intuitions we have, he says, are heuristics that developed in ordinary circumstances. They may be "misfiring" in odd cases like the fat-man problem. Put differently, perhaps the rule that a rule-utilitarian ought really to be following is not "don't push people off of footbridges in front of trolleys" but "don't push people off of footbridges in front of trolleys unless doing so will avert a greater harm." The fat-man problem, in this view, shows that our intuitions do not perfectly map onto the right rule-utilitarian rules.

Yet Sunstein's skeptical account of trolleyology omits any express discussion of what is usually a key feature of deontological reasoning and indeed, of moral reasoning more generally. Deontologists do not typically say that each of our moral intuitions generalizes into a true moral principle. After all, our intuitions sometimes tug in different directions. Thinking about Jim Crow may lead one to think that legal distinctions based on race are wrong, but then thinking about race-based affirmative action in public universities may lead one to modify that principle to say something like race-based legal distinctions that subordinate traditionally disadvantaged minorities are generally wrong, but that ameliorative race-based distinctions are more often acceptable. Or not. One might conclude that color-blindness is the right principle after all.

My point here is not to argue for any particular principle, but to note that trolleyology is not just about exploring our intuitions; it's about trying to find principles that reconcile our intuitions, and then, if that cannot be done, abandoning some of our intuitions in favor of more deeply held ones. It aims at reflective equilibrium, not naked intuitionism. Thus, the title of the post: We want to reflect on the fat man, not simply react to his case.

Sunstein titles his review "How Do We Know What's Moral?", and he implies in it that the method of interrogating our intuitions is not a reliable means of finding out. But he comes up short in two ways: First, his contention that our pre-reflective moral intuitions can be wrong is not an indictment of deontology, because deontology is not committed to the correctness of pre-reflective moral intuitions.

Second, to the extent that Sunstein's argument is more radical--i.e., to the extent that he thinks that our moral intuitions have nothing to do with moral truth but are simply heuristics that conferred survival value on groups of humans--Sunstein undermines not simply deontology but all of morality, including all forms of utilitarianism. After all, the claim that morality consists of maximizing utility is itself an appeal to moral intuition--a kind of meta-heuristic. If the intuition that it is wrong to push the fat man is simply a misfiring of a hard-wired rule that conferred evolutionary advantage, then so is the intuition that it is wrong to abstain from simple actions that could save more lives than they sacrifice.

The reduction of morality to heuristics is a kind of global moral skepticism that swallows all morality, not just deontology. Sunstein's (implicit) argument against double effect and deontology thus throws out the baby with the bathwater. If he really is a moral skeptic, then he would have no moral problem with throwing out a baby, but I don't read him to embrace moral skepticism, except perhaps inadvertently.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 11 Apr 2014 14:31
-- Posted by Neil H. Buchanan

Yesterday, in my Verdict column and here on Dorf on Law, I argued that now is the time to push for a single-payer national health care plan, one version of which is Medicare for All, which would simply expand the covered population of the popular Medicare program from over-65-year-olds to everyone, regardless of age.

The first-year enrollment numbers in the ACA's new health care exchanges -- the much-touted 7.1 million, which met and exceeded the (somewhat arbitrary) 7 million target -- were significant because that was the last moment at which the system could have simply failed on its own terms.  That is, we have already seen the implementation of certain aspects of the law, such as the (very, very popular) inclusion of children up to age 26 on their parents' policies.  Such features could have been repealed, as a technical matter, without destroying the law itself.

The only question would have been the politics: If Republicans had decided not to "repeal Obamacare," buy instead had tried to repeal certain features of the law, would the public have let them do it?  Almost certainly not.  There is a reason that Republicans continued to talk about the law in the abstract, and focused on things like the "mandate."  They were getting no political traction for undoing the substance of what the law was trying to do.

If the early enrollments had been too low, however, that would have changed everything.  Something like a death spiral would have begun, with insurance companies needing to increase their rates and reduce their offerings, which would have caused some people to drop out and others not to sign up, which would have led to still higher rates, and so on.  We now know that the system reached critical mass.  There are still plenty of things that can go wrong, and plenty of poison pills that the Republicans could try to sneak through.  But this is a "live birth," and the wrangling that will follow is mostly about details.

One fly in that ointment is a case called Halbig v. Sebelius, which was recently argued before the DC Circuit.  There, a Koch-backed legal team is trying to exploit a supposed gap in the statute that purportedly makes it illegal for the government to offer subsidies to people who buy their insurance through exchanges that the federal government has set up.  Because the federal government only sets up exchanges after a state (with a Republican governor) refuses to do so, this case could hang on (among other things) whether the appellate court -- and ultimately the Supremes -- interprets the law such that federally-built exchanges can be deemed surrogate action on behalf of the state governments.  A ruling against the Administration could effectively negate a large number of enrollments, and thus put us back in danger of a death spiral.

Of course, no such challenge could have been possible, had we adopted national single-payer.  This lawsuit, like the other major challenges to the ACA, is possible entirely because the law has so many unnecessary moving parts, which can be challenged from many different angles.  For example, the famed NFIB v. Sebelius case, under which C.J. Roberts allowed the "mandate" under Congress's taxing power, would not have happened had there been no mandate to challenge.  And the mandate itself was necessary to allow a system built around private insurance companies to provide nearly-universal coverage.

Similarly, the Hobby Lobby case, which challenges Congress's authority to order corporations to provide health care with features that upset the corporations' major shareholders (such as the ACA's requirement that all policies provide birth control without a co-pay), has constitutional resonance only because the ACA continues to be built around employer-provided health insurance.  (This historical accident might be the "original sin" of our health care system, because it creates "job lock" and other unnecessary problems.)

It is tempting, therefore, to think that an additional "cost" of going for a half-measure like the ACA, rather than going for national single-payer in 2010, has been that we have been left to deal with these unnecessary nuisance suits.  Medicare is hitting its 50th birthday, and it is not open to Constitutional challenge.  Yes, as some readers discussed in the Comments on my post yesterday, culture wars politics would affect Congress's decisions about what to include in expanded medical coverage.  That would be a matter of pure politics, and some of it might not go well, but it is arguably better to hash that out in Congress rather than through this series of ridiculous lawsuits.

Or so I wanted to think.  Honestly, however, it is hard to imagine that the people who have been pushing these anti-ACA lawsuits would have said, "Oh well, I guess there's nothing we can do about single-payer.  Medicare is bulletproof."  I mean, consider just how absurd the activity/inactivity distinction was -- not just to liberals, but to conservative legal scholars as well -- when it was first raised in NFIB.

If these people could imagine getting five justices to sign onto that incoherent mess, why would they not imagine that other legal doctrines could be invented to declare that, say, Medicare is a violation of property rights, or that payroll taxes are theft?  There is already a strong contingent of people, some of whom were put on the federal bench by George W. Bush, who want to revive the Lochner era's expansive version of freedom of contract.  Why would they not use expanded Medicare as the wedge to push that agenda?

So, even though the economic costs of the ACA, relative to single-payer, are unbelievably high, I no longer think that the parade of bad constitutional challenges was an additional cost of adopting the go-it-slow strategy.  Motivated, well-funded people with friends on high courts will always try to use whatever raw material is available.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 10 Apr 2014 15:00
-- Posted by Neil H. Buchanan

Although I have occasionally mentioned single-payer health care, and done so quite approvingly, I am not sure if I have ever directly and simply said that I support it.  Whether or not I have done it before, I did so quite explicitly today in my Verdict column.  To the extent that I am doing something in that column beyond merely stating the obvious (that I have been in favor of single-payer all along), the timing of the column is probably what matters most, for reasons that I will explain in this post.

The big news in the last few weeks on the health care front has been the surprising success of the Obama Administration in getting more than 7 million people to sign up for coverage on the new health care exchanges.  This is big news, because it undermines the only real plank of the Republicans' 2014 electoral platform.  (Sorry, but "Obama the imperial president" is just not going to fly.)  Seven months before the mid-term elections, the Republicans are finding that their deeply held belief that the Affordable Care Act will surely be a horrible failure is turning out to be wrong.

One way to respond to that news is to argue with the facts.  As they did with unfavorable polls before the 2012 elections, and as they still do with climate science, and as they still do with evolution, Republicans have been denying reality -- frantically claiming that the signups for the ACA have been inflated, or that they are not "new enrollees," or whatever.  Even Jon Stewart, bizarrely, gave Republicans some aid and comfort when he expressed sketpicism that the announced number was 7.1 million, as against a goal of 7 million -- or, as he put it with eyebrow arched, only 1.4% above the target.  It is hard to know why anyone would find it strange or suspicious that people who have achieved a goal made a big push that would get them just over the finish line, but "haters gonna hate," I guess.

In any event, none of the attacks on the facts are holding up to scrutiny.  And, honestly, even if the enrollments had totaled only 6.9 million -- and do you think that anyone on the right (or on Comedy Central, for that matter) would be saying that it was no big deal to have fallen only 1.4% short? -- the important point was that the enrollments needed simply to be big enough and diverse enough (by age, health status, and so on) to allow the system to be actuarially sound, keeping the private insurance companies from losing money.  And that is the big news.  The 7 million target was the best guess of what it would take to comfortably conclude that "nationalized Romneycare" would succeed.  At this point, we have every reason to believe that it will.  For Republicans, and especially their Senate candidates, that is bad news.  For everyone else, that is a huge step forward.

Short of trying to deny reality, the Republicans only other possible response is to propose an actual alternative to the ACA.  They have never done so, because there is no alternative to the ACA that preserves the private insurance companies AND allows Congress to require those companies to cover people with pre-existing conditions, which is the one goal that nearly everyone agreed upon from the beginning.  As Paul Krugman pointed out on his blog earlier this week, some Republican staffers are finally admitting that there is no conservative alternative to the ACA, because the ACA is the conservative alternative to single-payer national health care.

All of which brings us back to the question of why the timing matters, in terms of endorsing the single-payer "Medicare for All" alternative.  Why now?  It might seem counter-intuitive to argue that Democrats should immediately try to undermine what is arguably their greatest social accomplishment in more than a generation.  Why not let it work for awhile, and see how it goes?  Let us at least enjoy the reality that many people who would have died too soon, or who would have been financially devastated by medical care costs, or both, will see a better future than would have awaited them had the health care system continued on its previous course.  Right?

There is no doubt that things are better now than they were before.  The danger all along, however, was merely a specific example of the classic liberal-versus-radical, incrementalist-or-absolutist conundrum.  Yes, we have improved matters considerably by taking the cautious Obaman approach.  But doing so inevitably becomes (especially for people like Obama's advisors) not an argument to take the next step, but to settle all-but-permanently for less.  (See, e.g., the inadequate fiscal stimulus program of 2009-10.)

Do we really lose much by settling for less, especially if we have achieved the important goal of meaningfully improving people's physical, mental, and financial health?  The answer is yes, we really do lose a lot by waiting to switch to a single-payer system.  Under other circumstances, I might have devoted some time in my Verdict column to rebutting specific arguments against single-payer plans ("You'll have to wait in long lines, just like in Canada!!" and all that), but here is where being a macroeconomist is helpful.

As I pose the question toward the end of my column, do we really want to spend an extra $1 trillion per year, "rising every year in perpetuity" (projected to reach $1.5 trillion in 2023, and continuing to rise), to keep private insurance companies in business?  To put this in perspective, the gross domestic product last year was about $17 trillion, of which we spent almost 18%, or $3 trillion, on health care.  More than one trillion dollars of that was the extra cost for having a non-single-payer system.  The ACA is slightly more expensive overall than the system is replaces -- although it reduces the federal deficit, due to its dedicated taxes -- precisely because it covers more people.  But under either alternative to single-payer, the country throws away about $1 for every $3 it devotes to health care.

Maybe a more vivid way to think about it is this: The "gross state products" of Tennessee, Iowa, Kansas, Minnesota, Missouri, Nebraska, and both Dakotas -- or just the entire economy of Texas -- currently add up to the same extra amount that we needlessly spend on keeping the current duct-tape-and-bailing-wire health care ecosystem afloat.  I know that people on the coasts like to ignore "flyover country," but we actually benefit from their economies!

In some ways, the enormity of the waste in both the pre- and post-ACA private health care systems becomes its own argument not to do anything.  It seems impossible to imagine that one out of every seventeen workers is doing something pointless and unnecessary (and, in many cases, counter-productive).  And it certainly seems too good to be true that we could really save one third of our health care costs.  The fact is, however, that some countries do even better.  For example, the Brits and the Swedes both spend 2% of GDP less than France, which is the basis that I have used for the comparison of the U.S. with the next-most-expensive country.  If anything, the estimate that $1 out of every $3 is wasted is too low.

I note in my column a study by a UMass economist, Gerald Friedman, which forecasts the potential savings going forward of a specific proposal to expand Medicare, H.R. 676.  Importantly, Friedman also devotes a fair amount of effort showing how the expansion could be financed, in a progressive way.  This is important, because the current Medicare system is underfunded only in the sense that the specific tax that is supposed to support the whole system has turned out to be too small, not in the sense that the economy could not afford to support it from general tax revenues.  Too many people have misused the financing projections for the current Medicare system to say that we cannot afford to expand the system to other Americans.

The larger point, however, is that we cannot afford not to do so.  The "third way" types running the show in the White House (and in Hillary Clinton's nascent campaign) will surely counsel caution and prudence, saying that we must wait.  Waiting, however, is hardly a "cautious" move, unless one considers it prudent to waste the equivalent of the output of eight states in the middle of the country.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 09 Apr 2014 11:00
By Michael Dorf

Flash Boys: A Wall Street Revolt, is the latest book by Michael Lewis, and like his other work--e.g., Liar's Poker; Moneyball; The Blind Side; The Big Short--it's a great read. Flash Boys was previewed in last week's NY Times Magazine, and has been all over the news, so I will only summarize it very briefly here, before coming to my two main points.

Flash Boys tells how, mostly since the onset of the Great Recession, stock trading has become systematically rigged so as to take money out of the pockets of investors and put it into the pockets of "high frequency traders" (HFTs) and the proliferating exchanges and big banks that (literally) rewired the trading rules so as to advantage HFTs.  Lewis explains that the HFTs use superfast computers and connections to deploy various arbitrage schemes that add no value to the market. The scheme that gets the most attention in Flash Boys is electronic front-running.

Here's how it works. Let's say that a big institutional investor places an order for 100,000 shares of Microsoft stock at $40/share. The broker will route the order to multiple exchanges, ostensibly so that the investor gets the best prices, but really so that the HFT algorithms can "see" the order first on one exchange (or in a "dark pool" run by one of the Wall Street banks) and then, using their lightning speed, zip around to the other exchanges to buy stock at $40/share (or less) before the institutional investor gets there, then sell it to the institutional investor at a higher price, such as $40.01 or whatever. By doing this sort of thing constantly, the HFTs are able to exact a small "tax" on just about every large transaction, and thus siphon off billions of dollars annually.

Flash Boys recounts how Brad Katsuyama of Royal Bank of Canada began to notice that something was awry in the markets and eventually traced the problem to HFTs. He then assembled a team of traders and technologists to create a new exchange, IEX, that is designed so as to deny HFTs the opportunity to extract rents from investors. Joe Nocera noted recently in the NY Times that Katsuyama wasn't the first person to try this and that Lewis wasn't the first to write about it, but it's fair to say that the spotlight that the new book shines is considerably brighter than the attention previously paid to the issue by the mainstream media.

Now, on to my observations.

(1) The Unsuccessful HFT Counterattack on Flash Boys

Flash Boys has barely been in print for a week, but predictably, the backlash against Lewis has already begun. I have no deep knowledge of this subject matter, but I did talk to people who know a lot more than I do, and they confirmed my basic impressions. Based on the obvious flaws in what his critics are saying, it looks to me like Lewis is right and his Wall Street/HFT critics are wrong. I've scoured the internet for the responses of the HFT industry, and found that the main talking points of the defenders of HFT are weak.  (For a good summary with links to other sources, I recommend this Bloomberg Businessweek article.) Here are the main points, followed by my analsysis.

--High-frequency trading has dramatically reduced costs to investors compared to the old method of filling orders by hand.

This claim is ubiquitous but it conflates two very different phenomena: computerization and high-frequency trading. Lewis is not against computerization, nor are the heroes of Flash Boys. IEX itself is a fully computerized exchange. The claim of Flash Boys is that most of the HFT activity in the electronic exchanges serves no legitimate investment purpose, and can only be seen as a way of exploiting microsecond-or-shorter-length information advantages so as to extract rents from investors. Lewis and IEX can grant that today's investors keep more of their money than investors on the old manual exchanges did, but their point is that they are now unnecessarily giving up a chunk of cash to HFTs.

--High-frequency trading increases market liquidity.

The book pretty clearly demolishes this claim. Microsecond-by-microsecond buying and selling does not add liquidity. In lots of other circumstances, middlemen serve a very valuable economic function by bringing together sellers and buyers who otherwise would not have found each other. Flash Boys allows that daytraders and the like could serve that function in a stock market that is otherwise illiquid. But he also explains how the vast majority of HFT activity does not add liquidity; insofar as it increases bid/ask spreads, in fact it prevents some trades that would have occurred in its absence. The closest thing I could find to an attempt to rebut this among the Lewis critics was stuff like this from a Financial Times review:

--"Lewis counters [the claim of liquidity enhancement by saying] that HFT creates volatility and a mind-bending amount of activity, not liquidity. But he carries the reader so firmly toward this conclusion that one ends up feeling a bit manipulated, and wondering whether his paean for IEX, the new exchange, is really justified."

Did you see what the reviewer did there? He doesn't actually offer any reasons or evidence against Lewis's view. He just says he feels manipulated by the strength of the narrative.

--High-frequency trading is not as lucrative as Lewis contends.

I came across three versions of this claim. One is that Lewis's numbers are wrong. I don't have the expertise to judge this, so I'll just note that if that's true, then it's hard to see why the people whose business is threatened would feel so threatened. The second version states that, even before IEX opened, HFTs were making less money than they did just a few years ago. Assuming this is true, that may be because the banks have figured out how to capture some of the rents that were formerly going to HFTs or because the competition among HFTs is so fierce that they incur high costs (such as the cost of ever-faster hardware and straighter electronic paths between exchanges). If so, that would not mean that the rents extracted from investors have diminished. The third version of this claim compares the total amount of money made by big Wall Street players to the amounts made by HFTs, and notes that the former is a substantially larger number. At best, this means that the HFTs are effective parasites, extracting enough from the investor hosts to feed themselves but not so much as to kill the hosts.

--Flash Boys and IEX (for example, in this admittedly weird video on its website) give the misleading impression that HFTs prey on mom and pop investors but tactics like front-running only work against large orders.

Oh come on. Most small-time investors who own stock do so through large funds, such as retirement funds, that are the prey for HFTs.

--A good Michael Lewis story involves a virtuous outsider (Billy Beane; Brad Katsuyama) challenging the conventional wisdom of the complacent insiders (baseball scouts;  HFTs and the Wall Street banks) but the HFTs are themselves outsiders, not insiders.

Lewis acknowledges that HFTs are not Wall Street insiders, but in any event, so what? The HFTs can be both outsiders and villains.

Accordingly, the Wall Street rebuttal of Flash Boys strikes me as quite weak.


(2) The Real Problem with Flash Boys

Flash Boys is thus an entertaining read and largely impervious to the criticisms from HFTs and Wall Street. But it is nonetheless problematic in a very different sort of way.  Buried within Flash Boys is a strongly anti-regulatory bias.

Flash Boys ends in a state of uncertainty. IEX is open for business and drawing serious customers, including, for a few days at least, Goldman Sachs, but its future is not guaranteed. The Wall Street banks (including Goldman) could still freeze IEX out. If Katsuyama and IEX fail, the book implies, then that will be that.

But doesn't this overlook an obvious alternative? Surely the SEC or Congress could change the rules so that publicly traded companies must be traded on transparent exchanges that use rules like the ones that IEX uses. And indeed, some industry insiders are already worried that state and federal regulators will will move under existing laws--spurred on by the pressure generated from the media blitz around Flash Boys.

Yet in Flash Boys itself, the government appears chiefly as a malign force. A sub-plot that is only tangentially related to the IEX story involves the federal (and then state) prosecution of Sergey Aleynikov, a Russian programmer who innocuously took some largely useless code with him after he left Goldman Sachs but was inexplicably tried and convicted for doing so. It's not clear what the Aleynikov story is even doing in Flash Boys, except to show that a bunch of ignorant jerks run the government. The SEC makes a brief appearance in the book when Katsuyama visits, but despite the interest from a few old-timers, the younger SEC staff side with the HFTs--and Lewis explains their position by surmising that they plan to go through the revolving door to work for HFTs after their brief government stints are over.

Indeed, even if the government wanted to do the right thing, Lewis seems to think it simply can't. The world of HFTs itself was launched by a 2005 reg that responded to earlier shenanigans, which in turn exploited opportunities created by an earlier set of regulator interventions, and so on, back to the earliest days of financial regulation. As Lewis sees things, any time the government intervenes to cure one problem, it creates opportunities for the better-resourced financial community to do even more damage.

Is that a sensible view of the world? Sometimes it is.  The late great tax law scholar Marty Ginsburg once wrote that "every stick crafted" by the IRS "to beat on the head of a taxpayer will, sooner or later, metamorphose into a large green snake and bite the Commissioner on the hind part." Financial regulation is a similar domain, where firms and individuals with a lot of money at stake will do their darndest to exploit whatever openings the law leaves.

But Marty was exaggerating to make a point. Some regulations are harder to evade than others. And the possibility of perverse consequences hardly counts as a reason for regulators to throw up their hands and invite anarchy. Unless, that is, you are an economic libertarian.

Despite his willingness to go after Wall Street, Lewis does seem to be an economic libertarian. In Flash Boys, he says that salvation will come, if at all, from market forces let loose by Katsuyama and IEX. In Boomerang, a travelogue sequel to The Big Short, Lewis more or less endorses the Tea Party view of what went wrong in the leadup to the financial crisis--casting profligate Greek borrowers and American municipalities as the chief villains in a morality play that doesn't exactly let the banks off the hook, but sees their worst sin as one of stupidity and short-term thinking.

That's also the main story line of The Big Short: The morons tasked with running the big Wall Street banks were too shortsighted to see that their proprietary portfolios were full of worthless CDOs and synthetic CDOs that would come a cropper as soon as the real estate bubble popped, while a handful of clear-eyed outsiders had the foresight to find ways to short the market, even when a looming depression created the risk that a successful bet might go unpaid for want of solvent counter-parties. That was a great story, but it overlooked the role of deregulation--especially the repeal of Glass Steagall--in turning mega-banks into the sorts of institutions in which people could get rich by issuing crap loans, even as they thereby imperiled the broader economy and the banks themselves.

Conversely, if Lewis didn't have so much faith in the beneficence of the market (if only it would work its magic as God intended), then he might regard the "toll" that HFTs extract from transactions as a kind of private Tobin tax on financial transactions that discourages constant trading and encourages buy-and-hold or "value" investing. I wouldn't endorse this view myself. If it's a good idea to impose a tax on financial transactions, then I'd prefer to see the proceeds go to more socially beneficial purposes, but it's telling that Lewis never even considers the possibiilty that the "investors" who are being ripped off by HFTs are themselves not exactly adding value by allocating capital to those who can profit the most from it.

Don't get me wrong.  Michael Lewis is a wonderful writer and he has a knack for finding people whose individual stories provide a window on larger events. But that window tends to open on a particular view of the world in which the government as regulator is either absent or part of the problem. Such stories exist, of course, but so do stories of successful regulation. I hope Lewis sees fit to tell one of those one day.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 08 Apr 2014 12:00
by Sherry F. Colb

First, the good news.  The New York Times ran a prominent story about the company "Beyond Meat," and the story highlighted the fact that the flavor and texture of the company's plant-based chicken strips are indistinguishable from the taste of the charred flesh of an actual slaughtered bird.  This is progress.  So what's the bad news?  The bad news is that the person tasked with writing the story is plainly neither vegan nor favorably inclined towards veganism,, and she therefore presents the story in a way that treats "real" chicken as the gold standard.  And by "real" chicken, I mean the actual muscle tissue of what was once a living and breathing animal before she or he was slaughtered at the age of seven weeks old, at which time birds still make the "cheep cheep" sound of baby chicks, because they are, in fact baby chicks.

How do I know that the reporter is neither vegan nor even apparently open to veganism and the many compelling reasons for it?

First, she says nothing in the article about the fact that "Beyond Meat" is a vegan company or the fact that its chicken-free strips are vegan -- they contain no animal ingredients, as opposed to "vegetarian" (which, in today's usage, typically refers to "lacto-ovo vegetarian," a word that actually means "animal-free except for the ovulatory and lacteal secretions that it contains").  Indeed, most strangely for an article describing a vegan item, the article nowhere even uses the word "vegan."  It is difficult to know whether the reporter has simply never heard of veganism or whether she prefers not to use the word, for some reason, but either way, it is misleading to speak about a vegan company like Beyond Meat and a nonvegan company like Morningstar Farms as though they are relevantly equivalent.

Second, the story begins with a plainly slanted account of a mix-up in some Whole Foods stores.  Some of the retailer's kitchens had accidentally reversed the labeling of its two curried chicken salads, one of which had "real" and one of which contained "fake" chicken.  As a result, customers would have been led by the labels into purchasing the wrong item.  Does the reporter note that customers seeking to avoid animal flesh might have been  upset to learn that they had consumed a bird's corpse due to the erroneous labeling?  No.  The article completely ignores this problem and mentions only the plight of people with allergies mistakenly consuming the vegetarian chicken salad.

Third, the reporter not only calls the vegan strips "fake" meat but defends her choice to do so in the following way:  "[p]roducers hate the term ["fake" meat] but have not come up with a catchy alternative to 'plant-based protein,'" adding that prior to such convincing "fake" meats, "desiccated and flavorless veggie burgers were virtually the only option for noncarnivores."  Note again the invisibility of vegans in this account -- there are carnivores and noncarnivores, and virtually the "only option" for people who refrained from slaughterhouse-sourced foods were disgusting veggie burgers (rather than, say, delicious fruits, vegetables, nuts, breads, pasta, rice, and greens, accented with plentiful herbs and spices).

I'm not sure what enables the reporter to decide what qualifies as a catchy name, but I know of no vegans who believe that "fake meat" meets the "catchiness" test.  Many of us refer to vegan meat (also known as "plant-based meat") as animal-free meat, slaughter-free meat, nut-based meat, grain meat, etc.  And none of these foods is  "fake."  All are made out of real ingredients that happen to come from the plant kingdom (which requires no use of slaughterhouses) rather than from the animal kingdom.
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If one were truly going to be exposing fraud in the use of language, we might point to the peaceful pretense in packages of animal parts called "chicken," which give no hint of the violence behind the packaging.  We could note that saying "chicken," implies some undifferentiated substance from which we may partake, rather than "chickens," a term that highlights the fact that we are consuming the body parts of individual animals whose lives mattered to them and were taken from them when they were babies.

Incidentally, the word "meat" originally referred to the edible part of something (rather than its shell), which is why we can coherently speak of "coconut meat."  We can therefore honestly call vegan meats what they are -- real food made without using a slaughterhouse.

Fourth, the reporter seems to have little sense of what motivates an increasing number of consumers to become vegan and thus to choose to consume only animal-free, vegan products.  She states that "[d]emand for meat alternatives is growing, fueled by trends  as varied as increased vegetarianism and concerns over the impact of industrial-scale animal husbandry on the environment."  To attribute the demand for animal-free products to vegetarianism, however, is, uninformative -- it says that people are demanding animal free products because there is a trend in people consuming animal-free products.  She then refers to concerns about the impact of industrial-scale animal agriculture on the environment, while ignoring that the environmental impact of animal agriculture is not specific to factory farming but is true of all animal agriculture.

Later in the article, quoting someone talking about why younger people are consuming vegan products, the reporter says that "'younger consumers ... seek foods that fit an overall lifestyle, be it for health reasons or personal ethics.'"   The phrase "personal ethics" implies that the vegan movement for non-violence is just a personal matter.  I like nonviolence, but you prefer violence, and both preferences are equally valid.  But ethical vegans take the position that the violence against animals solicited by consumers who purchase animal ingredients is unjust and wrong, not just "wrong for me," but wrong, period.  Similarly, sex discrimination is not just illegal and opposed to my "personal ethics" but immoral.  People who ordinarily believe in right and wrong seem to become moral relativists only when faced with the prospect of changing the way they eat.

I promised in the title to talk about Miranda warnings, and I shall do so now.  People have long puzzled over why suspects in custody who hear the Miranda warnings so frequently give up their right to remain silent and ultimately tell the police self-incriminating information.  One theory is that the suspect is not really "free" to remain silent, but while this may play a role in the decision to speak, I think the answer may be far simpler.  As Yale Kamisar has explained, when the person telling you that you have the right to remain silent is someone with a vested interest in your giving up that right to remain silent, then he or she will manage -- in delivering the message -- to make silence sound undesirable and unnecessary, much like the ads for medications that quietly and with soothing background music "warn" the viewer or listener about potentially fatal side-effects associated with the medication, do.

This is ultimately what is wrong with having someone who is neither vegan nor even open to veganism write a story about a delicious new vegan meat.  She will (and does) make it sound undesirable, fake, and inexplicable, when it is anything but.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Monday, 07 Apr 2014 11:06
By Michael Dorf

My latest Verdict column criticizes McCutcheon v. FEC, last week's SCOTUS ruling that invalidated the federal aggregate campaign contribution limits. I use the Netflix series House of Cards as a vehicle for exploring the benighted view of politics held by a majority of the Roberts Court. Here I want to focus on two lines that appear in the plurality opinion, but before coming to the lines in question, let me put them in context.

In McCutcheon, the plurality repeats and reinforces a view that has been expressed in prior cases as well--that the only government interest that can provide sufficient ground for overcoming the free speech rights of donors to political campaigns is the interest in avoiding quid pro quo corruption or the appearance thereof. As I explain in the column, and as Justice Breyer argues at length in dissent, even accepting the premise, the McCutcheon plurality applies an overly narrow view of what constitutes quid pro quo corruption or its appearance, but one might also think that the premise is false. One might take the view that the government has a powerful interest in ensuring that the inequalities in the distribution of material resources that result from capitalism should not be permitted to result in gross inequalities in the political realm. Various political and legal theorists have thus argued that "leveling down" is a permissible goal in this area--although the Supreme Court (including liberals on the Court) has generally rejected this goal.

The rejection of the equality rationale for campaign finance regulation is pithily summarized in a line from Buckley v. Valeo that was quoted in the McCutcheon plurality: “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” This line gets quoted even by Justices who are otherwise critical of Buckley. But is it sound?

The theory behind the "wholly foreign" line is not entirely clear from Buckley itself, which follows that line with generic quotations and citations of seemingly irrelevant cases that say that the First Amendment aims to ensure the "widest possible dissemination of information from diverse and antagonistic sources." But that's not really very responsive to a supporter of the equality rationale who worries that the best-funded sources drown out the voices of the poorly-funded ones. I think the most that could be said for the "wholly foreign" claim would instead be that speech is not a zero-sum game, a point that is probably more true today (as a consequence of the internet) than it was in 1976 when Buckley was decided. In any event, whether or not true, this idea is pretty well-embedded in free speech doctrine, as seen, for example, in Justice Brandeis's famous concurrence in Whitney v. California: "the fitting remedy for evil counsels is good ones."

Even assuming that speech is not, in general, a zero-sum game, however, one might think that political influence is a zero-sum game. A candidate who takes a position in favor of some bill because he thinks that doing so will result in more campaign contributions than if he opposes it is making a zero-sum choice: Either he votes for the bill or he votes against it, and if the prospect of large donations leads him towards one choice, then it leads him against the other. Thus, the equality rationale for campaign finance regulation does not aim to equalize speech for its own sake; it aims to equalize access to, and influence over, politicians. The Brandeisian "more speech" response isn't responsive to this argument.

In this area of the law, as in so many others, repeated recitation of a catchy line--here, "the concept . . . is wholly foreign to the First Amendment"--tends to operate as a substitute for any sustained argument, but occasionally the Court offers a glimpse of the thinking that may lie behind the catchphrase. And so it was in McCutcheon that after repeating the proposition that the only legitimate goal of campaign finance regulation is to attack quid pro quo corruption or its appearance, the plurality added an argument in seeming justification thereof. Quoting another of his dreadful opinions invalidating campaign finance regulation (the dreadfulness of which I explained here), CJ Roberts wrote in McCutcheon:
Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” Bennett. And those who govern should be the last people to help decide who should govern.
There is a certain logic to this claim, I'll concede. Having Congress decide the rules about how Congress itself is selected does appear to run the risk of self-dealing. And there are contexts in which this sort of logic informs constitutional doctrine. For example, the fact that constitutional amendments are sometimes enacted for the purpose of overruling Supreme Court decisions counts as a reason for treating the question whether a constitutional amendment was validly enacted as a non-justiciable political question.

That is not to say that the Supreme Court consistently applies this anti-self-dealing logic. One might think, after all, that those who sit on the Supreme Court should be the last people to help decide who should be in a position to decide who sits on the Supreme Court. But somehow that argument didn't prevail in Bush v. Gore. Go figure.

But even if we put aside questions of consistency, the anti-self-dealing argument does not work in the campaign finance context. Like so many other punchy slogans to emerge from the pen of CJ Roberts--see, e.g., Parents Involved in Community Schools v. Seattle School Dist. No. 1 ("the way to stop discrimination on the basis of race is to stop discriminating on the basis of race")--so too here, upon close examination, there is less than first meets the eye.

Simply put, the idea that Congress can't play a role in making the rules governing how members of Congress are chosen contradicts the Constitution. Article I, Sec. 2 charges Congress with the task of defining the manner in which the census is taken, even though census numbers have a large bearing on elections; Article I, Sec. 4 gives Congress the power to alter state rules governing the procedure by which Senators and House members are chosen; and Article I, Sec. 5 designates each house of Congress as "the Judge of the Elections, Returns and Qualifications of its own Members." So the Chief Justice has it exactly backwards when he says that members of Congress "should be the last people to help decide who should govern." According to the Constitution, they are the first.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 04 Apr 2014 14:59
-- Posted by Neil H. Buchanan

In my Verdict column and Dorf on Law post earlier this week, I expressed a decidedly negative view of university administrators.  In my telling, they are engaged in a relentless campaign to destroy higher education, thus undermining the modern university's role as a pillar of the Enlightenment.  Although there is all too much evidence that my description accurately captures the trend among university administrators, many of whom are intensifying efforts that have been ongoing for decades, my comments should definitely not be read to say that it is easy to run a university well, or that all administrators are acting in bad faith.

For those administrators who understand the importance of university stewardship (and there are many, many such administrators), the challenges of making universities work is never an easy one.  I have enough self-awareness to know that deans, provosts, chancellors, and presidents are doing jobs that I would absolutely hate to take on.  I respect those who try, but I do not truly understand why anyone would put herself or himself on that firing line.  Even in the best of times, it is a grueling job.  In tough economic times, it is harder still.

At my law school, we are in the midst of a search for a new dean.  Our interim dean, Professor Gregory Maggs, has continued to do a fantastic job of serving our community on a temporary basis, but he evidently (I have not spoken with him about this) has the same overall view that I have about being a professor, because he did not put his name in for the permanent position as dean.  He has been willing to sacrifice two out of the last three years to serve our law school in times of need, but he has chosen to go back to being a professor.  Who could blame him?

As we are considering various candidates who have expressed a willingness to serve as our next permanent dean, one obvious set of questions revolves around how each potential dean views the role of faculty in governance, how she or he would deal with the university's central administration, and so on.  To the extent that one can assess good faith in the interview process, the news is good for us.  All of our potential deans seem to be committed to maintaining the values of legal education, and of higher education in general, that have made the American system so successful for so long.  We face an embarrassment of riches, with our choice to be made from among a list of people who would be "good administrators" in the broadest sense, leaving us to base our decisions on an unquantifiable mixture of other criteria.

One question that I have been asking, and not just of the potential future deans, has to do with the classic economic problem of dealing with tradeoffs in allocating resources.  No matter whether the overall budgetary picture is flush or tight, so long as resources are finite, the commitment of a school's resources must involve difficult choices.  A dollar spent on one priority cannot be spent on anything else.  (The less charitable among my readers might be saying, "Well, duh!")

In the case of GW Law, however, we present a somewhat extreme version of a classic sub-question regarding tradeoffs in resource allocation: When your institution has great strengths as well as glaring weaknesses, should you build on the strengths or shore up the weaknesses?  Yes, you can do a little bit of both, but splitting the difference is itself a choice that needs to be justified and calibrated.  What I find interesting is the more general conundrum of how to choose between directing resources toward areas of strength or weakness.

There is no reason to be abstract about this, so let us look at specific examples.  GW Law's many strengths most obviously include government contracts law, international and comparative law, intellectual property law, and constitutional law.  (Obviously, I do not mean to diminish other strong areas by highlighting this short list.)  Its current weaknesses include environmental law and tax law.

The weaknesses that I am describing, of course, are not based on particular personnel being weak (present company excluded).  Our tax faculty was never large, but it is now down to two people (including me, and I am not really a classic tax scholar).  Our environmental faculty, and our community as a whole, suffered a huge loss a few years ago when one of our colleagues died of a rare disease at a young age.  What I am describing as weakness, therefore, is not a matter of poor performers, but of strong performers without enough disciplinary colleagues.  If the problem were that current personnel were underperforming, that would raise a wholly different set of issues.  But for us, the only way to get better in tax and environmental law is to increase our ranks.

Prior to the financial crisis in 2008, we had a third tax law professor on our faculty, and the then-dean had committed to hiring a fourth tax scholar.  Even that, however, would have left us in a relatively weak position in tax.  Although it is an admittedly crude metric, I asked my research assistants at the time to gather data on the students-per-tax-professor ratios at the top law schools.  (The result did not meaningfully differ when we looked at different sample sizes: top 20, top 40, top tier, and so on.)  We discovered that, to be in the middle of the distribution, a school of GW's size would need six full-time tenured or tenure-track tax professors.

Moreover, as several of our prospective deans have noted, when I told them about our weakness in tax, "But you're in DC!!  How in the world is GW not a heavyweight in tax law?"  Yes, Georgetown runs a well-respected Tax LL.M. program, but there is more than enough oxygen here to support two large tax faculties, even if GW were to revive its own LL.M. program.  Short of that, there is no reason why we could not be expanding our tax footprint.  Certainly, the "but you're in DC" argument would also apply to environmental law (and health law, and ...).

I am all too aware, in other words, of the arguments in favor of using the law school's resources to shore up our tax program.  I make them all the time.  Those arguments, however, are often based on the assumption that there is some reason why a law school has to be equally good at everything.  Or, to put it less politely, it assumes that a law school should be willing to settle for less than greatness in some areas, in order to level out the allocation of resources.  But why not instead simply put the pedal to the metal on government contracts law, achieving transcendant greatness, even if that means leaving the tax program in a minimalist state?

As an important aside, I should emphasize that we continue (barely) to be able to put together a tax curriculum that is adequate for any J.D.'s needs.  Law schools that have only one tax professor, even with a smaller student body, simply cannot do what we do -- especially given our access to great adjuncts -- and I think that those schools, unlike GW, have crossed a line that should not be crossed.  Others may disagree.

The more specific framing of the core question, then, is this: Assuming that a law school has a minimally-adequate program in all of the major areas of law, how should it decided between building on strength and shoring up weakness?  One analogy that resonated with me is the famous problem of tennis players' arms.  Because of the nature of that game, players' racket-swinging arms naturally grow stronger.  And if one were to put extra effort into building up strength, competitive advantage comes from further building up the racket-swinging arm.  Tennis players who want to have two equally-muscled arms must actually be vigilant and do extra work to bring up the non-racket-holding arm to the stronger arm's level.  See, for example, this photo of the current #1 men's tennis player in the world, Rafael Nadal.  Even with work, his "off" arm is strikingly smaller than his other arm.

When I first thought about tennis players' arms, I imagined the analogy as part of an argument that said, "Well, you'd never want to have such inequality in arm size, would you?  Would you?!!"  But of course, you might.  For example, if you want to be great at tennis, it makes sense to accept the reality that your arms will be of unequal size.  If you have the time and resources to shore up the weak arm, more power to you.  Former top player Roger Federer apparently refused even to work out his non-swinging arm.  Why bother?  That simply did not matter to him.  His off arm was hardly withered or vestigial.  It only looked weak by comparison to the great strength in his racket-swinging arm.

On the other hand (pun intended), maybe tennis is not your game.  Maybe you are a decathlete, or some other athlete who must have a variety of strengths.  (Even most decathletes actually rely on being especially good at a few events, to make up for weaknesses in others.)  In other words, the tennis analogy, and sports analogies more generally, can cut either way here.  We are left with the question of what a new dean, and her or his faculty, should decide with regard to GW Law's strengths and weaknesses.  I can make a full-throated argument in favor of turning tax from a weakness into a strength (or at least a non-weakness), but I confess that I can see how someone would conclude that our game is not best played by trying to be equally-almost-great in every aspect of law.  If we chose inequality, some specialties will be less equal than others.  That fate might await tax law at GW.

Leading a university, or any of its constituent parts, is not easy.  I would not want to be the person to make final decisions about whether we should aim for equality or inequality, or to choose who will be favored and disfavored.  Although it is true that many university administrators are pursuing an agenda that is damaging to the future, even the good administrators will often have to make excruciatingly difficult choices.  It's a tough job, and I am glad that other people are willing to do it.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 03 Apr 2014 14:55
-- Posted by Neil H. Buchanan

My latest Verdict column, "Destroying Our Universities By Turning Us Against Ourselves," is a response to the recently escalating attacks on higher education, focusing on the divide-and-conquer tactics that university administrators have been using to advance their agendas.  The general idea, of course, is for the people with real decision-making power to turn the various constituencies within the university against each other, fighting over crumbs.  If you can get the students, faculty, staff, and alumnae/i bickering amongst themselves, life as an administrator becomes a lot less difficult.

Two years ago, I criticized (in a Verdict column and a Dorf on Law post) an op-ed by a former chancellor at the New School, who attempted to convince his readers that elite faculty should abandon the fight to protect tenure for anyone but themselves.  If that strategy were successful, the people with the most leverage in a university setting (the "star" professors) would no longer use their clout to join in solidarity with the non-stars.  That would dilute even further any remaining efforts by (the depleted ranks of) tenured faculty to protect the rights of nontenured faculty -- not just junior faculty, but adjuncts and others in tenuous contract positions.

The problem from the administrators' side is obvious: How can we load extra work onto the powerless workers without being resisted by the powerful workers?  The answer: Get the powerful people to think that the powerless "others" are unworthy.  (Sound like the strategy of a major American political party?  It should.  What is the academic equivalent of the "makers vs. takers" divide?)

I then noted a more recent example of divide-and-conquer tactics, which had been reported in GW's undergraduate student newspaper.  I should note that the GW administration now disputes The Hatchet's version of events, and there is a story with a much different hue available from GW Today (which describes itself as "GW's official online news source").  Readers can judge for themselves whether the two versions are mutually exclusive, but the particulars of that incident are hardly the point of my column.  Examples abound across the country of university administrators using the weak economy to justify disastrous challenges to what it even means to be a modern university.

Most recently, for example, the University of Southern Maine announced layoffs of faculty (including tenured faculty), on top of recent and impending staff cuts.  It certainly appears that the financial excuses are pretextual, with the university's president claiming that the system must "evolve from a liberal arts college to a 'metropolitan university' that is closely connected with businesses, residents and governments."  Yes, it is all about neoliberalism, with the goal of creating "results-oriented" universities being the new excuse to shut up dissent.

Beyond my argument about divide-and-conquer tactics, the more central point of my most recent Verdict column was to provide an aggressive argument in favor of tenure.  Students are sold the idea that cosseted tenured faculty are the problem (and, I should add, faculty are then told that spoiled students -- the results of helicopter parenting and soccer-games-without-keeping score emotional pampering -- are the problem).  Alumnae/i believe that both faculty and students are selfish.  Staff are encouraged to blame everyone (except the administrators).

It is not just that administrators are trying to divide the constituencies of the university, which is bad enough.  The specific attacks on tenured faculty have consequences that go far beyond the immediate battles over resources.  Tenured faculty, as I put it in my column, are almost by design a "mouthy bunch" who, in a healthy university environment, will use their job security for good purposes.  Being malcontents with employment protections, we can do things that others cannot do.  I know of at least one example of a school where the tenured faculty led the fight against a top administrator who was mistreating staff.  The tenured faculty had nothing to gain for themselves, but if they did not fight for the at-will staff members, no one else could.

In any such defense of tenure, one must take a moment to concede that, yes, there are plenty of examples of tenure-protected faculty who are problematic.  I offer such a paragraph in my Verdict column, but it is important not to concede too much.  There are people who stop writing.  There are people for whom one might wish that tenure was more easily revocable, for ideological reasons (Ward Churchill being a former example from one side of the ideological divide, John Yoo on the other).  But the benefits far outweigh the costs of deliberately cultivating and maintaining a group of mouthy malcontents, even if too few of them use their blessings as fully as we might hope.

There is, however, one "cost" of tenure that has always concerned me, and which merits special mention.  In every economics department and law faculty on which I have served, everyone told me that the smart thing for nontenured people to do was not to make waves, both in terms of our scholarship and in internal governance.  (For that matter, even tenured people who have not yet been promoted to full professor are advised not to rock the boat.)  This is well-meaning advice, and younger people are arguably wise to take it to heart.  The promise, after all, is that the day will come when they can unleash all of that pent-up independence and write what they want, say what they want in faculty meetings and in the larger university, and do what they want in the public square.

As many others have noted, however, timidity becomes not just a habit, but a personality trait.  When tenure is finally granted, far too many people who might have been fiercely independent have simply become accustomed to holding their tongues.  They might not even have to hold them anymore, because they have succeeded in stopping themselves from thinking unwelcome thoughts.  Some might overcome this, but there are too many examples of "broken spirits" to pretend that this is not a common phenomenon.

Even this, however, merely argues in favor of encouraging those faculty who are willing to speak up to do so.  The system winnows down the group of people who might speak truth to power (both inside and outside the university), but that is certainly not a reason to suppress, ignore, or reduce the power of those who do.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 02 Apr 2014 11:30
by Sherry F. Colb

In my Verdict column this week, I take up the dilemma of the "Agunah," a traditionally observant Jewish woman whose ex-husband refuses to grant her a religious ritual divorce, known as a "get."  A woman in this situation is "chained" to her prior marriage, unable -- within the Orthodox or Conservative Jewish communities -- to enter into another marriage without violating the religious proscription against adultery.  In the column, I discuss the gender inequity at the heart of this dilemma and the consequences for the Agunah as well as for her offspring.

In this post, I want to explore an issue that arises out of the one of the "Agunah" stories in the news to which I refer in the column.  In this story, a group of men offered their services to agunot (plural of agunah) to force recalcitrant ex-husbands to grant their ex-wives a get through kidnapping and torture techniques, including the use of what are frequently called "cattle prods" but which I would instead call "torture devices that use electric shocks against sentient animals to force them to go to their unnecessary deaths."  In the case of the get-seeker, torture would be inflicted as a means of motivating ex-husbands to do what they should have done on their own:  release an ex-wife from being religiously bound to a man to whom she no longer wishes to be in a relationship.

Is torture in this situation wrong?  I (and I suspect most people) would take the position that it is.  Yet I also understand why a woman might be desperate enough to resort to it.  If a woman lives within an Orthodox community and believes herself to be prohibited from dating or marrying a new man without a get, then her ex-husband's inexcusable recalcitrance keeps her from forming new romantic connections, from marrying again, and from having children without they and their own descendents having to bear the stigma of mamzerim (loosely translated as bastards) who are similarly barred from marrying within this community. Most people within the relevant communities themselves believe that it is outrageous (and a form of domestic abuse) for a man to refuse to grant his ex-wife a get, but traditional Jewish law appears to provide no substitute for the man choosing to do the right thing, if shaming and efforts at moral persuasion and other non-violent methods do not work.

When a man's behavior is acknowledged by almost everyone to be inexcusable and abusive, which is the case for the refusal to grant a get, then it is easy to understand (even if we still reject) the drive to use torture to compel the man to do the right thing.  This is probably the drive that has led some police officers who are certain that they have a guilty suspect in custody to use physical force and threats to produce the confession that they regard as rightfully theirs.

When police torture a suspect, of course, this is different from torture-for-a-get in a variety of respects, including the fact that (1) our Constitution and the ethics that motivated its creation and ratification grant a person the right to refuse to confess, notwithstanding her guilt, and (2) police who coerce a confession ordinarily cannot really "know" that the suspect is guilty, and thus torture can result -- and has resulted -- in false confessions by tormented suspects.  By contrast, (1) Jewish law does not recognize a "right" to withhold a get from one's ex-wife (though it does give a man this power over a woman to whom he was married), and (2) there are virtually no situations in which a tormented man might grant a woman the get that she seeks when she is not truly entitled to the get.

Yet despite the fact that the man has no right to withhold a get and the corresponding fact that virtually no man who grants the get under torture will have given up something to which he has any rightful claim, most of us would consider torture in these circumstances to be immoral.  Indeed, the very fact that people are driven to commit acts of torture to obtain a get represents a good argument for revisiting the get requirement.  One possibility that occurs to me is that perhaps whenever people have a Jewish wedding ceremony, a new custom emerge that requires the man to sign a get and deliver it to the rabbi who marries the couple (or to a community safety box) for safekeeping.  Then, if and when the two people divorce, the trustee of the get can deliver it on the ex-husband's behalf.

To the extent that we believe torture is wrong in these circumstances, though, why is that, if it is intended  to compel what is truly obligatory behavior?

One general answer that I discuss in more detail in an article entitled Why Is Torture "Different" and How "Different" Is It?, published in the Cardozo Law Review in 2009, is that torture is an extreme form of violence that should be permissible, if at all, in only a very narrow category of situations.  One such legitimate category, I argued, is self-defense, in which torture (though not usually thought of in this way) is already lawful.  Consider the following scenario.

A man, Doe, is holding a pillow over a child's face, suffocating the child.  The man's much weaker roommate, Koe, notices what is going on and screams at Doe to stop what he is doing.  Doe refuses to stop, even when Koe ineffectually tries to pull Doe's hands off the pillow.  Desperate for a means of saving the child, Koe grabs a pair of scissors and cuts into Doe's arm.  Doe shrieks in pain but continues holding down the pillow.  Koe then takes the scissors and  jams then as hard as he can into Doe's back.  Now in excruciating pain, Doe lets go of the pillow, which Koe quickly removes from the child's face, thereby saving the boy's life.

In the above scenario, Koe uses pain to disable Doe from carrying out his act of violence; he uses the infliction of torments -- or torture -- as a means of stopping Doe from carrying out a murder.  Absent viable alternatives, I think most of us would regard Koe's actions as justified in defense of others.  Instead of killing Doe to save the boy's life -- which Koe could legitimately have done, if necessary -- Koe tortured Doe to do the same thing.

How is the Doe & Koe scenario different from the sort of torture about which our debates ordinarily center -- torture of terrorist suspects, for example, in an effort to obtain actionable intelligence?  One important way in which the two scenarios differ is that in Koe's case, Koe is using torture to stop an action in progress, while in the case of the terrorist suspect, the interrogator is using torture to motivate an inactive person to do something.  This difference turns out to be important for several reasons that I explore in greater detail in my Cardozo article.  One of the main distinctions is that when we torture an inactive person to motivate him to act, we could well be torturing the wrong person -- that is, we torture a terrorist suspect who could turn out to be innocent and thus ignorant of whatever it is that interrogators hope to learn from him.

If the torturer is wrong about what the suspect knows, then the one who is being tortured actually has no effective way to make the torture stop, by contrast to Doe, who can make his own torture stop simply by letting go of the pillow he is using to suffocate the child.  This is why a subject of instrumental torture may endure much more pain than the torturer originally intended to inflict -- it takes quite a bit of torture (perhaps enough to kill the subject) to satisfy an interrogator that the subject truly cannot meet the torturer's demands. Escalation is almost inevitable when the torturer has erred in selecting the subject, thus leading to the greatest suffering for those who are innocent and unable to do what is asked of them.

How does the torturer who attempts to obtain a get for an agunah fare in this analysis?  Such a torturer is plainly attempting to motivate someone (a recalcitrant ex-husband) to do something he has been refusing to do rather than to stop doing something he has already done:  the action in question is granting his ex-wife a get. This fact would seem to place the "get" torturer in the category of interrogators who torture terrorism suspects (and criminal suspects) for information or evidence, the sort of torturer about whom we should be most wary and to which absolutist opposition arises.

On the other hand, in the case of the recalcitrant ex-husband, unlike the case of a terrorist suspect, there is much less of a worry that the torturer may end up inflicting torments upon the "wrong" person.  Say the "get" torturer, Knuckles, enters the wrong home and tells the man he finds there, Earnest, to sign a get for Jane Roe or be tortured. Earnest says "I am not married to Jane Roe."  If Knuckles does not believe Earnest , then Knuckles might say "just sign it" or I will start hurting you.  At this point, Earnest can sign the document, and Knuckles will go away with the document.  The would-be torture victim, in other words, can complete the task requested of him even if he is the wrong person.  For a terrorism suspect, this is not true.

Whether this distinction is sufficient to move the "get" torturer closer to the category of legitimate self-defense/defense-of-others torture is unclear.  However, another factor that suggests that torture is wrong when used to obtain a get is the possible disproportion between the harm to be prevented -- the inability of the woman to marry -- versus the excruciating pain to be inflicted on the recalcitrant ex-husband.  Unlike an actual kidnapping or attempted murder, the ex-husband is arguably doing something substantially less threatening and harmful and is accordingly less deserving of harsh methods of intervention.

From the point of view of an agunah, however, placing her in a kind of excommunicated state -- where no man in the community would be willing to marry her and where her children with any man who is willing may suffer their own stigma of excommunication -- is a very serious matter indeed.  And as I concluded in my column, I will conclude here:  there has to be a way to solve this problem other than torture or relying on the good faith of men who are, by definition, acting in bad faith.  Giving people the power to do harm without remedy virtually invites self-help.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Tuesday, 01 Apr 2014 10:00
By Michael Dorf

The sunny skies of Orange County, CA have thus far failed to lift the dark mood of the faculty and students at UC Irvine School of Law, who awoke yesterday to the disconcerting news that founding dean and noted constitutional scholar Erwin Chemerinsky was leaving, effective immediately, to start yet another new California public law school, to be called "UC Erwin."  In a press release, Chemerinsky announced:
I am very proud of what we built together at UC Irvine since we admitted our first class way back in the fall of 2009. But that was nearly five years ago, which, in this rapidly changing environment, is an eternity.  What was innovative then is now stodgy.  At UC Erwin, I plan to not just reinvent legal education, but to reinvent the reinvention of legal education--every day.
The new law school will be located in the unincorporated community of Irwin, California, in Merced County just 20 miles south of Modesto.  Approval of the change of the spelling of the community from "Irwin" to "Erwin" is expected before UC Erwin School of Law opens its doors in August. Said Merced County Supervisor Dorothea Rodriguez about the name change: "This was too good an opportunity for us to turn down."

Still, some skeptics have raised questions about whether California needs another law school right now. Dean Kevin Johnson of the UC Davis School of Law told DoL that "notwithstanding Erwin's gifts, it's just not clear to me that we should be building new law schools, rather than redefining the mission of existing law schools." Fair enough: UC Erwin can be expected to be in direct competition with UC Davis--although you wouldn't guess it from what Chemerinsky told Above the Law. He reportedly said:
I see UC Erwin as revolutionizing legal education, indeed, as revolutionizing knowledge itself. My competition is not so much UC Davis or Berkeley or even Stanford Law School.  UC Erwin will be a completely different sort of institution.  When future generations look back on the history of UC Erwin, I hope they will compare its world-historical impact with Plato's Academy, not something as transitory as Yale Law School.
What's so revolutionary about Chemerinsky's new law school?  Reached for comment in between arguing a Supreme Court case and appearing on MSNBC, Dean Chemerinsky told DoL that UC Erwin would be unique in three ways.  Here is his list:
Number one: Faculty.  At Irvine we had problems retaining the faculty we recruited from other law schools.  Some of them went back to the schools we recruited them from because they never fully bought into the vision. At [UC] Erwin, all of our faculty will continue to have their primary attachment to wherever they are now. We'll just list them on our website.  If they never leave, they can never go back. 
Number two: Pedagogy. We have been using the Langdellian Socratic method for a century and a half. Today's students need to learn by doing. They'll be out in the field from day one.  No classrooms. No books. No classes. Just real life lessons.
Number three: Students. I get it. There aren't enough jobs for all of the students law schools enroll as it is. UC Erwin will not contribute to that problem. We won't have any students who don't already have law jobs when they arrive. In fact, for the first three years, I'll be the only student.
When I read Chemerinsky's revolutionary plan to Harvard Law School Dean Martha Minow, she coughed nervously. When pressed, Minow said that Chemerinsky's plan would vault UC Erwin to the top of the USNews rankings.  "It's devilishly clever," Minow added.  "100% placement rate; perfect LSATs; top grades. The only thing that could stop him is reputation but Erwin has such a great brand, so he's got that covered too."

Less than an hour after I got off the phone with Minow, I received a mass email from the Harvard Law School alumni office boasting that "HLS is the original UC Erwin." It noted that "the University is located in Cambridge [MA], and the law school's nerve center is in Griswold hall, named for long-serving HLS Dean Erwin Griswold." (Bold letters in original.)

Harvard does not appear to be the only law school jumping on this particular bandwagon. In a move that he described as having been "in the works for some time," late yesterday Duke Law School Dean David Levi announced that his institution had changed its official name to Chemerinsky Law School, claiming that that the move was in honor of Kimberly Chemerinsky, a 2007 graduate of the Duke Law School (and Erwin Chemerinsky's daughter-in-law). Levi said that "Kim was a really terrific student here, who is already making a name for herself in practice." He added that the change was in no way an effort to capitalize on Erwin Chemerinsky's name recognition. "Erwin Chemerinsky?" Levi asked.  "Never heard of him."
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Monday, 31 Mar 2014 11:30
By Michael Dorf


[N.B. 1: In advance of the oral argument in Hobby Lobby last week, I was on MSNBC. Video available here.  Note that at the very end of the segment I appear distracted. That's because the MSNBC engineer cut my audio while the host was still speaking, so I thought the line had gone dead.  The hazards of live tv!

NB 2: In addition to my twice-to-thrice weekly posts here on DoL and my bi-weekly columns on Verdict, I now have authoring privileges on the Huffington Post, where I shall, from time to time, write short essays for a somewhat more general audience than my general readership.  My first such essay is now available there.  I am also reproducing it below:]
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More than half a century ago, a young Yale law professor named Robert Bork wrote in The New Republic that requiring private business owners to open their doors to all members of the public regardless of race or sex would enact into law a "principle of unsurpassed ugliness." Congress disagreed and passed the landmark 1964 Civil Rights Act.
Bork went on to have a distinguished, but controversial, career. His academic work provided the theory for curtailing antitrust enforcement. As President Nixon's Solicitor General, Bork executed the Saturday Night Massacre. He wrote many important decisions as a judge on the U.S. Court of Appeals for the D.C. Circuit. And, most famously, President Reagan's 1987 nomination of Bork to the Supreme Court yielded a national conversation about how to construe the Constitution and federal laws.
Bork was neither a racist nor a sexist, even in 1963. As he explained during his confirmation hearing, his original opposition to public accommodations laws was based on free-market libertarianism. He said that he came to regard even that earlier view as mistaken for failing to acknowledge that the good done by civil rights laws far outweighs the infringement on economic liberty.
Bork died in late 2012, but he remains a hero on the right. Unfortunately, however, many of his fellow conservatives do not appear to have followed Bork's lead when it comes to valuing social goods other than individual liberty.
Increasingly, contemporary conservatives elevate even far-fetched claims of liberty over the greater good. For example, in cases currently before the U.S. Supreme Court, corporate plaintiffs claim a religious right to deny contraception coverage to employees. In a case from New Mexico, a for-profit wedding photographer claims a free speech right to refuse her company's services to a same-sex couple. And last month Arizona made headlines when it nearly enacted a law that would have expanded the rights of business owners to religious exceptions from public accommodations laws.
To be sure, the context has shifted. In the foregoing examples, the claimants seek exceptions based on speech and religion, rather than general libertarian grounds. But that shift appears opportunistic rather than fundamental. After all, the right continues to attack the Affordable Care Act's obligation to purchase health insurance on full-throated libertarian grounds having nothing to do with speech or religion.
In explaining his change of heart on public accommodations, Judge Bork portrayed his earlier libertarianism as a product of a view of the free market in which systematic discrimination could not occur because it would be unprofitable. As he gained more experience with the real world, Bork said, he came to understand that social interactions are more complicated.
Put differently, Bork grew up. He recognized that as important as individual liberty is, it must sometimes yield to the greater good. Thus, while the government cannot punish anyone for expressing racist, sexist or homophobic views, it can condition participation in the market on opening the doors of a business to all people, regardless of race, sex or sexual orientation.
That is a hardly a principle of unsurpassed ugliness. On the contrary, seen from the vantage point of a half century of civil rights law, it looks quite beautiful.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 28 Mar 2014 14:55
-- Posted by Neil H. Buchanan

Earlier this week, a regional director of the National Labor Relations Board (NLRB) issued a decision that could be the turning point in the relationship between universities and the athletes who represent them on football fields.  The director concluded that football players at Northwestern University (one of fourteen current members of the Big 10 conference) are employees of the university, and thus are eligible to hold a vote to form a union.  Although there are many miles to go in this legal marathon, this decision could end up changing everything in college sports.

There are, of course, a daunting array of legal questions that follow from this decision.  Some have straightforward answers, such as whether this decision (if ultimately upheld) would apply to athletes at state universities.  (No.)  Others are generating excited discussion among various groups of legal analysts.  My colleagues in tax law, for example, are already having a field day (no pun intended) discussing the many questions raised by the potential taxation of employee-athletes.

I might end up weighing in on a number of those legal issues in future posts.  For now, however, I want to think aloud about some of the implications, both positive and negative, of allowing college athletes to unionize.

Regular readers of Dorf on Law might recall that I have at various times expressed great skepticism about calls to pay cash compensation to college athletes.  Most recently, I wrote last December about the disturbing tendency among most observers to treat full-ride scholarships, including free room and board at top universities, as somehow worthless.  (Links to all of my earlier posts and columns about college sports can be found at the beginning of that December 5 Dorf on Law post.)

I also have criticized the overwrought claims about a "plantation mentality," and other inapt imagery, that others have used to attack the National Collegiate Athletic Association (NCAA) and its current policies regarding student-athletes.  That is not to say that I am in any way a fan of the NCAA.  Its procedures are often arbitrary and capricious, and it has if anything allowed far too much cheating to go unpunished in the interest of maximizing revenues.  (Star athletes get special treatment from the NCAA, when TV ratings are threatened.)

I am, in fact, overall rather optimistic about the possible effects of unionizing college football players and allowing them to bargain collectively with their universities.  A union could, and should, focus less on immediate big-money payoffs and more on matters that could actually improve the lives of all college athletes, especially later in their lives.  The Northwestern players' two main concerns "were better health care and limited practice hours."  If players were allowed to unionize, and if those two issues are what the new union puts front and center, that could be great news.  Despite my skepticism about other issues, I have always agreed that the players deserve to be provided with better health care and (especially) disability insurance, and that they should not lose their scholarships if they become injured (or leave the team for other legitimate reasons).

More importantly, the essence of my objections to pay-for-play have been predicated on the idea that athletes should actually be allowed to be students, rather than being encouraged to go for short-term cash.  Even though the evidence shows pretty convincingly that college is still a very good deal for scholarship athletes (with Northwestern itself leading the way with a 97% graduation rate), there is no doubt that too many college athletes -- almost certainly a small minority, but not a trivial one -- are not benefiting from the educations that they are supposedly receiving.

Of course, there is a possible paradox.  If a union succeeds in forcing universities to allow their athletes to become real students, then they might no longer be eligible to be unionized.  The director's ruling, notably, is based on the conclusion that the players are not "primarily students."  If they become students again, they would presumably be subject to earlier NLRB rulings that have prevented students from unionizing.

But we can put that aside for now.  A more pertinent question is whether a union would actually follow through on an agenda to reduce practice time and improve health care.  It sounds good now, but would a union really leave all of that money on the table, when the highest-profile athletes would be clamoring for million-dollar paydays while still in college?  Actually, I think that they might.

The best place comparison, of course, is the union that represents players in professional football, the National Football League Players' Association (NFLPA).  Although the NFLPA is much smaller (representing only 50-60 players on each of 32 teams, as opposed to the 90 or more college players on each of hundreds of teams), and its players are professional, there are plenty of similarities.  For one thing, the average professional career lasts only three seasons, meaning that the NFL (which some players say is an acronym for "Not For Long") employs its typical employees for shorter terms than do colleges.  Colleges do not have 14-year veterans, of course, but those guys are true outliers in the NFL, too.

And the good news is that the NFLPA, despite its many disadvantages vis-a-vis a league that holds an antitrust exemption, is fighting the good fight.  Most importantly, perhaps, the NFLPA is the reason that the league still has a 16-game season.  The owners have been trying for years to move to an 18-game schedule, but the players' union has resolutely refused.  Given that the NCAA has allowed colleges to go from 11- to 12-game seasons, and to add conference championship games, and now is adding a layer of playoffs (along with oddities like allowing teams that schedule games at the University of Hawai'i to schedule a 13th regular-season game), it is important to have a counterbalance against the economic pressure to physically exploit the players even more than they are already being exploited.

Moreover, the NFLPA has been the driving force in trying to get the league to deal with head injuries, fighting the causes and consequences of concussions and the dementia that has become epidemic recently among retired players of the 1970's and 1980's era.  Early indications from medical studies suggest that the head injury problem starts at the college level (and even before), and there is plenty of evidence that NCAA schools are not taking this seriously enough.  If the players' union pushes hard on that issue, it would have earned everyone's respect.

Note also that having an outside entity (in this case, the players' union) forcing all teams to adjust their practice times downward (and to protect players better than they do now) would have the effect of benefiting players without compromising competition.  That is, every individual team currently has an incentive to push its players harder, to try to gain a competitive advantage.  This inevitably pushes up the demands on the young athletes.  The union would solve that group action problem, allowing everyone to dial it back without fear of losing an edge.  (There are always temptations to cheat, of course, but the new norm would surely center around less practice time.)

So, there are some reasons to think that unionizing college football players could have some very good consequences, significantly improving the lives of the players, and potentially forcing universities to act more like universities than Fortune 500 corporations.  I have already noted one reason for pessimism, which is that the union could instead try to simply turn college football into a pay-for-play semi-pro league, with health concerns and education left behind.

Even if that were not to happen, however, there are other reasons for concern.  Although the reduction in practice times, and the increased attention to head injuries and other health issues, would be a plus for players without being costly to the universities, other goals of a players' union could end up inadvertently harming players, because of their inherent costs.  My preference, for example, would be that a football scholarship be irrevocable (other than for obvious reasons like flunking out) for four years, and that the players whose playing careers forced them to reduce their class schedules would have their scholarships extended for one or two years to allow them to graduate.

That requirement, along with other player-friendly initiatives (especially university-paid disability insurance) would increase the per-player cost of running a football program.  This could have the unfortunate effect of contracting the size of football squads, which could then have the effect of causing fewer players to play more minutes (and to be forced to play even when badly injured).  The high-profile playing positions have recently become even more injury-laden, of course, with situations like the University of Florida Gators having to play their 4th-string quarterback last season, when the three young men ahead of him suffered season-ending (and potentially career-ending) injuries.

Some of the most brutal play, however, is seen on special teams, especially kickoffs, where little-used players try to prove their mettle by taking insane risks that end up injuring themselves and their opponents (and sometimes even their teammates).  The injury potential is so extreme that the NFL has even considered eliminating kickoffs entirely.  It is at least possible that, as a result of the reforms that I support, college teams could reduce their rosters to the point where the special teams players suffer more debilitating injuries, because there are fewer bodies available to share the punishment of the games' worst plays.

I do not view this concern as a reason to abandon the non-salary goals of the college players' union.  I offer this example as merely one possible side-effect of changing the economics of the game, of which there are surely others.  Although I have been skeptical of the idea that players should be paid in cash, rather than scholarships, it is abundantly clear that the players deserve to have the rules changed in ways that would redirect economic resources away from athletic departments and toward the athletes.  The side-effects need to be managed, of course, but they are not a reason to abandon reform.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 27 Mar 2014 14:58
-- Posted by Neil H. Buchanan

Did you know that economic scientists occasionally must force themselves to be more than just scientists, and instead to base their arguments on political philosophy?  Gasp!  That is the "dirty little secret" that conservative economist Greg Mankiw revealed in his column in last Sunday's New York Times Business Section.  Of course, framing the non-revelation in that way was very much designed to reassure people that economists are scientists in the first place, patiently offering "our understanding of how the world works", but who face the "necessity" of stepping outside of their scientific comfort zone -- because, you know, economic policies might actually harm some people.

Mankiw's writing is often difficult to take seriously, and this column appeared to be yet another example of why orthodox economists should not reveal in public how truly narrow they are.  He has, after all, spent the last year or so explicitly "defending the one percent," using a version of "just deserts" philosophy that simply assumes that rich people are rich because they are more productive than the rest of us.  (Why assume such a thing?  Why not?  Orthodox economic models are based on that assumption, too.  No need to question the orthodoxy, after all.)  As prominent as he is, his arguments are usually so flimsy that they do not merit even a moment's attention.

The column this past Sunday was different for three reasons.  First, as I noted at the top of this post, it was such a good example of orthodox economists' self-important pose as Scientists.  Economists like to pat themselves on the back for their "rigor" and "seriousness," to separate themselves from mere sociologists, political scientists, and so on.  The intensity of their commitment to proclaiming economics a science is matched only by the weakness of their claim to being actual scientists, as the balance of Mankiw's column so amply demonstrates.

Second, I could not help but laugh at the thinly veiled swipe at Paul Krugman that Mankiw delivers in the middle of the column.  Having admitted that "economic science is still a primitive body of knowledge," where "unintended consequences are the norm," he argues that economists should take a "big dose of humility."  And "if an economist is always confident in his judgments, or if he demonizes those who reach opposite conclusions, you know that he is not to be trusted."

Reportedly, the Times has a policy forbidding columnists from calling each other out by name.  (Probably a good policy, overall.)  Here, therefore, Mankiw is simply blowing a dog whistle for his conservative readers, all of whom have decided that Krugman is just a big meanie.  Supposedly, Krugman "demonizes" people with whom he disagrees, by pointing out that their policy prescriptions have been spectacularly wrong for years, while Krugman's have been notably and repeatedly proved right.  But that is just so rude for Krugman to say that people are being harmed by policies that are demonstrably wrong.  And, ya know, Krugman has been wrong, too!  (OK, not on any of the big issues since at least 2007, but you can bet he's been wrong.)  Of course, Krugman has readily admitted error, and refused to admit error where there was none.  But, per Mankiw, we should not trust someone who says things that turn out to be correct, and who points out when others have said things that were incorrect.

Krugman can defend himself just fine, but I found it amusing that Mankiw would feel the need to feed his base by saying oh-so-subtly that people like Krugman should be ignored because they are not humble enough.

I would not have devoted today's post to this topic, however, were it not for the third problem with Mankiw's column.  That is, he provides a wonderful case study in how conservative economists manipulate "the baseline problem" in making their policy arguments.  Conservative economists (and, to be clear, many liberal economists who buy into the basic framework of modern economics) take for granted the body of laws that allow a modern economy to function.  When criticizing a policy as "inefficient," the unstated assumption is that the other laws and policies are the baseline from which we can measure deviations from efficiency.

A stunningly clear example of this style of bad reasoning came up a few weeks ago, when a government report predicted that the Affordable Care Act would reduce labor supply in the future.  As I discussed in one of several posts on that subject, a prominent conservative economist became quite angry when people argued that reduced labor supply might be a good thing.  He had spent all that time trying to show that the ACA was inefficient, and people were not standing up to salute.

This was not, moreover, an example of the classic "efficiency versus equity debate," where soft-hearted people supposedly decide to allow the economy to operate below efficient levels, in the name of being "fair."  My point was that there is nothing about the pre-ACA labor supply that should be privileged in policy debate, such that deviations from it should be used to label the ACA an inefficient policy.  The laws of contract, collective bargaining, employment discrimination, antitrust, corporate governance, and so on all contribute to people's labor supply decisions.  Why should we assume that those laws, as currently constituted, should be the basis on which to determine whether the current economy is more efficient than an economy that would exist under some other combination of those and other laws?

Mankiw's column highlights this point by claiming that the "humility" that economists should adopt before offering policy advice requires them to respect the possibility that they can be wrong, so that they should strongly presume that "when people have voluntarily agreed upon an economic arrangement to their mutual benefit, that arrangement should be respected."  See?  The point is that we should not disturb the "free" choices that people have made in private contracts, because anything that we might do as a matter of policy could be wrong.

Those choices, however, are inextricably based on the existing web of laws and policies.  Therefore, it is meaningless to say that we should modestly step back, hoping at least to "do no harm" by not injecting the government into private decisions best left to the preferences of free men.  The government -- even a stripped-down "night watchman" state -- has made countless policy choices that restrict and define the choices that people make.  It cannot be otherwise.

Mankiw's two examples are especially (if inadvertently) helpful.  He counsels against increasing the minimum wage, because doing so "would disrupt some deals that workers and employers have made voluntarily."  Not being able to miss out on the chance to join his conservative brethren in attacking the ACA, he then says that "[t]he Affordable Care Act has disrupted many insurance arrangements that were acceptable to both the insurance company and the insured; these policies were canceled because they deviated from lawmakers’ notion of the ideal."

On both of these subjects, the very idea that there is a "no government" -- or even a "less government" -- baseline is simply absurd.  Even if we leave aside the rather notable omission of the effects that the policy choices might have on people who are not parties to the private deals that have been made (for example, children who live in poverty, because their parents are not offered jobs in private deals that pay a living wage), it is simply not logical to conclude that we must leave the current labor market or the current health insurance market alone.

The point is not that I have a better baseline, or that anyone does.  The unstated claim underlying Mankiw's supposed modesty is about as immodest as one can imagine: "We should assume that the laws governing economic activity in the absence of this policy were going to result in economic activity that can meaningfully be called efficient."

If anything, the labor market and health care markets happen to be among the best examples to explicate the idea that the underlying laws are entirely contingent.  Do we have "at will" employment, or not?  Do we say that unpaid overtime was merely a "voluntary" renegotiation of terms, or was it a violation of the original contract (or maybe outright theft)?  Should health insurance be subsidized?  Should it even be something that is negotiated by employers, rather than by individuals?

None of these questions can be answered as a matter of "doing no harm."  They are entirely contingent on what one counts as harm in the first place.  If we saw two people making a transaction, knowing that one of them was going to pay for the transaction with stolen money, there would be no reason to respect that private transaction.  Different sets of laws, however, will lead to different conclusions about what even constitutes stolen money.

Respecting a transaction, because it is the transaction that people would make under the current set of laws, is not modest.  It simply assumes away the problem, and removes the possibility of questioning laws that undergird the privileges of the people whom conservative economists defend.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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