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Date: Friday, 26 Sep 2014 13:23
-- Posted by Neil H. Buchanan

Last month, I wrote a series of posts (here, here, and here) in which I discussed the new tendency among "centrist" liberals to join in with conservatives to attack teachers' unions, and in particular to claim that tenure for teachers is harming schoolchildren.  In my Verdict column today, I return to those issues, describing why uniquely strong job protections are necessary for school teachers.

As I note, the at-will employment model is bad for everyone, and all workers should have due process protections that they currently lack.  However, if only some people will have access to tenure protections, teachers should be at the top of the list.  That conclusion is based not just on what the teachers deserve, but on the positive effects of tenure on the schools overall.  I describe how the empirical evidence fails to show any harm from tenure, and relatedly that there is no evidence that educational outcomes have been improved in jurisdictions that have attacked teachers and their unions.

At the end of the column, I discuss the infamous Vergara v. California decision, rendered in June of this year, in which a California trial court judge declared that three state laws related to teaching -- the law granting tenure, the law making it more difficult to fire tenured teachers, and a "last in, first out" (LIFO) rule for dealing with layoffs -- are in their entirety a violation of equal protection and are thus unconstitutional.  Here, I want to add a few more thoughts about Vergara, which is a truly odd decision, both in its reasoning, and in the way that it has been portrayed in the press.

The Vergara case was much more than simply an attack on the idea of tenure.  Because he was agreeing with an equal protection claim, it would not be enough for the judge merely to conclude that teachers' job protections might allow some less effective teachers to remain employed.  After all, even the fiercest defenders of tenure admit that the whole point of due process is to make firing more difficult, which necessarily means that even people who will ultimately be let go will be employed longer than they would have been in a fire-at-will world.  The point is that, like all forms of due process, the "red tape" is ultimately worth it for everyone, including good teachers and students.  Proving that some ineffective teachers would have been fired sooner is hardly enough to make a claim.

Even if the legal issue had merely been whether tenure is a net positive or net negative, however, the judge in Vergara fell short.  His analysis simply says that "grossly ineffective" teachers are difficult to fire in California, and that they probably were tenured too quickly, because California has a two-years-to-tenure-review model, rather than the more common three years in most states (and up to five years in the remaining states that have tenure).  He then says that LIFO keeps some of the bad teachers on staff, while younger and better teachers are often released.  He says, in other words, that California's laws have negative effects, but he says nothing about the net effect of tenure.  One could thus describe his ruling as "cost analysis," not "cost-benefit analysis."

But the legal standard in an equal protection case is not even "net positive versus net negative."  It was necessary for the judge to further claim that the statutes in question caused some children systematically to receive worse educations than everyone else receives.  Accordingly, the judge needed to show that minority children were being uniquely burdened with bad teachers -- and that that burden was caused by the three statutes.

In my Verdict column, I probably give the judge too much credit, because I allow that at least the LIFO law might be blameworthy when it comes to concentrating the least experienced and least effective teachers in schools in poorer neighborhoods.  (I also fault the judge for treating the three laws as an inseverable whole, which is just strange.)  But even that is highly contestable, because one could easily imagine a system in which (a) people are tenured (or not) after two years, (b) tenured teachers become more difficult to lay off, and (c) the youngest people bear the brunt of layoffs, yet any resulting group of "bad teachers" is spread equally throughout the state.  Again, the most that can be said (and the evidence that the judge relies upon does not even prove this conclusion) is that California's three statutes keep some people on the job who should be let go.

Appellate review of this case should thus be rather easy, at least as a matter of legal argument.  What is equally interesting is that the press reports and commentary about the case describe the outcome as a matter of finding tenure itself to be unconstitutional.  Strictly speaking, the judge did invalidate all three laws, but his reasoning (such as it is) would easily allow California to tinker with its tenure system in order to comply with the judge's ruling.  There is nothing at all that says that tenure for teachers cannot be adjusted in a way that cures the constitutional defects that supposedly currently exist.  In fact, to follow the judge's line of thought, even something as simple as moving to a three-years-to-tenure standard, with no other changes, could do the trick.  Or not.  The decision is truly opaque about what really bothers the judge.

This confusion about what was really at stake showed up in the general media descriptions of the ruling as "invalidating tenure," with most reports seizing on one phrase in the ruling, where the judge says that the system "shocks the conscience."  For example, a NYT reporter last month wrote that the judge "found that tenure protections for teachers deprived students of a constitutional right to an education, and disproportionately hurt poor and minority students," and then quotes the judge as saying that the system shocks the conscience.

The judge does, indeed, import the rhetoric of unconscionability into his ruling.  Interestingly, however, he does not say that California's tenure system shocks the conscience, at least not directly.  He says this: "Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students.  The evidence is compelling.  Indeed, it shocks the conscience."  He then describes a "massive study" that tried to measure the costs (in lost future income) when a student is taught by a grossly ineffective teacher.  The number is high, but the judge shows no understanding of that study's limitations.

The point, however, is that the judge said that it is unconscionable for a student to be taught by a grossly ineffective teacher.  That is not at all the same thing as saying that California's tenure system inevitably results in minority students being taught by such teachers.  Indeed, it does not even say that it is impossible to reform the system so that robust tenure protections are still available, but no students are taught by grossly ineffective teachers.  Whatever else one might say about the so-called rubber rooms in NYC, a system (that has since been abandoned) in which teachers who were thought to be ineffective were taken out of the classroom while they went through due process, it at least showed a way for students to be shielded from people who might be on their way out.

More positively, it is certainly possible to build systems in which grossly ineffective teachers are weeded out, and students are left to be taught by the many good teachers who continue to be underpaid and under-appreciated in the schools.  In fact, it is teachers' unions that have been at the forefront of just such reforms.

Notwithstanding all of this, the people who brought the Vergara case (and, as I note in my Verdict column, are taking this to NYS and nationwide), are not interested in reforming tenure or working with unions.  They are, as I noted in my Dorf on Law posts last month, anti-union ideologues who have duped a fair number of liberals to go along for the ride.  (Heck, reports indicate that even "The View"'s liberals are now anti-tenure.)

At this point, a person would have to be either completely uninformed, or deliberately obtuse, to think that the Vergara case was really about "the children."  Tenure for teachers is a necessary component of a good educational educational system.  Not a sufficient one, but a necessary one.  These lawsuits are just another way to use supposed "bad teachers" as a wedge to remove job protections for everyone.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 25 Sep 2014 11:00
by Michael Dorf

Regular readers of this blog will recall that in June and July, Professors Buchanan, Colb, and I wrote a series of ten posts on the Hobby Lobby case (found at 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10) as well as two Verdict columns (here and here). Having thus devoted a great deal of thought to all of the issues surrounding Hobby Lobby, I was happy to agree to participate in a "debate" on the merits of the case sponsored by the Cornell Law School chapter of the Federalist Society. Thus, on Monday of this week, I debated John Malcolm of the Heritage Foundation.

I put "debate" in quotation marks because the event was not, strictly speaking, a debate. I spoke for about 20 minutes, most of which was devoted to explaining to the audience (a majority of whom were 1Ls) exactly what was at stake in Hobby Lobby, and only in my last five minutes did I lay out some concerns, based mostly on my Verdict column. Mr. Malcolm then spoke for about 25 minutes, occasionally referring to my remarks to agree with my descriptive account of the issues. I used my 5-minute rebuttal to call attention to a few points of disagreement, simply so the audience would not go away feeling cheated. Q&A followed. Having said as much as I have already about Hobby Lobby, I did not expect Monday's debate to lead me to blog about the case yet again, but Mr. Malcolm's answers to a couple of audience questions has drawn me back in.

Unlike some of the past Fed Soc debates in which I have participated, this one was not recorded, so I'll have to paraphrase based on what I recall. I'll undoubtedly get some details wrong but I'm pretty confident that I have the big picture right.

Both in his affirmative presentaiton and partly in response to an audience member's question, Mr. Malcolm drew a distinction between the religious freedom of owners of businesses like Hobby Lobby and Conestoga Wood, on the one hand, and, on the other hand, the objection by employees and prospective employees who do not share the religious views of their employers. Such employees are not forbidden by their employers from obtaining the forms of contraception to which the business owners object, he said, because: a) they could pay for it out of pocket or pay out of pocket for a supplemental insurance plan that covers it; and b) most employers (I believe the figure he gave was 85%) do not have religious objections to providing health insurance that covers these forms of contraception, so the workers could go to work for one of those other firms.

In response to a), I noted that for low-wage employees, the out-of-pocket expenses could be prohibitive. In a follow-up, Professor Nelson Tebbe raised an objection to part b) of the foregoing response, explaining that ordinarily if the government provides some protection for employees, an employer cannot avoid its obligations simply because there may be other employers who satisfy them. He gave an example of an employer who invokes RFRA to defend against a charge of religious discrimination by saying that his (or in the case of a corporation, its) religion requires that only co-religionists be hired.

Before coming to Mr. Malcolm's reply, here's a little background regarding Prof. Tebbe's question. Title VII exempts religious non-profits from the prohibition on religious discrimination, and that exemption was upheld against an Establishment Clause challenge in Corp. of Presiding Bishop v. Amos. Meanwhile, in the Hosanna-Tabor case, the Supreme Court held that the Free Exercise Clause requires a "ministerial exemption" from other kinds of antidiscrimination law. But I think it is clear that--absent a valid RFRA claim--neither Title VII itself nor the Constitution would entitle the religious owners of a for-profit business to escape Title VII liability for discrimination on the basis of religion.

So, how did Mr. Malcolm answer Prof. Tebbe's question? He did not directly address it. Like Justice Alito in his Hobby Lobby majority opinion, Mr. Malcolm said that there is a compelling interest in combating race discrimination, and he seemed to admit that Title VII's prohibition on such race discrimination was narrowly tailored. Why he admitted the latter is not entirely clear. My guess is that many fewer than 15% of businesses would seek a religious exemption from Title VII's prohibition on race discrimination, so if it is a sufficient answer to the women denied contraception that they can find other employment, I don't know why it's not a sufficient answer to the people denied jobs based on race that they can find other employment. I suspect that both Justice Alito and Mr. Malcolm sought to distinguish race cases because they felt some need to do so on political grounds. In any event, by not directly addressing the religion example posed by Prof. Tebbe, and by waxing poetic about how, in a free society, we must sometimes accept some burdens when other people exercise their freedoms, Mr. Malcolm pretty clearly indicated that he thought the race case was exceptional. Whatever he would have said if pressed to answer Prof. Tebbe's question directly, he did not back down from his general view that employees and prospective employees should have to bear the burden of the exercise of freedom by their employers.

Now, as a description of positive law, I think there is probably something to be said for Mr. Malcolm's view. To return to the facts of Hobby Lobby, the female employees are not asserting that they have a religious obligation to use the particular forms of birth control, and even if they were, that would not make out a RFRA claim, because it is their private employer, rather than the government, that is denying them the coverage they seek. So the issue of the employees' need/desire for the particular forms of birth control enters into the equation by way of the compelling interest test. We ask whether there is a compelling government interest in providing them with the birth control, and if so, whether having it come via health insurance provided by their religiously scrupled employer is narrowly tailored to that interest; we do not ask whether the employees themselves have a religious or other right to the contraception, because they do not.

But Mr. Malcolm did not simply give the foregoing answer (although I think what he said included the foregoing, at least implicitly). He didn't just say that the combination of RFRA and the state action doctrine means that the employers have a claim but the employees don't. He thought that this was the normatively right answer, on libertarian grounds. Why? I think the answer is pretty clear from libertarian thought generally, which goes like this:

In an unregulated market, some employers would offer health insurance; others would not. Some of the employers that offered health insurance would include coverage of all forms of contraception; others, including those with religious scruples against what they consider abortifacients, would not. Employees would be free to accept or reject employment based on the package of salary, conditions, and benefits--including health insurance--offered. Thus, in an unregulated market, religious freedom for employers would simply be a result of economic freedom. Ideally, the government would not interfere with the market at all, but if the government does interfere--as by enacting the Affordable Care Act (ACA)--then it at least should grant exceptions to those who are most burdened by the interference, namely those for whom compliance with government regulation conflicts with religious conscience.

The main problem with this story is its initial premise that absent laws like the ACA, the employment market would be unregulated. As legal realists have been pointing out for over a century, law plays an essential role in creating the conditions for market exchange, by protecting property rights, enforcing contracts, etc. So the notion that the ACA or antidiscrimination law interferes with a domain of pre-political freedom is highly problematic. It only makes sense in the Lochnerian world in which the common law is taken for granted as a neutral baseline. If, instead, one begins with the much more realistic notion that the law will inevitably play an essential role in the marketplace, then one needs to offer a normative justification for preferring the freedom of the employers over the often-fictive freedom of the employees to choose where, when, and how to sell their labor.

My goal here is not to rehash the legal realist critique of libertarianism. Instead, I simply want to make an observation (for which Prof. Colb deserves credit, having made the suggestion to me in conversation a while ago): A case like Hobby Lobby is wonderful for the right because it brings together two strands of conservative thought that often pull in opposite directions--social conservatism and libertarianism. Social conservatives like the result and reasoning of Hobby Lobby because it is anti-abortion in the particulars and more generally it provides religious traditionalists with grounds for opting out of progressive regulation; libertarians like the result and reasoning of Hobby Lobby because it recognizes market freedom as a core liberty.

Meanwhile, religious exceptions cases are more ambiguous for liberals (like me). Even while rejecting the libertarian view of the market as neutral, many liberals still support RFRA or its state-level equivalent because we recognize that religious liberty is important, and because we worry that facially neutral laws will sometimes impose serious burdens on members of minority religious groups (like the Native American plaintiffs in the Smith case).

Given these considerations, it is not really surprising that my debate with Mr. Malcolm was not a debate in the sense of two people offering opposite positions. My view is that religious exceptions cases pose hard questions about how to trade off important goals on both sides. His view (and the view of conservatives more generally) is that the issue is just about wholly one-sided.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Wednesday, 24 Sep 2014 11:00
by Michael Dorf

My new Verdict column uses the occasion of the Scottish independence referendum to discuss the international law governing secession. I juxtapose the UK's scheduling of a referendum vote on independence with Crimea's unilateral secession (and subsequent annexation by Russia). I explain and provide some normative support for the general rule in international law: Unilateral secession is impermissible, with the caveat that there is modest support for an emerging norm allowing secession by a badly oppressed minority group.

After I wrote the column but before it went live, I had occasion to talk with a friend who grew up in Ireland and holds views of the English that are not uncommon among natives of the Emerald Isle. He expressed disappointment in the Scottish vote, which he attributed to fear. But he also opined that it was only a matter of time before other secession movements succeeded. He asserted confidently that Hawai'i would be next.

I was surprised. I explained that the U.S. would not let Hawai'i go. He responded that Hawaii's original entry into the union was coerced and that therefore the U.S. had no right to prevent Hawaii's departure. I countered that the history was legally irrelevant. Texas v. White firmly rejected any state right of unilateral secession. Moreover, just five years ago, in Hawaii v. Office of Hawaiian Affairs, the Supreme Court unanimously rejected the argument that President Clinton's formal apology to Native Hawai'ians for the role of the U.S. in overthrowing the Hawai'ian monarchy in 1893 in any way diminished Hawaii's status as a state of the Union.

Not being a lawyer, my friend was not impressed with my invocation of legal authority. But like most non-lawyers with strong opinions about legal questions, he did not think the law was irrelevant; he simply held an unorthodox view of the law, which he nonetheless believed very strongly was surely right. Think about how Tea Partiers talk about what the Constitution "really" means on any number of subjects or, for an example from the left, think about how critics of the SCOTUS campaign finance decisions talk about what the First Amendment "really" means.

Something like my friend's attititude towards law is even held by a fair number of politically active lawyers as well, although they are usually sufficiently sophisticated to be able to distinguish the positive law as declared by authoritative sources from their professedly "true" view about what the law should be. To be sure, even among lawyers, one finds a tendency to blur normative arguments for changing the law with efforts to delegitimatize the existing positive law. But the tendency is much greater among non-lawyers.

How should a lawyer talk to a non-lawyer who espouses an idiosyncratic view of the law? This issue arises quite frequently in practice. A client fixates on some issue that is emotionally salient to him or her but is legally irrelevant, such as someone's failure to apologize or failure to give notice when no notice was legally required. Experienced lawyers learn how to let the client vent but then to move quickly to ascertain the legally salient facts.

Even in the course of client representation, it is probably a good idea for lawyers to allow clients greater room to discuss legally irrelevant matters. As Professor Colb described in a June column on mediation, parties to a legal conflict may care more about legally irrelevant matters than they care about the issues that would come into play if their case were to go to court. A lawyer seeking to help a client resolve a conflict in a way that the client finds satisfying would thus do well to listen carefully to what the client regards as most important to him or her, regardless of what the law considers relevant.

In retrospect, I might have applied that same lesson to my friendly discussion about secession. I came away from the discussion thinking my friend was very badly informed, while he probably came away from it thinking I was a bit of a pedant. Our conversation might have gone better if I had made an effort in my own mind to "translate" his invocation of legal language into frankly normative non-legal claims, and engaged with it on those terms.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 23 Sep 2014 14:58
-- Posted by Neil H. Buchanan

One of the little-known duties of tenured faculty is to review the scholarship of our colleagues, for the purposes of various internal reviews, consideration of submitted articles and books for scholarly journals and academic publishers, and so on.  This often seems like a burden, in that it distracts from one's own teaching and writing, and the scholarship to be reviewed is frequently in fields of law with which one is not intimately familiar.  Often, however, the opportunity to see what is happening outside of one's own corner of the academic universe can be an unexpected pleasure.

Last week, I reviewed an article by one of my GW Law colleagues, Professor Jessica K. Steinberg, who teaches in our clinics.  Prior to her arrival at GW a few years ago, she was on the legal staff of Stanford's Community Law Clinic, working on landlord-tenant disputes and other issues involving low-income clients.  Some of that work inspired her to write In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services, 18 Geo. J. of Poverty Law & Policy (2011).  That article is a pleasure to read, and it raises some interesting questions about the delivery of legal aid services and the difficult choices that well-meaning advocates must make in a time of ever-tighter budgets for low-income legal assistance.

Professor Steinberg's article is, I think, an outstanding example of the value of marrying careful legal analysis with data-driven inquiry.  The article sets out a series of questions about the efficacy of the provision of “unbundled” legal services to the poor, which Professor Steinberg describes as the ethically-dubious (but increasingly popular) efforts in many jurisdictions to give some basic legal assistance to poor clients, usually at the initial stages of a dispute, but without the follow-through (to the litigation phase and after, if necessary) that is the norm for legal representation of the non-poor.

The movement to provide unbundled services, Steinberg explains, is a well-motivated effort to extract the most benefit possible from the very limited pool of legal resources that is available for non-paying clients. In other words, this is not a conservative-liberal dispute, but rather a question about how to grapple with the consequences of conservatives' having won the budget wars.

Given the increasingly severe limitations on legal aid budgets over the last few decades, a new idea emerged: If we cannot give everyone the full "bundle" of legal assistance that a lawyer would typically be expected to provide, perhaps we should instead allow lawyers to provide only small doses of legal advice, on the plausible theory that a little bit of legal assistance is better than none at all.  For example, in a deeply resource-constrained environment, one might well believe that giving each of five clients one-fifth of the legal services that could instead be devoted to one client is likely to result in “more justice” in the aggregate, with four people who would almost surely have lost their cases now having at least a fighting chance to win.  Some will still lose, but the odds will have moved in their favor.

I confess that I find the intuition behind this theory to be quite strong – and, other than the concerns about legal ethics (which, again, normally require a lawyer to provide full soup-to-nuts representation to her clients), Professor Steinberg reports that many in the poverty law community have embraced the strategy.  The core of the idea is that an untutored person, intimidated by the legal system, would not even know where to begin to pursue her case, and would thus be likely to give up without taking even the most basic measures that might have worked to her benefit.  If a legal aid lawyer could only provide the client with, say, an hour’s worth of advice, offering even the most basic information about how to file forms and what to expect as the process unfolds, it seems intuitively obvious that at least some clients would find that they could then win on their own.

The visual image that comes to mind is teaching a child to ride a bicycle. With just a little bit of explanation, some encouragement and confidence building, and a few seconds of having an adult run alongside the bicycle, most children find that staying upright is easier than they thought it would be.   Sure, some will still fall and skin their knees, but the success rate is high.  Especially at the earliest stages of a legal problem, it seems similarly likely that a lawyer's brief intervention is all that would be necessary, for many disputes.

Professor Steinberg questions that presumption, suggesting that we at least need to be aware of the possibility that the legal process might actually require good representation throughout, such that even a person who is assisted in starting the process will lose at the next stage, or the stage after that. To use a completely different metaphor, legal representation might be like a bridge across a river. If the river is a mile wide, and we build only one-tenth of a mile of bridge, people who try to cross the river will still eventually get wet, and many will be swept away.

Having challenged the conventional wisdom, showing that what looked like a clearly optimal strategy might not be such an obvious winner, Professor Steinberg properly concludes that this is a question ripe for empirical inquiry.   Can we track whether people who receive unbundled services experience measurably better outcomes than those who receive no aid at all (and, obviously as a related hypothesis, worse outcomes than those who receive the full bundle of legal assistance)?

In the core section of her article, Professor Steinberg reports preliminary results of a modest empirical study, in which she “reviewed and analyzed all 474 evictions filed in San Mateo County from May 19, 2009 to August 7, 2009, plus 20 eviction cases handled by the Stanford Community Law Clinic between September 2007 and May 2009” (article at 480).  Her findings are surprising and sobering.  She concludes that, although some intermediate outcomes improve for the recipients of unbundled services, the outcomes that ultimately matter – evictions, and money paid to (or received from) landlords – stay the same.  The clients, it seems, really are led to the edge of the metaphorical unfinished bridge, at which point they inevitably plummet into the river.  (I confess that I have tried to figure out a way to combine my metaphors, imagining a lawyer pushing a poor client on a bike off the edge of an unfinished bridge, but sometimes metaphors must simply to be abandoned, once they have served their purpose.  I think it was when I was going to add sharks to the waters below that I knew things had gone too far.)

Professor Steinberg's statistical analysis is straightforward, comparing the experiences of the different groups of parties with respect to outcome-based questions (successfully avoiding eviction, money exchanged between landlords and tenants), showing that there is no statistically significant difference (based on chi-square tests) between the outcomes of people who receive no assistance versus those who receive unbundled assistance.  Professor Steinberg then compares the interim success of the different groups, showing that the recipients of unbundled services do avoid some procedural errors, but that ultimately it does not matter.

She also demonstrates that the small, lucky group of people who do receive the full bundle of services really does experience dramatically better outcomes than either of the other two groups.  She does not emphasize that point, I suspect because that outcome seems so obvious, but it is important to note (as I discuss below) that we are not talking about a client base that loses all the time, no matter whether they have lawyers or not.

With the dataset that Professor Steinberg assembled, there is no reason to go for overkill with a multiple regression analysis, and her approach gleans plenty of interesting information from those data.  The more fundamental question is whether her data can be treated statistically as if they were from a randomized experiment, which is what we implicitly assume when we apply various tests of statistical significance.  If the data are not actually randomized, then it might be the case that we could learn nothing at all from the analysis.

Appropriately, Professor Steinberg explains that the data could be tainted by self-selection bias. Essentially, she suggests that there could be a good reason that the recipients of unbundled services ultimately lose their cases: Their cases might be losers!  It is possible, after all, that the people who are completely unrepresented do not seek representation because they have figured out a good way to proceed, and there is an obvious merits-based argument on which they could win.  Perhaps only those people who see no good arguments on their own then apply for unbundled representation.  If that were the case, it would actually be an extraordinary affirmation of the power of unbundled legal services that the partially lawyered clients could achieve outcomes as good as (or, more accurately, no worse than) the people who actually had good and obvious arguments in their favor in the first place.

Professor Steinberg acknowledges (even highlights) this potential problem, but she argues (and I agree) that the results of her statistical comparisons are still useful.   She writes: “The purpose of the study was not to reach incontrovertible or generalizable conclusions about the provision of unbundled legal services, but instead to use the resources available, and an ethically-feasible methodological design …, to make a preliminary assessment of the efficacy of one iteration of the unbundled model” (article at 457) (emphasis added).  Having acknowledged that the non-randomization of the data offers an alternative hypothesis to explain her findings, she has set the stage for further research, providing “at least some evidence-backed information about [unbundled legal services’] impact on procedural and substantive justice for litigants” (id.).

I would analogize this to the “burden-switching” rule in Title VII litigation.  If we see an employment category in which 90% of the workers are men, then the employer is obligated to provide a non-discriminatory explanation for the disparity.  If such an explanation is provided, then further inquiry is necessary.  Similarly, in empirical research, one does not say, “Well, you have not taken everything into account in this single study, so we will simply ignore your findings.”  Instead, when we identify a statistically interesting result, we hypothesize about possible alternative explanations, precisely because the initial finding piques our curiosity.

As an alternative to Professor Steinberg’s findings, imagine that she had instead found statistical evidence that the partially represented clients won as often as fully represented clients do, which is four times higher in the case of evictions than completely unrepresented parties’ results.  (See article at 483, Table 1).  That would be such a strong confirmation of the “bicycle analogy” above that it would lead to a very different research agenda than her actual findings suggest.  More importantly, for people who must make decisions about real-life policies in the face of incomplete information, this alternative set of findings would have provided extraordinarily strong reason to redirect resources into unbundled services.

This difference in the legal outcomes for the fully lawyered clients also offers a reason to think that the self-selection possibility described above is not biasing the results.  After all, if the idea is that the people who do not bother to go to the clinic are the ones with the stronger cases, then the people who walk through the clinic doors all have presumptively weaker cases.  If the full bundle of legal services is so much more successful than unbundled services (and no services at all), however, then the problem cannot be that the cases cannot be won.  We might then reasonably infer that it really is the provision of bundled services that changes the outcomes so dramatically.

In any event, Professor Steinberg does not at all over-claim in the paper, and she fully acknowledges that this is the beginning of a potentially important inquiry, not the end.  Even so, her findings would be extremely important for any policymaker to take into account when allocating scarce legal aid resources, at least offering reasons for skepticism in the face of suggestions to expand unbundled legal services.

In short, this article is only as imperfect as every other empirical study inevitably must be.  I am often skeptical of what now counts as "empirical legal studies," because so much of that work (like the work on which it is modeled from Economics departments) is technique-obsessed, focusing on the latest statistical fads rather than thinking carefully about the underlying policy questions.  Because of Professor Steinberg's article, we know more about an important policy question than we used to know.  That is the ultimate test of good scholarship.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 22 Sep 2014 11:00
by Michael Dorf

Speaking at the University of Minnesota Law School last week, Justice Ginsburg made news when she said that there would be "some urgency" for the SCOTUS to take a SSM case if the Sixth Circuit were to reject a right to SSM, but a judgment that falls in line with other circuits would mean there would be "no need for us to rush." Although SSM opponents seized on these remarks as evidence of disqualifying bias (good luck with that), in fact the more natural reading of Justice Ginsburg's juxtaposition of the two situations reflects the application of a straightforward certiorari criterion: Until at least one federal appeals court rules against a right to SSM, there will be no "circuit split" on the issue warranting the immediate attention of the SCOTUS.

I think that is almost certainly how Justice Ginsburg meant her remarks (although I also think it just about certain that, when the Court decides a challenge to a SSM ban, she will vote to invalidate it). But I want to suggest that the application of the wait-for-a-split approach to SSM would be anything but routine, given the Court's prior disposition of the two cases seeking stays of judgment pending appeal. In January in the Utah case and again last month in the Virginia case, the Court--without any registered dissents--stayed the enforcement of judgments invalidating SSM bans. Denial of cert would terminate those stays, clearing the way for same-sex marriages in all of the states in circuits that have ruled in favor of a right to SSM. But if the Court then eventually grants cert in a different case, and rules against a right to SSM, there will be a good deal of uncertainty surrounding the status of the couples who married in the interim.

As I explained last December, I think the relevant federal courts precedents are probably best read to grant--at most--protection to the interim marriages for acts performed while they were deemed valid, but that federal courts lack power to "grandfather" couples married during the pendency of a subsequently reversed federal judgment. However, my analysis in that blog post was based on the assumption that federal court A says that the law of state X is invalid but that the judgment is later reversed. In the hypothetical scenario we're now imagining, the judgment would not be reversed; it would be affirmed; but following that the governing law would change. How would that affect things?

Once again, I think we would see substantial legal uncertainty. In states that failed to appeal rulings invalidating their state SSM bans, particular plaintiffs would be entitled to be treated as married. However, anyone who was not a party to the litigation probably would not be entitled to be treated as still married. Why not? Because the general rule says there is no non-mutual issue preclusion against the government, so these couples could not take advantage of the earlier judgment as a matter of preclusion law. And the circuit-level precedent invalidating the SSM ban would be wiped out by the (hypothesized) subsequent SCOTUS ruling upholding SSM bans.

Consequently, I conclude that if there is any substantial chance that the SCOTUS will eventually uphold SSM bans, then the same sorts of factors that led it to grant stays of judgment in the Utah and Virginia cases should lead it to grant cert in one of the pending SSM cases now.

To be sure, there is another option besides granting or denying cert. The Court could choose to neither grant nor deny the pending cert petitions but simply "hold" them pending the development of a circuit split. But doing that--while the stays of the underlying judgments remain in place--would seem unfair to the victorious plaintiffs and would create the impression that the Court is simply trying to duck the issue as long as possible, contrary to another claim by Justice Ginsburg.

In light of the foregoing, a decision actually to deny cert in any of the pending SSM cases would be a very strong signal that the Court's ultimate decision on SSM is a foregone conclusion in favor of invalidating state bans, because only by invalidating SSM bans would the Court avoid the uncertainty that would follow if multiple states had to deal with interim same-sex marriages that became retroactively illegal.

 So . . . Justice Ginsburg may have only meant to make a bland statement about the operation of the Court's cert criteria, but if she thought through the consequences of what she was saying, then she was signaling a likely merits ruling from the SCOTUS in favor of a SSM right: A Court on which not even four Justices feel any urgency to resolve the SSM issue until an appeals court rules against a SSM right is a Court that is overwhelmingly likely to recognize a right to SSM.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 19 Sep 2014 11:30
by Michael Dorf

Ever since Roe v. Wade in 1973, pro-life politicians at the state and federal level have sought to undermine the abortion right in two main ways. First, by enacting new abortion restrictions and making their voices heard in the judicial selection process, they seek to have Roe overruled or, failing that, substantially weakened. Second, they have enacted laws and policies that do not curtail the right in principle but make it substantially more difficult to exercise. A recent piece by Jeff Toobin in The New Yorker calls attention to both strategies in the context of a case challenging a Texas statute now before the US Court of Appeals for the Fifth Circuit. The law requires that abortions be performed in ambulatory surgical centers.

Toobin is a gifted popularizer but, as I have noted before, his knowledge of constitutional law is not very deep, and this latest piece shows it. He says that Justice O'Connor "almost single-handedly . . . rewrote abortion law," citing the 1992 decision in Planned Parenthood v. Casey. But the lead opinion in that case (a majority on some points, a plurality on others) was highly unusual in that it was jointly authored by Justices O'Connor, Kennedy, and Souter. This is the opposite of acting single-handedly. To be sure, O'Connor's name appears first on the lead opinion, but only because, pursuant to the Court's customs, she was the most senior of the three co-authors, followed by Kennedy, then Souter.

Toobin appears to compound his error in attribution of authorship by also misreading the substance of the Casey opinion in one important way: He says that in Casey the majority adopted O'Connor's position, but in fact, the "undue burden" test the majority announced in Casey differed subtly from the test that Justice O'Connor had been previously championing under the same name. The most important difference is that the Casey joint opinion announced that abortion regulations with the purpose or effect of placing substantial obstacles in the way of a woman seeking an abortion would be invalidated. That purpose prong made the joint opinion undue burden test more rigorous than the version that Justice O'Connor had previously championed.

Perhaps because Toobin does not realize what was distinctive about the Casey test, he treats the phrase "purpose or effect" as a kind of undifferentiated whole. Thus, even though he is critical of post-Casey decisions by the SCOTUS and the lower courts that appear to cut back on the abortion right, he appears to miss what should be obvious: that the debate over just how substantial an obstacle must be before it amounts to an undue burden should be quite unnecessary to decide these cases. Laws like the Texas provisions before the Fifth Circuit--and like the Mississippi one invalidated last month in a ruling discussed by Professor Colb in a Verdict column--are obviously unconstitutional because they have the purpose of making it harder for doctors to provide abortions, and thus for patients to obtain them. The medical safety justifications recited by the legislators who vote to enact these laws and the government lawyers defending them are pretextual. As Professor Colb notes, the Fifth Circuit appears to be simply ignoring the purpose prong of Casey.

Now it might be objected that legislative purpose tests are a bad idea. Both liberal and conservative justices have sometimes made this point in objecting to purpose tests. For example, here is Justice Scalia objecting to a purpose test under the Establishment Clause in his dissent in Edwards v. Aguillard:
[D]iscerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task. The number of possible motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.
To which one is tempted to say (after shaking his or head over "mad at his wife"), well, yes, subjective motive inferred from direct evidence of subjective motive will frequently appear indeterminate, but motive can often be inferred from what a law objectively does, as in Aguillard itself. Justice Scalia credulously accepted the Louisiana legislation's assertion of a purpose to promote "academic freedom" in a law that forbade the public school teaching of evolution unless "creation science" was taught alongside it. Because creation science is an oxymoron, it should have been obvious--and in fact was obvious to the majority in Aguillard--that the legislature's actual purpose was to advance a religious view.

Likewise with the hospital admitting privileges requirements and similar recent regulations that specifically target abortion services, but notably do not target other medical procedures that involve equal or greater medical risk. As is so often true in an age when news operations are being slashed, a comedic take gets closest to the truth, in this instance a July story in The Onion titled New Anti-Abortion Legislation Requires Doctors to Scale 18-Foot Wall Surrounding Clinic. Among the made-up quotations attributed to the (actual) governor of Mississippi is this: “Any physicians lacking the necessary upper body strength to pull themselves up and over an 18-foot wall have no business performing such a potentially dangerous procedure.”

So far as I'm concerned, nearly all of the real cases can be decided on a know-it-when-you-see-it basis, but if one wants to be a bit more rigorous about the matter, one can apply some sort of means-ends scrutiny. If there is no good reason to require hospital admitting privileges or an ambulatory surgical center for abortions but not for other procedures with comparable medical risks, then a court should be able to infer that the purpose of such laws is to burden the abortion right and invalidate them under Casey's purpose prong.

If the concern is one of judicial competence, it would appear that judges are sometimes better positioned to determine that a law serves an improper purpose than to determine that its effects exceed some threshold of impermissible harm. To determine the former, they need only examine the face of the law and take evidence on whether the law can reasonably be expected to materially advance permissible purposes (such as health) as opposed to using such permissible purposes pretextually with the goal of restricting abortions. By contrast, cases under the "effects" prong of the Casey undue burden test have often seen courts go down rabbit holes trying to figure out which effects to count and how to measure them.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Thursday, 18 Sep 2014 15:00
-- Posted by Neil H. Buchanan

As of this writing, the commissioner of the National Football League is Roger Goodell.  Given the controversies that have recently embroiled the league (spousal abuse, child abuse, and the ongoing litigation regarding how the league concealed medical evidence regarding brain injuries), predicting Goodell's expiration date has become a bit of a parlor game.  I confess to being interested in that question on its own merits, but here I want to use that issue to discuss some questions about how leaders of organzations are evaluated, and what can get them fired.  Finally, I will ask whether the NFL's owners are showing themselves to be bad businessmen.

One theory regarding Goodell's job security was offered last weekend by the Times op-ed writer Joe Nocera.  To regular readers, I promise that this post is not primarily about Nocera's own puzzling ability to keep his job.  At some point, it just becomes sad.  There are bigger issues here, and Nocera is certainly not the only person to offer the following explanation: The NFL's owners are keeping Goodell on the job because he made them all rich (or, more accurately, even richer than they already were).  There is a certain casual appeal to that argument, but ultimately it makes no sense.  More interestingly, if the owners really are driven by that illogic, it would tell us some surprising things about their business acumen.

Allow me to offer two reasons why the explanation above -- that the owners are loyal to Goodell because he made them richer, which I will call the Simple Theory -- makes no sense.  The first reason is simply that Goodell might no longer be useful to the owners.  They might decide that they need a fall guy, even if he was doing exactly what they wanted him to do until now.  They also might suddenly be realizing that he was not, in fact, doing what they wanted him to do, and that they trusted him too much.  Or, they might conclude that Goodell, even if he was great at his job until now, is not equipped to handle the new environment in which the league is operating.  Certainly, Goodell's fidgety interview on a major network last weekend suggests that he is not good at what currently needs to be done.

All of that, I think, is pretty obvious, even for people who are initially drawn to the Simple Theory of job tenure.  Things change, and personnel needs might change.  The other reason that the Simple Theory makes no sense, however, has nothing to do with changed circumstances.  The Simple Theory wrongly assumes that Goodell is the reason that the NFL thrives.  We are told, for example, that the top three franchises by value in the league could now sell for two (New England) or three (Dallas) times what they could have fetched when Goodell took over in 2006.  Even the embarrassing Washington franchise has gone from $1.4 billion to $2.4 billion in resale value.

That is surely impressive.  But why is that proof that Goodell should stay in his job?  Why assume that he caused the growth?  (Again, even if he did cause it, his continued presence might begin to erode it.  In fact, even if he did not cause the league to prosper in the first place, he could nonetheless now cause the league to wither.)  The commissioners who preceded Goodell, Pete Rozelle and Paul Tagliabue, also presided over impressive expansions of the league, with Rozelle in particular presiding over an era in which the league doubled its franchises and far surpassed any other sport, including baseball, to become the one true national pastime.  Even if we think that Rozelle was a genius who is a but/for cause of the NFL's success, which is a plausible argument, that does not rule out the possibility that Tagliabue and especially Goodell were simply caretakers who are being given credit for other people's achievements.  To quote President Obama out of context: "You didn't build that."

Still, there is something to be said for not screwing up, right?  Maybe, but the question is why anyone would assume that only Roger Goodell could have done for the league what he did over the past eight years, and why other people are incapable of taking over for him now (even if circumstances have not otherwise changed enough to make Goodell an outright liability).  Is Goodell the only non-screwup out there?  The blurb for Nocera's column on the Times website reads: "Roger Goodell is very good at doing exactly what his owners want."  Again, maybe.  But why assume that no one else could be that good.  He received $44 million in compensation this year.  I would imagine that an awful lot of talented managers would be willing to give it a try.

As I noted above, the Simple Theory is obviously wrong, or at least incomplete.  No one who took even Econ 101 should be convinced by it, because it focuses on the wrong question, and it defies the basic logic of competitive markets.  Just because something works should not stop profit maximizers from seeking to increase revenue and decrease costs.  No sensible capitalist would keep Goodell in place for the reasons that the Simple Theory proposes, because those reasons are backward-looking, which is not how one maximizes profits.

Which brings me to a more interesting point.  Would the billionaire owners of the NFL's teams make such a basic error, when it comes to their decision about a mere employee, which is what Goodell is?  Certainly, the NFL is a "What have you done for me lately?" kind of place.  Players are dumped unceremoniously every day, used up when their limbs and heads are beyond repair, and they are replaced by willing younger and (temporarily) healthier men.  Even the coaches are on the shortest of leashes, with the day after the final regular season game each year now known as "Black Monday," because eight or so teams fire their coaches on that day.  Some coaches are fired mid-season.

One possibility is that the owners view the players and coaches are mere cogs in the machine, while they view Goodell as one of the elite.  They know him, they like him, they trust him, they appreciate what he has done for them.  The question is why they would view him as an exception.  As I discussed in my Dorf on Law post last Tuesday, there is a tendency even among mainstream economists to attribute profits to the leaders of corporations, in what is essentially a Great Man Theory of executive pay.  Maybe the owners see Goodell as a great man, and thus they defer to his greater expertise.

Surely, however, the owners do not buy into that theory.  There is at least some logic to the idea that coaches matter (although that evidence is weaker in the NFL, whereas one or two college coaches really do seem to bring success with them wherever they go), but why would NFL owners think that a mere commissioner is the source of their success?  Yes, the Dallas franchise is now worth three times more than it was in 2006, but it is impossible to believe that Cowboys owner Jerry Jones thinks that Goodell is the reason why.  Jerry Jones undoubtedly believes the Great Man Theory, but he is the great man.

In a post last month, I suggested that the owner of the disgustingly-named franchise here in Washington was leaving money on the table by fighting against those who have demanded that the team adopt a new name and mascot.  Maybe Snyder is so committed to being in charge, and so besotted with his memories of being a boy attending Washington games at RFK Stadium, that he is willing to lose money.  I doubt it, but it is possible.

One could certainly try to make the case that Snyder and other NFL owners are so detached from reality that they simply do not see what is in their own best interest.  Again, Goodell's continued employment by the league fits that theory well, although it can also be explained by other theories.  Most of the owners, however, became billionaires by running other businesses.  There is little reason to believe that they were more in touch with their employees and customers back then, given the cocoons in which top executives and owners live more generally, than they are now.

In any case, it is difficult to take seriously the idea that Roger Goodell is being rewarded now for his wonderful service in the past.  One would think that the owners, even taking into account any don't-rock-the-boat conservative bias that they might harbor, would be more than willing to believe that the market for managerial talent is just a bit deeper than one man.  If not, then maybe the business acumen that made them rich has now abandoned them.  Someone would need to explain, however, why these men suddenly believe that their buddy in the spotlight is more important than they are, and more important than their sponsors and their customers.

I am enough of a skeptic of orthodox economics to believe that irrationality can rule the day.  But the particular brand of irrationality that drives the Simple Theory of Roger Goodell's job status is truly difficult to take seriously.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 17 Sep 2014 12:30
by Sherry F. Colb

In my column for this week, I take up the issue of whether prohibitions against incestuous marriage are distinguishable from prohibitions against same sex marriage (SSM).  The reason to discuss this issue is that various opponents of SSM (and of same-sex consensual sexual relationships more generally) have sometimes invoked prohibitions against incest in defense of their position. They say something like this:  "people seem to be okay with incest laws, so why do they suddenly become offended by laws against same-sex relationships, which stem from the same moral foundation?"  I propose in my column that there is at least one  important distinction between anti-incest laws and anti-gay laws that make the latter far more suspect and objectionable than the former. Nonetheless, I do not conclude that bans against incest or incestuous marriage (for consenting adults) are therefore legitimate, only that they are not as bad as SSM bans.  One reason to draw distinctions like this is that Justice Scalia famously lumped many different sorts of state laws against sexual behavior (including adult incest and homosexuality) into one category and implied that such laws are all of a piece.

One problem with Justice Scalia's category is that some of the laws in it inflict greater harm on their targets than others do.  I argue in my column that laws prohibiting same sex marriage (and same sex sexual activity more generally) fall into the "more harmful" category, while laws prohibiting incest (or incestuous marriage) fall into the "less harmful" category.  In this post, I want to focus on a different problem with the argument implicit in Justice Scalia's list and in some other writings I have recently encountered on the issue of sexual liberty.  Here is Justice Scalia's claim, in Lawrence v. Texas:  "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision [invalidating the Texas law criminalizing same-sex sodomy]."

In reading the different items on the list, the inference I draw is that Justice Scalia is identifying what he regards as laws that are (in his view) legitimate but that do not conform with the "harm principle." The harm principle holds that the law may only legitimately limit individual liberty to do as one pleases when one's chosen actions would inflict harm on others.  I understand the quotation in this way in part because Justice Scalia makes a point of qualifying his reference to incest by saying "adult incest."  Presumably, then, Justice Scalia is of the view that the Supreme Court's decision in Lawrence does not call into question prohibitions against incest that victimizes children, and that is because such prohibitions target behavior that harms others.  For the same reason, presumably, Justice Scalia does not place rape prohibitions on the list of newly vulnerable state enactments.

There is at least one item on Justice Scalia's list, however, that I would argue is "not like the others."  That item is bestiality. Bestiality is human sexual activity that involves a nonhuman animal.  There are at least two ways in which one might be inclined to characterize such behavior as harmless (and therefore as falling into Justice Scalia's category of properly decriminalized behavior after Lawrence).

The first approach is what may drive Justice Scalia's classification of bestiality:  because sexual conduct by humans that involves nonhuman animals inflicts no harm on other humans, it follows that it is harmless,  On this view, so long as no human is experiencing pain, suffering or death, the activity is harmless (and thus must find justification in some moral principle other than the harm principle). When the victim is a nonhuman animal, then, there is no victim at all.

This view strikes me as having very little to recommend it.  Hurting "others" ought logically to extend to hurting anyone who can actually experience being hurt.  That is presumably why, despite the fact that fetuses are not regarded as persons for Fourteenth Amendment purposes, no one has criticized laws banning "partial-birth abortions" as aimed at "harmless," "victimless," or "innocuous" conduct in the way that, one would probably criticize, say, Justice Scalia's listed state law prohibiting masturbation.  If a law criminalizes actions that inflict harm on a nonhuman animal, then the law can properly be justified as consistent with the same harm principle that we would use to test a criminal law prohibiting murder, aggravated assault, or rape.  To suggest otherwise is to claim that one can only cause "harm" to other humans.

A second way of defending the classification of bestiality as a "victimless" or "harmless" crime is more sophisticated than the first.  It posits that one could come up with particular examples of human sexual behavior involving nonhuman animals in which the human arguably does not inflict harm on the nonhuman animal. One such example might be where the nonhuman animal initiates the sexual interaction, and the human uses no force on the animal.  Because such interactions are possible and may occur sometimes, it follows -- by this logic -- that laws against bestiality are illegitimate, since one could capture the narrower category of "harmful" bestiality by prohibiting that directly rather than by placing the entire category of behavior off limits.

Attorney Antonio Haynes (who is my former student) makes a subtle, scholarly, and sophisticated version of the argument I have just described in a forthcoming law review article.

There is  insufficient space in a blog post to do justice to his article (which also makes other points about bestiality), but notwithstanding my admiration for the care and craft that the article displays, I do want to register skepticism about the bottom line that Haynes reaches.  

To my mind, real-life sexual interactions between humans and nonhumans are generally of the "harmful" sort, and the few "consensual" human-nonhuman sexual interactions that might in theory occur are themselves highly suspect, and thus properly stigmatized as well.


In the European countries where bestiality is legal, the enormous downside of such decriminalization is clear: animal brothels or "erotic zoos" exist, and so do the disturbing and sad photographs of victimized animals on the internet.  Though a country like Denmark technically permits only bestiality that does not result in animal suffering, the photographs that I can never hope to un-see evidence unwanted and forced sexual attacks that plainly caused pain and suffering and should properly be characterized as the rape of the animals involved (dogs and nonhuman primates, in particular).  To allow bestiality is, predictably, to disinhibit those who are inclined to commit sexual violence against animals, and it is difficult to imagine how a brothel in which an animal is held captive could be a place that protects against the "harmful" kind of bestiality.

But what about those individual cases in which the nonhuman animal initiated sexual contact and "wanted" a sexual relationship with a human?  I have to say first that I am extremely skeptical of people who claim that a nonhuman animal "wanted" to have sex with a human.  Having interviewed recidivist child molester Leroy Hendricks about his own history of offending, I can attest to the self-delusion of which sexual predators are amply capable in assessing their sexual "relationships" with their targets.  Hendricks told me, for example, that unlike another man who was in the "sexually violent predator" program in Larned, Kansas (a man Hendricks pointed out to me), he (Hendricks) never raped a child.

To be sure, unlike human children, adult nonhuman animals are understood to be capable of engaging in consensual sexual relations.  That is in fact how sexual reproduction occurs among nonhuman animals (at least those living outside of human captivity).  But this fact seems to me largely irrelevant to bestiality. 

Humans do not ordinarily regulate  sexual relationships between nonhuman animals who live outside of our farms, zoos, and other captive environments.  This is not because we believe that the relationships are all consensual (some animals, in fact, engage in forced copulation) but because we see no beneficial role for human laws in trying to help wild animals avoid unwanted sexual interactions with other wild animals.  Our intervention, in other words, would likely make animals' lives far worse than they are, so we treat at least those animals we do not "own" as separate sovereigns (until we wish to kill them, that is). By contrast, we do have an interest in intervening in sexual relationships between humans and nonhumans, since we know that a great proportion of these "relationships" are violent and harmful, and we have no biological reason to think that any are essential to the happiness of other animals.

Stated differently, there may be humans who feel that they can experience sexual fulfillment with other animals, but it is no more the job of nonhuman animals to fulfill the sexual needs of human adults than it is the job of human children to do so.  And to the extent that we worry that we are "depriving" nonhuman animals of desired relations with humans, we have little evidence for that worry.  Animals living their lives freely, outside of human captivity, rarely approach humans for sexual liaisons, at least so far as I am aware.  

To decriminalize bestiality is thus to provide assistance to those humans who wish to have sex with other animals; it does nothing for animals, and it exposes them to significant harm. And for the unusual cases in which the animal seems "interested," an analogy is worth considering.  When a human prisoner appears to a prison guard to be "consenting" to having sex with the guard, we have good reason to be suspicious of the consent and to treat as categorically non-consensual any such sexual relations.  The same holds true for "relations" between a human and a nonhuman animal over whom the human has sufficient control to be touching him or her sexually.

At this point, I think it important to note (as Haynes does, albeit for a different reason) that the harms involved in bestiality are very much like the harms involved in "raising" animals for food (and thus in consuming the animal products "raised" for such use).  In both cases, humans seek some kind of pleasure (culinary or sexual).  In both cases, the kind of pleasure in question is in general an important part of human flourishing, i.e., to be able to eat food and to be able to express oneself sexually. Nonetheless, one can eat healthfully and even decadently without demanding that animals be bred into existence, subjected to mutilations, and ultimately slaughtered -- as all animals in the flesh, dairy, and egg industries are.  And one can likewise express oneself sexually without involving a vulnerable captive animal who one may have a vested interest in believing reciprocates the human's desire.

Beyond these significant commonalities, in which both animal product consumption and bestiality inflict harm on nonhuman animals to serve human interests that could be served in other ways that do not involve cruelty to animals, there are other parallels too. In animal agriculture on land, breeding commonly takes place through what is euphemistically called "artificial insemination" but which in fact involves humans stimulating the breeding male to ejaculate and humans shoving their hands and/or tools into the anuses and vaginas of female animals.  This is what one pays for when one purchases dairy, eggs, and flesh foods, and it looks a lot like bestiality of the forcible sort.

In short, there are important differences between the legal prohibitions that  Justice Scalia places in the "parade of horribles" list in his  Lawrence dissent.  Bestiality, unlike other behaviors on the list, is almost always harmful, and if one understands what makes it harmful, one can easily see that consuming the "food" created through animal exploitation and slaughter is no more victimless than bestiality.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Tuesday, 16 Sep 2014 15:00
-- Posted by Neil H. Buchanan

With very few exceptions, the Dorf on Law posts and Verdict columns that Professor Dorf and I write are fully independent projects.  That is, they are not only solely authored, but each of us rarely even knows in advance what the other will be writing about.  This is, in part, a matter of pure logistics and conservation of energy, because it would frankly be too time consuming to coordinate our topics.  It is also, of course, a matter of different interests and areas of expertise.  Most of the time, each of us just waits to see what shows up on the days when the other is writing.

It was, therefore, something of a pleasant surprise to note last week that our writings on Wednesday through Friday (Professor Dorf's Verdict column and his Wednesday and Friday Dorf on Law posts, along with my Verdict column and Thursday post) all converged on the same theme.  Working from very different starting points, we both noted how the presumption that conservatives use cold, hard logic, while liberals allow their hearts to bleed, has been turned upside down.  As Professor Dorf put it on Friday, the "familiar structure" of the claim goes like this: "Conservatives say that some well-meaning policy based on an emotional reaction of liberals will actually be counter-productive."

Here, I want to explore some further examples of how this presumption is upside down.  The emerging picture is one in which conservatives not only engage in fact- and logic-challenged argumentation based on heated emotions, but they also are doing so in an effort to be liked.  That is, notwithstanding chest-pounding claims (like some of the lines that I quoted in my post on Thursday) that amount to saying, "I'll do what I want, and you can all suck it if you don't like it, because I don't care what you think," the reality is that much of conservatives' energy is spent trying to get others to see that they are really good guys.

The perfect distillation of the "screw you" attitude, perhaps, was found in the 80's movie "Wall Street," in which Michael Douglas's Gordon Gekko character smirks while saying, "Greed is good.  Greed is right.  Greed works."  In some ways, that famous speech really can be seen as a big F-U to the rest of the world.  On the other hand, Gekko is speaking not to the world at large, but to a bunch of shareholders who are angry about Gekko's tactics.  He is saying, in essence, that they are being emotional, and he is there to set them straight.  Stop hurting yourselves, you chumps!

But in the real world, we hear that kind of talk from conservatives all the time, and it is not just in speeches to fellow shareholders.  It is impossible to shake the feeling that, for all their talk about how they do not care what other people think, conservatives dislike being disliked.  They fund think-tanks and influence academia (Olin money, anyone?) not just to justify conservative policies on efficiency-based grounds (grounds that are, as I have argued, infused with normative beliefs and are far from being objective), but to make people say, "You know, these guys actually have our best interests at heart."

The example that I discussed last Thursday, the conservative business writer Josh Barro's aggressive defense of the "ownership rights" of people who (like him) want to recline their seats on airplanes, no matter how inconsiderate that is of other people, provides some insights into this phenomenon.  The obvious tip-off is his contrived attempt at the end of his NYT piece to turn the story into a conflict between short people and tall people.  His argument, if you can call it that, boils down to this: "You people who care so much about other people's feelings should think about how great tall people already have it.  How dare you impose on those put-upon short people!  I'm the one who really cares about fairness and civility."

Why bother saying any of that?  What is it that makes it so important to misapply economic theory to justify one's own selfish behavior?  Why not simply embrace the ethos of "I've got mine, Jack" and be done with it?  It is possible, I suppose, that what is really going on here is an attempt by conservatives to condescend to talk to liberals on their own childish grounds, attempting to demonstrate that conservative ideals can be repackaged as mushy, emotional nonsense that will convince the feeble-minded.  But the defensiveness is too intense to support that explanation.  The rhetoric is generally not, "Let's think about how this seemingly selfish behavior is ultimately for the betterment of mankind," but instead heatedly shouts, "I am NOT a bad person."

This fits into a point that I made in a Verdict column a few months ago, when I described the obvious defensiveness of the conservatives on the NYT op-ed page who were arguing against income redistribution.  Both of those authors were, I wrote, obviously trying to work through their longstanding emotional pain from being shunned by their liberal peers, sneering that upper-middle-class liberals are not really concerned about the poor, but are instead obsessed about not being rich enough, and that they are really all a bunch of hypocrites.  "You call me selfish, but I know that you're selfish, too.  I'm just honest about it!"

This story also helps to explain a political meme that has puzzled me for quite some time.  As I noted in detail in a post last December, conservatives' go-to move is to accuse liberals of "envy," in response to liberals' attempts to moderate some of the income inequality in society.  Supposedly, we liberals wish to visit "vengeance" on the successful people who are life's real winners.  I have, at various times, likened this to a child whose mother soothingly says, "Don't worry, Dear.  Those kids who hate you are just jealous."

As I have explained (with as little emotion as possible), the liberal case for redistribution need not (and, as far as I have ever heard, does not) rest on any such emotional justifications.  I have never heard anyone say (even behind closed doors) that the real reason to tax the rich is to take them down a peg, nor have I ever heard a liberal say or imply that they worry about the rich being inherently superior in some way.  Indeed, we also hear the complaint from conservatives that liberals look down their noses at rich people, which is inconsistent with conservatives' claims that liberals are envious.  But when one is being emotional, of course, it is possible to believe two contradictory things.

Viewed in this light, the claims that liberals are acting out of emotion, from jealousy and so on, are a matter of projection by conservatives.  "Stop being so emotional!" becomes a way of dealing with one's own darkest fears.  If only people could see that our motives are good, conservatives seem to say, they would stop calling us names.

As Professor Dorf argued on Friday, the point is not that it is liberals who are the truly cool, rational players on this stage.  Instead, it is important to move past this archaic notion that reason and emotion are entirely separate spheres, and instead to understand how empathy, pathos, and other emotions can and should affect legal and policy analyses.  As he says, noting the increasingly emotion-laden attacks from conservatives is a matter of comparison, showing that, if anything, the roles have been reversed (assuming that there ever was a time when the roles lined up according to the conventional wisdom), with conservatives relying ever more on their guts.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 15 Sep 2014 11:00
by Michael Dorf

A number of commentators--including my colleague Jens Ohlin and Yale law professor Bruce Ackerman--have argued quite persuasively that President Obama lacks domestic legal authority to conduct military operations against the Islamic State (IS).

There are really only two possible sources of such authority, and neither works. First, the President could be exercising his inherent power to defend the country against a foreign attack, in which case, at the least, the War Powers Resolution clock has started ticking, but as Ackerman points out, the Obama Administration's views with respect to Libya in 2011 (which I criticized at the time) suggest that the Administration does not regard the WPR as applicable. Second, the President could claim to be acting pursuant to the post-9/11 Authorization for Use of Military Force (AUMF) but as Ohlin and Ackerman (and others) point out, even under the broad view of the AUMF that includes authorization for targeting forces "affiliated" with al Q'aeda, IS is not covered, because IS is not affiliated with al Q'aeda.

Meanwhile, there is a further question worth raising. Even if Congress grants Obama a new AUMF for bombing IS, that would only mean that doing so would comply with domestic constitutional law. We would still want to know whether the use of such force is consistent with international law.

I think the answer with respect to bombing IS in Iraq is pretty clearly yes: IS has attacked the Iraqi government and so, at the invitation of the Iraqi government, the US is providing assistance in Iraq's exercise of its right to national self-defense.

But the picture is different with respect to bombing IS in Syria. The government of Syria has said that it would welcome US airstrikes on IS in Syria but only if coordinated with the Syrian government. Because US policy is hostile to the Assad regime, US airstrikes against IS in Syria will not be coordinated with the Syrian government and thus, by the latter's account, are an act of aggression. Are the strikes in Syria nonetheless permitted under international law?

That question seems to me to implicate US policy elsewhere. Since 9/11 the US has conducted drone strikes in the territory of non-belligerent countries, especially Pakistan and Yemen, with unclear levels of permission from the respective host governments. If and when Pakistan, Yemen, or some other country gave the US permission to carry out such attacks in their territory, the US would have been acting similarly to how it is now acting in Iraq: at the invitation of a host country exercising the right of national self-defense against an insurgent force. But it does not appear that all of the US bombing in Pakistan and Yemen has been with the permission of the host countries. Such attacks have thus been illegal under international law--except perhaps (and it is a very big perhaps) if one regards Pakistan and Yemen as giving safe harbor to irregular non-state forces with which the US is at war.

Even supposing that (proportionate) drone strikes in Pakistan and Yemen were permitted by international law, bombing IS in Syria would still be illegal because, by hypothesis, Syria would not be inviting the US presence and Syria cannot realistically be said to be giving IS safe harbor. The most that can be said here is that the Assad regime has targeted IS less aggressively than it might have, because it saw IS as a threat to some of the other anti-Assad forces. That is not safe harbor and, in any event, the Syrian regime does now seem intent on combating IS. But if the US cannot plausibly claim to be bombing in Syria either with Syrian permission or in response to a de facto belligerency by Syria, then there is no international law justification for the bombing.

Indeed, once one goes down this road, it looks like the Obama Administration policy of training and arming "moderate" rebels in Syria is itself pretty clearly a violation of international law too. That's what the ICJ said in 1986 in Nicaragua's case against the US for arming the contras. Significantly, in that case the US did not argue that it had a right to arm the contras because the US has the right under international law to try to overthrow bad regimes, but that the US was coming to the aid of El Salvador, which was under attack by Nicaragua. The ICJ rejected this defense on the facts but significantly, in the current circumstances there isn't even a fig leaf of a simliar argument.

The US does not say that by arming anti-Assad rebels we are protecting Turkey or some other ally against Assad. I suppose that if I were a lawyer for the Obama Administration I would try to argue that attacking IS in Syria is part of the national self-defense of Iraq, on the theory that Syria is either unwilling or unable to stop the IS threat from spilling over into Iraq, but that is also problematic. As noted above, the Syrians are willing to confront IS, so the argument would have to be that Syria is unable to take on IS. I think a decent argument can be made that there ought to be an international law right of national self-defense to attack enemies in the territory of a non-belligerent state even if that state opposes such an extension of hostilities, so long as that state's own efforts against the non-state enemies are ineffective, but there really is nothing in international law that currently authorizes such a right of self-help in the territory of non-belligerents. And even if this argument were to succeed, it would only provide a legal justification for attacking IS in Syria. It would not provide a legal justification for supporting the "moderate" rebels fighting against Assad in Syria.

So what is the Obama Administration's justification under international law for its military policy in Syria? So far as I can tell, Obama--like some of his predecessors in both parties--has simply ignored the fact that supporting the overthrow of the government of a foreign sovereign that is not attacking or threatening to attack is a violation of international law.

Except when Putin does it.

Now let me be very very clear. I am not saying that Russia's support for anti-Kiev separatists in Ukraine is morally equivalent to Obama's support for anti-Assad rebels in Syria. What I am saying is that the US cannot plausibly criticize Putin (or other aggressors) on the ground that his actions violate international law. They do violate international law, but that does not distinguish them from US actions.

Well, so what? Isn't it sufficient to point out that Putin is using military force to undermine a government that resulted from a popular revolution against a corrupt kleptocrat, whereas Obama is providing military support (in the "moderate" rebel policy) to undermine a ruthless dictator who commits atrocities against his own people? As I said, there is a very salient moral distinction between Russian and US policies.

But something substantial is sacrificed when the US, through its violation of international law, makes sincere resort to international law unavailable as a standard of criticism. We undermine our own credibility more generally and weaken the value of international law. This policy of weakening international law--which, as I have said, is bipartisan--is probably counterproductive in the long run. International law tends to serve the interests of powerful states, much in the way that the domestic law of property serves the interests of those who have property, and so the US has much to lose from the weakening of international law.

Let me float one last possibility. For some years, liberal interventionists like Samantha Power have argued that international law should recognize a responsibility to protect vulnerable civilian populations as the basis for military action. I am sympathetic to the idea in principle but I think that it must be tied to some sort of international process for authorization; otherwise, it too easily becomes a pretext for interventions on other grounds. E.g., Putin, even while denying that he is intervening in Ukraine, cites a duty to protect Russian speakers from the "fascists" in the Ukrainian government. And we in fact have a system for such authorization: the UN Security Council. That system is itself subject to criticism, but then the focus of change efforts ought to be on the Security Council, not the responsibility to defend.

In any event, even if I am wrong and the liberal interventionists are right that there ought to be international legal authority for otherwise unauthorized humanitarian interventions, international law--the UN Charter and customary international law--does not currently recognize humanitarian intervention as a ground for the use of military force. So the Obama policy remains a violation of international law.

Perhaps it's still the right thing to do. Sometimes there is a moral duty to violate the law. But here, as elsewhere, one would have greater confidence in American foreign policy if one had the sense that the government counted the violation of international law as a barrier to its favored policy, even if not an insuperable one.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 12 Sep 2014 11:00
by Michael Dorf

In my column on Wednesday discussing last week's same-sex marriage rulings, I noted that in his opinion upholding the Louisiana ruling, Judge Feldman dismissed the many contrary rulings by other federal courts as based on "empathy" and "pathos." As I explained, the charge was backwards: once one considers the arguments in play, it appears that the opponents of SSM are the ones who have given in to unreason. Indeed, in recent years and across a range of issues, American conservatives have more generally come to believe their "guts," (to use Stephen Colbert's line), even when the actual facts as evinced by evidence are to the contrary. (E.g., climate change; evolution; U.S. history). That is not to say that there aren't plenty of liberals whose views of the world are faith-based rather than evidence-based; there are; I'm simply making a comparative point.

Nonetheless, the claim that one's opponents have based their views on emotion rather than reason is a very common move, both in the culture generally and in law in particular. And it also tends to be a more common move on the right than on the left. For example, conservatives oppose raising--or in the orthodox view even having--the minimum wage because, they say, markets set wages, so that the minimum wage can only have any effect when the market wage is lower, thus raising costs, suppressing demand, and ultimately increasing unemployment. The argument is right under a certain sort of economic theory but wrong or at best very overstated in practice. However, here I'm less concerned with the employment effect, if any, of minimum wages, than I am with the familiar structure of the argument: Conservatives say that some well-meaning policy based on an emotional reaction of liberals will actually be counter-productive.

Standard views of the law incorporate this use-your-head-not-your-heart logic. Think of the iconic statue of Lady Justice blindfolded so that she does not give in to sympathy. Or think of standard jury instructions warning jurors. They warn jurors not to decide the case based on prejudice, which is fair enough, but they also tell jurors not to decide based on sympathy. Sympathy, like empathy, is seen as antithetical to the cold hard logic of the law.

During my first few years teaching at Columbia Law School, I encountered a reminder of the law's conventional opposition of reason and emotion whenever I looked out my office window, which opened up into the bowels of a famous Jacques Lipchitz statue of Bellerophon taming Pegasus. That office was considered undesirable (which is why I had it as a junior faculty member), and it was later turned into open space during building renovations, but I found the view through the statue interesting (albeit less conducive to quiet thought than my current views of Cayuga Lake and a waterfall). In any event, the statue was meant to symbolize Law (Bellerophon) bringing passion (Pegasus) under its control. As my former colleague Peter Strauss used to note, however, if you look closely at the statue you see something more like the opposite: Pegasus begins where Bellerophon's head should be, suggesting that passion has overtaken reason; Professor Strauss would also note that Lipchitz agreed to create the statue in the mid-1960s but it was not completed for many years, and that the growth of passion relative to reason reflected a certain perspective on the tumult of the period.

I'd like to offer an alternative interpretation of the statue, that may or may not have any connection to Licpchitz's intentions. Putting aside my objection to the premise that humans symbolize reason and other animals symbolize passion, I would argue the merger of Bellerophon as reason and Pegasus as passion symbolizes the inextricability of reason and emotion. The statue as thus reconceived rebukes the familiar notion that law should, or even can, be about thinking divorced from feeling.

The most famous articulation of a view of this sort in constitutional law is Justice Blackmun's dissent in the DeShaney case. There, the majority held that a county social services agency was not accountable for failing to intervene to protect a minor child from severe abuse at the hands of his father. Blackmun wrote that "compassion need not be exiled from the province of judging." But even that account of the view I am expounding understates the role of emotion, because Justice Blackmun conceptualized compassion (or emotion) as separate from reason. His idea was that a wise judge tempers justice with mercy, reason with feeling.

Yet modern brain science shows that emotion and reason are not even separate processes. People with damage to the emotional centers of their brains have great difficulty making decisions and reasoning more broadly. As Rebecca Tushnet argues in a recent Harvard Law Review article, the recognition of the role of emotion in reasoning should have concrete doctrinal applications in the law. Even more broadly, it has implications for how we understand the function of law itself.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Thursday, 11 Sep 2014 15:00
-- Posted by Neil H. Buchanan

My latest Verdict column, published today, uses the recent controversy over reclining seatbacks on airplanes to make a larger point about the misuses of economic theory.  One of the foundations of the "law & economics" movement is known as the Coase Theorem.  Two weeks ago, a business columnist for The New York Times, Josh Barro, wrote a short, snarky piece in which he tried to use the common, bastardized version of that theorem to rationalize his proud willingness to be a jerk.  Here, I want to explore in further detail how economics is so often wrongly used to justify anti-social behavior.

[Before continuing, however, I do think that it is important to take a moment to note that today is September 11.  Despite all of the horrible things happening in the world, it says something very good that today is a day on which most people will go about their lives as if it were any other day.  That does not dishonor the memory of what happened thirteen years ago, but rather shows that life goes on.  Indeed, the very fact that I can comfortably write today not just about a relatively frivolous topic, but about one that is airplane-related, is a good thing.  Readers who are interested might wish to read some personal reflections about 9/11 from Professor Dorf and me, which we wrote to commemorate the tenth anniversary in 2011, here and here.]

In his piece for the NYT, and in an earlier piece that he had written for National Review, Barro does not merely try to argue that there is a theoretical case to be made that would justify reclining one's seatback on an airplane.  He positively screams that he revels in being inconsiderate of other people's concerns.  He begins: "I fly a lot. When I fly, I recline. I don’t feel guilty about it. And I’m going to keep doing it, unless you pay me to stop."  And there is the key.  He wants to describe this problem as merely a misunderstood economic market, where behavior should be judged by the cold, hard logic of economic theory, in particular this magic mantra called The Coase Theorem.

As I explain in my column, the Coase Theorem is one of the great mistakes of modern economics.  It is not that Ronald Coase himself was wrong.  Indeed, Coase spent years trying to tell people that they misunderstood what he wrote.  Unfortunately, for many people (including a lot of first-year law students, many of whose Property Law professors think that the Coase Theorem is a Rosetta stone), the Coase Theorem says something like this: "If you ignore transaction costs, then it does not matter to whom a property right is given, because either way, the result will be efficient."

In this case, the "property right" that supposedly needs to be allocated is the ability to control the space that a reclined seat can occupy.  It can either be the "property" of the person who might recline his seat into that space, or it can belong to the person whose knees, laptop computer, head (if leaning forward), and so on might be occupying that space.  Barro simply asserts, without explanation, that the property right belongs to the passenger who might recline into that space.  As I describe in the column, that is at least contestable, for reasons that have everything to do with people's general misunderstanding of what property rights really mean, in the context of Coase's actual theorem.

One of the best papers critiquing the common misunderstanding of the Coase Theorem was written by an economist at Queens University in Canada, Dan Usher: "The Coase Theorem is Tautological, Incoherent, or Wrong."  As Usher explains, the only way that the pseudo-Coase approach works is to say that the property right does not need to be assigned at all.  If there truly were no transaction costs, then it would be possible for the parties to make a decision that maximizes their combined happiness.  Or, put differently, the absence of transaction costs is logically equivalent to having one decision-maker, not two.

To his minimal credit, Barro does not take the extreme no-transaction cost position.  Indeed, if he did, then he would have to admit that his aggressive defense of the right to recline is no more nor less defensible than the opposite argument.  In response to an argument by another economist, who at least implicitly understands that Coase's real concern was entirely about the interaction of real-world transaction costs, Barro dismisses the idea that there is anything difficult about buying and selling the right to recline a seat.  That is the only way that he can write, "If [a] passenger so badly wanted the passenger in front of him not to recline, he should have paid her to give up that right," rather than to acknowledge that we need to understand the relative sizes of the transaction costs before deciding whether it is the passenger sitting behind who must bear the consequences of another person's selfish actions.

But in the end, Barro's argument is not really about reclining seats.  It is, instead, yet another case in which someone with economics training takes a little bit of knowledge and tries to turn it into a justification for being a jerk.  He is not merely making the objective statement that people are sometimes willing to ignore other people's concerns, and that policy must be clear-eyed in assessing how such self-interested actions play out in real life.  His is a normative assertion that it is right and good that people are selfish.

Barro's tone gives away the game.  In the National Review piece, he announces: "The property rights in reclining a seat belong to the person who is sitting in it. I will recline if I please."  Because I can, I shall!  And if people complain?  From his NYT piece: "[P]eople like to complain about all sorts of things; if they really cared that much, someone would have opened his wallet and paid me by now.”  He even disparages the people who have used the "Knee Defender," a device the locks seatbacks in place, for "steal[ing] from their fellow passengers.”  He describes another writer's effort to use pre-printed cards to ask people to consider other people's feelings as "inane," calling the cards "stupid."  (His attempt, at the end of his NYT piece, to turn the argument into a short-versus-tall fairness question is a transparent sham.)

The argument that "you could just pay me not to be a jerk" is, in the end, merely an attempt to hijack Ronald Coase, pretending that his theorem is a magical phrase that somehow converts selfish, anti-social behavior into market activity that can be traded for cash.  As one of my research assistants asked, why not invoke Coase to say: "You don't like me catcalling women on the street? I have a First Amendment property right to how I use my voice, so you're going to have to pay me to stop -- that's the only way to sort out whether someone values not being demeaned more than I value demeaning people."  Of course, there are other ways to get people to stop being jerks.  Saying, "Pay me or I'll offend again" sounds like it is somehow objective, because it invokes economic theory (incorrectly).  But it is nothing more than an emotional defense of a childishly simplistic worldview.

In the late 1990's or early 2000's, some economists surveyed graduate students in the top Ph.D. programs in the U.S., trying to determine whether economists are already jerks when they sign up for a Ph.D. program, or instead that they become jerks by studying economics.  The premise of the study was backed up by other surveys that showed that people with economics training were much more likely to exhibit anti-social behaviors and to rationalize narrow-minded selfishness.  The results suggested that there was a huge self-selection element, with anti-social types flocking into graduate economics study.  Of course, it is possible that the "nurturing" of jerkiness had happened at the undergraduate level, too.

In any event, it is remarkable how often economists -- who claim merely to be explaining the world -- fiercely defend selfishness as a good thing, and ridicule people who act selflessly.  It is not merely, it seems, that the non-selfish people are "leaving money on the table."  They are seen as chumps, or worse.  "You want to help children by working at a charity?  Stop being such an economic waste!"  This defensiveness and sense of grievance coming from so many economists is, perhaps, unsurprising.  But the real Coasean analysis does not change the fact that they are losing a fight with their mental demons.

Finally, let me note a further point regarding seatbacks.  In addition to defining property rights and letting the passengers fight it out -- a fight that, as I describe in my Verdict column, will not be any more "economically efficient" than the current squabbling -- another possibility exists (even outside of government regulation).  The airlines could simply install non-reclining seats.  And honestly, I do not know why that has not happened yet.  The in-flight nastiness is certainly costly to the airlines, not just in the occasional diverted flight, but in time wasted by flight attendants, damage to seats that are kicked in retaliation against rude passengers, and so on.  The real Coasean question is not always limited to: "Which of these two parties should be able to sell their property right to the other?"  Sometimes, after taking account of all transaction costs, the answer is: "None of the above."
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 10 Sep 2014 04:01
by Michael Dorf

In my latest Verdict column, I discuss last week's same-sex marriage (SSM) rulings: Judge Feldman's district court opinion upholding Louisiana's SSM ban; and Judge Posner's 7th Circuit opinion invalidating the Indiana and Wisconsin SSM bans. My column praises Posner's opinion overall but especially for his injection of a new argument into the growing genre of opinions striking down state SSM bans. As he foreshadowed during the oral argument, Posner performs a kind of judicial jujitsu. He turns the state claim that it is concerned about the consequences of accidental heterosexual procreation against the state: If the state were really concerned about those consequences, he says, it would permit same-sex couples to marry, because they are raising thousands of adopted children who were born as a result of such accidental heterosexual procreation.

That's a very nice move, but as I note in the column, it is potentially vulnerable to a rejoinder by the state: Rational basis scrutiny permits the state to tackle a problem one step at a time; here the state is tackling the problem for the heterosexual couples who keep their offspring; it need not also tackle other aspects of the problem. I say in the column that this is not a persuasive rejoinder but I do not elaborate at length why. Consider this blog post an extended footnote to the column.

The state rejoinder can only get off the ground if laws that facially disadvantage people based on sexual orientation are subject to mere rational basis scrutiny, rather than to heightened scrutiny. For the last 18+ years (since Romer v. Evans) the Supreme Court has found it unnecessary to decide what level of scrutiny applies to such laws, invalidating laws disadvantaging gays and lesbians even under rational basis scrutiny. There is a robust academic literature that argues about whether those decisions apply conventional rational basis scrutiny or a kind of covert heightened scrutiny. When I teach the relevant line of cases, I call this, tongue in cheek, "extra crispy rational basis scrutiny." (Occasionally students, to my horror, write that phrase on an exam as though it were an actual legal term of art.)

Meanwhile, precedents in some states and circuits say that sexual orientation is not a suspect or semi-suspect classification, so that judges in these states and circuits take the position that conventional rational basis scrutiny is the correct standard. I think those precedents are wrong for two reasons. First, sexual orientation is, or should be understood as, a form of sex discrimination, both literally and substantively. It is literally a form of sex discrimination because, in the case of SSM, whether a marriage license will issue depends on the sex of the applicants. It is substantively a form of sex discrimination because prejudice against sexual minorities relies on impermissible stereotypes about sex roles--the very evil that is at the core of what makes sex discrimination constitutionally objectionable.

Second, even if one thinks that sexual orientation should not be considered sex discrimination, standing alone it bears the hallmarks of a suspect (or semi-suspect) classification. Judge Posner summed up the reasons matter-of-factly and pithily when he wrote that "homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world ...." Only an unprincipled commitment to the notion that the Supreme Court is done recognizing suspect classifications--a kind of arbitrary numerus clausus--can support the view that sexual orientation is not a suspect classification.

But let us suppose for the sake of argument that the SSM bans were subject only to rational basis scrutiny. Even so, the one-step-at-a-time defense would fail as a response to Judge Posner's argument about adoption. To see why, one needs to examine exactly what the state is saying in its accidental procreation argument. The state is not saying that preventing same-sex couples from marrying in some way prevents accidental procreation by unmarried heterosexuals. And for apparently good reason, because that would be both illogical and, as Judge Posner shows, counter-factual. There is absolutely no evidence that permitting same-sex couples to marry in any way discourages opposite-sex couples from marrying.

Now maybe . . . just maybe . . . the state could argue that permitting same-sex couples to marry does discourage opposite-sex couples from marrying. Sure, there's no evidence for this supposed phenomenon, but traditional rational basis scrutiny does not require evidence. As expressed in the most forgiving formulation, if a court can conceive of a state of facts in which the state's law would further the state's goals, then the law satisfies rational basis scrutiny. Can we conceive of such a world? Sure, but the problem is that the only rational way of conceiving such a world is itself constitutionally problematic.

What would be the mechanism by which permitting same-sex couples to marry discourages opposite-sex couples from marrying? In a word, homophobia. Some number of opposite-sex couples who would otherwise marry would see that marriage ain't what it used to be now that those disgusting people can git married, so they would decide instead just to shack up. Then, when their fornicatin' led to babies, they would be less likely to stay together than if they had married. Presto! Permitting same-sex marriage would have undermined traditional marriage and thus contributed to the problem of accidental procreation by unmarried heterosexuals.

Let me emphasize that, to their credit, Indiana and Wisconsin did not make this argument. And to the credit of heterosexuals in Indiana and Wisconsin (and so far as I am aware, the rest of the country), homophobia is not so extreme that it actually leads to the foregoing hypothetical scenario. But again, traditional rational basis scrutiny does not require actual facts, only those that can be "conceived" (pun foreseen but not intended). Suppose that some other state were to advance the hypothetical scenario as an ostensible rational basis for a SSM ban. Surely a judge could conceive the hypothetical facts that I just conceived, right?

Yes, but whatever else the extra-crispy cases mean, at a minimum, they stand for the proposition that animus cannot be the basis for legislation, and in the imagined scenario the heterosexuals who are discouraged from marrying are discouraged because of animus: they are so disgusted by the prospect of SSM that they forgo marriage themselves. To be sure, the state would say that it doesn't share the animus; it is merely taking account of it for the benefit of the children. But that option is foreclosed by Palmore v. Sidoti, which held that, even in determining the best interest of actual children in a custody case, a judge could not in effect incorporate private bias. As the Court said there: "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore involved race discrimination, but nothing about its logic would make it inapplicable to other constitutionally forbidden motives, such as the general prohibition on animus.

Accordingly, Indiana and Wisconsin were right to place no reliance on the imagined scenario in which straight people don't marry because they are demoralized by gay people marrying. It doesn't happen; it is an offensive claim; and even if the state were to advance the argument, it would fail under the logic of the animus cases and Palmore.

So what is the argument that the states advance regarding accidental reproduction? Their argument is not that that they need to ban SSM to mitigate the harm of accidental reproduction by unmarried heterosexuals. Their claim is simply that they do not need to extend marriage to same-sex couples because same-sex couples do not accidentally procreate.

At this point I want to make one very, very, very simple observation: The laws being challenged in the SSM litigation do not simply fail to extend marriage to same-sex couples. They ban SSM. So even if mere rational basis scrutiny should apply to such laws (and it shouldn't), the argument that there is a rational basis for failing to extend the institution of marriage does not explain why it is rational to ban SSM, rather than merely to fail to extend it.

Here we can use a variant on a hypothetical example offered by Judge Posner to illustrate the point. A state issues driver's licenses, initially simply for the purpose of ensuring that people operating motor vehicles can do so safely. If that is all that a driver's license does, then the state has a rational basis for failing to issue "non-driver's licenses" to people who don't drive. But over time, the driver's license begins to play multiple other functions. Private firms like banks, airlines, and bars demand to see a driver's license as identification; the government itself does the same in various contexts; perhaps even hospitals demand to see a driver's license as a condition of visiting a sick relative. Eventually, the driver's license comes to be a kind of universal ID card. Now imagine that non-drivers (including people who are physically unable to drive for various reasons such as blindness) organize to seek non-driver's licenses. If at that point the state passes a law or a state constitutional amendment forbidding the issuance of non-driver's licenses, the state can no longer rely on the original reason for issuing licenses only to drivers. The original distinction--between people who might endanger the public by operating motor vehicles and those who don't--has no bearing on all of the collateral benefits conferred by having a govt ID which are sought by the non-drivers. So even though the state may have originally had a rational basis for failing to issue non-driver's licenses, it lacks such a rational basis for banning them once the collateral benefits are clear.

Likewise with respect to SSM. (Indeed, even more so, because in the foregoing scenario, the non-drivers have another, albeit more expensive, option: they can obtain federal passports. But there's no way to get the state benefits of marriage by getting "federally married.") Perhaps it's true that at some point in the past state recognition of marriage for opposite-sex couples was rooted in concerns about accidental procreation. Even so, everybody knows that the SSM bans were not enacted because of a judgment that same-sex couples don't need protection against accidental procreation. My research in a news database reveals not a single reference to the phrase "accidental procreation" in connection with same-sex marriage before 2006, with nearly all of the references coming in the last couple of years.

The best that can be said for the accidental procreation argument is that it is not as ugly as some of the anti-gay arguments that have been raised in the past to defend anti-gay laws. (See, e.g., here.) Nonetheless, the sheer ridiculousness of the accidental procreation argument reveals it to be an obvious pretext, so that any judge or Justice who accepts it will likely be ridiculed, if not reviled as a bigot, in the not-too-distant future.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 09 Sep 2014 15:00
-- Posted by Neil H. Buchanan

Are executives overpaid?  If you are inquisitive and open to thinking about evidence and logic, that is a difficult and nuanced question.  If, instead, you are a mainstream economist, then this -- like all questions -- is easy.  Although an awful lot of work goes into dressing up the analysis, the answer boils down to this: Executives cannot be overpaid, because what they are being paid must be the amount that they should be paid.  Think I'm joking?  If only.

The latest example of this nonsense showed up in a fawning news article by a New York Times sports reporter last week.  Two economists (one of whom teaches at a prominent law school) wrote a typical economics article, in which they claimed to show that college football coaches' salaries are justified by the coaches' jobs being CEO-like.  That is, they noted that big-time college football coaches run large organizations, in which they manage hundreds of people, and they are asked to deal with the media, politicians, the public, and so on.  Moreover, they are supposedly held to account by the rigorous and unyielding performance standards of winning and losing.

(Note: Although I have written at length recently about college sports, this post is not concerned with any of those issues.  I am using the Times article and the paper that it discusses to make a point about current practices and norms in academic economics.  The football aspect is incidental.)

Once one has made the CEO comparison, however, it might occur to most people that the right way to think about this is through the well-established body of research that shows that executive pay is anything but market-driven.  This research goes back decades, and it is based on both objective evidence and the testimony of many people who helped rig the executive pay game in the first place.  Salary committees (at least those that are trying not to look too obviously like the CEO's puppets) set up nominally objective measures that, by design, push compensation inexorably upward.

The standard approach, widely discussed by everyone who follows such things, is to set up a game of leap-frog, comparing Company A's CEO's pay to that of Companies B, C, and D.  If D's CEO gets a raise (based on, say, an increase in the share price for one quarter), then A's CEO can say, "But wait, I was the highest-paid CEO in this group, and now I'm not, even though I've done nothing wrong."  B and C say something similar, and because it is all an inside job, "no" is not an acceptable (or even thinkable) answer.  There is an upper limit, because there is a finite amount of money, but there is no logical connection between the quasi-equilibrium and "market fundamentals."

Moreover, there has been a large body of research indicating that the measures of "performance" that are used to measure CEOs' worthiness are deeply flawed.  In organizations that sometimes employ tens or hundreds of thousands of people, all results (or at least all positive results, but sometimes negative results as well) are attributed to the top executive.  "Creation of shareholder value" is said to be the doing of the dynamic chief executive.  In the analogy to college football, wins and losses happen entirely because of the head coach.

These objections to the idea that CEOs are paid "what they are worth" are so well-known, in fact, that even NYT op-ed columnist Joe Nocera knows about them.  In his column last Friday, he ran through most of the common objections to the conservative economic mantra on CEO pay.  Of course, being a slave to the conventional wisdom, he indulged in a bit of academy bashing: "It’s amazing the things academics can find worthy of study, isn’t it?"  Yes, the problem is woolly-headed professors, not the takeover of economics and related fields by a cult-like group of apologists for power.  Right?  But I digress.

When I say "even ... Joe Nocera knows" these things, I am referring to the obvious fact that Nocera frequently does not appear to know what he is talking about, even in his original field of journalistic expertise: business.  He is an enthusiast, letting his emotions get ahead of facts and logic.  That is not to say that he is always wrong.  (He is no David Brooks or Ross Douthat.)  For example, his newest column provides a reasonable discussion of "corporate inversions," which are a major tax policy issue.  My point is that, if even someone as insistently unimaginative as Nocera knows about the arguments regarding executive pay, then those arguments must be reliably mainstream.  (Nocera also spins out of control at the end of the column, failing to understand the cash flows in university budgets.  But that is par for the course.)

That, however, does not stop our intrepid economics professors.  Rather than acknowledge that there are competing theories within labor economics, they pepper their paper with references to a monolithic thing called "economic theory," which provides unambiguous answers that can be tested.  From the abstract: "[Coaches] contracts’ features are consistent with what economic theory would predict."  And from the second paragraph of the paper: "Yet economic theory tells us that lucrative compensation is not necessarily a problem if the structure of the employment contract is aligned with value creation."  And in the conclusion: "In sum, we find that a close comparison of CEO employment contracts and college football coach contracts shows that both sets of agreements conform to the predictions of economic theory."

What is this unvarying economic theory to which the authors refer?  They never quite say, because they apparently believe it to be obvious.  The idea is that rational actors would not pay people more than they bring into the organization, because that would be irrational.  (Circularity is a big part of modern economics.)  Indeed, the final sentence of the article all but gives away the game: "Thus, if one believes that CEO compensation is set by the market at an appropriate level, and that employment contracts reflect this equilibrium, then one should reach the same conclusion about football coaches."  (This sentence was reprinted in the NYT article that I noted at the beginning of this post.)

And should we believe that CEO compensation is appropriately set by the market?  The authors clearly view this, too, as a trivial question.  Indeed, they could more honestly have written: "Thus, because one should believe that CEO compensation is set by the market at an appropriate level ... ."  For true believers, there is no "if" about it.

What is especially interesting here is that, as bad as the logical starting point might be, the analogy between CEO compensation and college coaches' pay is worse.  At least in for-profit businesses, the notion of "maximizing shareholder value" can be defined with some logical coherence.  Again, that does not mean that CEOs are actually paid according to a sensible definition of such value, but one can at least start from there to analyze the important questions.  But other than inventing the term "program value creation," the authors have nothing useful to say about how to measure "value" in the college sports context.  Maybe they are assuming that the money coming in from TV contracts is somehow tied to coaches' win-loss records (a truly bizarre idea); but how is the increased "value" of a big-time sports program meaningfully compared to what a coach does?

Indeed, the paper cannot (and does not try to) deal with the fact that most of the programs in question are drags on the parent universities' finances.  It would be more sensible financially to shut down many of these programs and turn them into club sports or Division III programs without athletic scholarships or TV money.  Yet, we can be sure that alumni and, in the case of public universities, legislators would quickly tell us that the true "value" of the program is much more than the TV, ticket, and memorabilia revenue.  It is all about creating warm glow, building loyalty, encouraging applications, and so on.

What would "economic theory" tell us about that?  Well, if we assume that CEO pay is set by the market, and if we assume that the college football market rationally and efficiently aligns coaches' pay with whatever people "value," then the answer is that the coaches are being paid what they should be paid.  Assuming one's result is easy.  What takes some skill, as this paper demonstrates, is making it appear as if one is doing anything more than merely justifying the status quo.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 08 Sep 2014 11:30
by Michael Dorf

As a longtime fan of academic satire, I enjoyed Julie Schumacher's new book Dear Committee Members (favorably reviewed, e.g., here and here). The book takes the form of discursive letters of recommendation from a middle-aged professor of English and creative writing at a fictional midwestern university. Schumacher herself teaches English and creative writing at the University of Minnesota but "Payne University" is not a thinly disguised version of Minnesota; it is instead a generic stand-in for academe. The protagonist, Jason T. Fitger, is also something of a standard type: a once-promising author whose debut novel was more successful than any of his subsequent works; a pedant whose awareness of his own pedantry makes him something of a lovable curmudgeon; a man whose sense of irony alone prevents him from spiraling downward into self-pity. Fitger is more sympathetic than the character played (brilliantly) by Jeff Daniels in The Squid and the Whale but somewhat less sympathetic than, say, Philip Swallow, who appears in various David Lodge novels.

Dear Committee Members compares reasonably well with other academic satires. Although the book lacks the depth of the best works of the genre--Lucky Jim by Kingsley Amis; Moo by Jane Smiley; the Swallow/Zapp books of Lodge--Dear Committee Members is nonetheless a fun and well-crafted work. And like those other books, Dear Committee Members combines a keen sense of what is ridiculous about academia--the petty jealousies; the pompous posturing over nothing; etc.--with genuine fondness for the people who work and live here. But unlike academic satire of the not-too-distant past, Dear Committee Members has an elegiac quality about it, a sense that this lovely island of insane sanity is a fast-fading anachronism.

Dear Committee Members is chiefly about the gutting of the humanities, symbolized throughout the book by Payne University's lavish spending to renovate office space for the Economics Department, even as the English Department endures a hiring freeze, toxic debris, broken windows, and dysfunctional toilets. The relative penury of some departments is not a new development in academic satire (or academia itself). For example, the villain in Smiley's Moo (published in 1995) is an economics professor who prides himself on seeking, receiving, and ultimately rejecting competing offers from other universities so that he can maintain his status as the highest paid faculty member on campus. But in those pre-Great Recession works, the impoverishment of the "impractical" fields was only relative. In Dear Committee Members, as in reality, it is clear that whole areas of academic study will either be eliminated from the curriculum, or given over to instruction by very poorly paid and overworked adjunct faculty who are not rewarded for, and in any event have no time to engage in, scholarship. Indeed, in much of academia, that is an ongoing trend, rather than a forecast.

I share the view of the fictional Fitger (and presumably of Schumacher) that the demise of the humanities would be a great loss--not of the same scale as the Taliban's destruction of the Bamiyan Buddhas but reminiscent of it: a deliberate act of a kind of cultural suicide. But in one respect I am, if anything, more pessimistic than Fitger and Schumacher. For while they see the humanities losing out to the more practical/lucrative branches of the university, I see the very idea of universities as imperiled.

Professional schools are a case in point. Fitger's ex-wife is an administrator in Payne's law school, described in Fitger's letters as a land of plenty. And perhaps that is how law schools look from the vantage of a besieged English department. But of course it is no secret that law schools--especially those ranking in the middle of the pack, as Payne's ostensibly does--have also been under enormous pressure to scale back. Some will close. Others will go the way of the adjunct-heavy humanities. Presumably that is the plan for Suffolk Law School, where the university has offered to buy out all faculty with tenure and long-term contracts.

A similar fate may well await even those faculty in the so-called "STEM" fields that have gained in popularity as students, fearing the burden of large debt, have increasingly (and understandably) come to view higher education through a more narrowly practical lens. For even if there is greater student demand in the STEM fields than in the humanities, there will continue to be competitive pressure to reduce costs--and adjuncts in STEM fields are much cheaper than tenured and tenure-track faculty, just as they are in the humanities, the social sciences, and the professional schools. Whether you think of the fate of literature or other esoterica as a canary in a coal mine, a frog in increasingly hot water, or in terms of some other speciesist metaphor, the writing (to mix my metaphors even further) is on the wall: the very idea of academia as we have come to know it over the last few centuries is under enormous strain.

As I've said before, I think great research universities (of the sort I've had the privilege to attend and teach at) will likely survive for at least another few decades, which, from a selfish perspective, is all that I need. But the traditional picture of the university as a community of scholars will be increasingly inaccurate as an account of the actual people who do most of the teaching in the institutions we continue to call colleges and universities.

And that brings me back to the topic of academic freedom about which I have opined in recent weeks in response to the University of Illinois firing/unhiring of Professor Salaita (in chronological order, here, here, here, and here). The controversy in the Salaita case is over the scope and meaning of academic freedom, but even the Chancellor and Trustees at the University of Illinois continue to say they believe in academic freedom for tenured and tenure-track faculty. And there's no reason to doubt that they actually believe it. However, they also believe--very much erroneously and dangerously--that academic freedom does not extend to "disrespectful" speech or that faculty accused of such disrespectful speech are entitled to due process in determining whether they breached the standard.

I am aware that the university takes the position that Salaita was not yet hired and thus not fully entitled to academic freedom; as more facts have emerged, that claim appears even more fictional than when I first addressed this topic; but even assuming the university view were correct, it is irrelevant, as the pronouncements from the Chancellor and the board purport to circumscribe the limits of academic freedom even for those who are fully entitled to it.

Let us put all of that aside and assume that the Salaita case eventually has a generally positive outcome, leading faculty and administrators across the nation to reaffirm their commitment to robust principles of academic freedom. Still, only the battle will be won. If, over the long run, the number of faculty who are actually afforded academic freedom diminishes substantially--as seems likely given the real-world trends that form the backdrop for Dear Committee Members--the war will be lost.

I suspect that more than a few readers will now think to themselves, Well so what? I don't have academic freedom in my job as [lawyer, journalist, lumberjack, etc.]; what's so special about professors that they need academic freedom, much less tenure, to protect it?

As Professor Buchanan recently discussed in the related context of primary and secondary school teacher tenure, there are special reasons why people who teach need protection against arbitrary firing or discipline. There are additional special reasons to afford such protections to people who produce scholarship. But even apart from these special reasons applicable to teachers and scholars, some degree of "academic" freedom would, in an ideal world, apply to everyone, including non-academics. Suppose that a veterinarian, locksmith, or florist uses his spare time to tweet disrespectful comments about the Middle East or any other subject. Is that a sound reason for the veterinary practice, hardware store, or floral shop that employs him to fire him? True, there would be costs to adding speech to the list of impermissible grounds for employment decisions; litigation would ensue; etc. In principle, however, I think the idea is sound.

Put differently, the argument that academics don't deserve any special protection is partly right, but understood properly, it cuts in favor of extending such protection to others, not restricting it for academics. Unfortunately, however, the large trend is one of leveling down, not up.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 05 Sep 2014 12:54
-- Posted by Neil H. Buchanan

The big political news of this week was the Democrat's strategic withdrawal from the race for the U.S. Senate seat in Kansas.  The very unpopular Republican incumbent, Pat Roberts, had succeeded in defeating a Tea Party challenger in his party's primary, only to find himself with embarrassingly low poll numbers in a three-way general election race.  The embarrassment would have been bearable, however, because the Democrat and the independent candidate were splitting the anti-Roberts vote, so that polls showed Roberts set to win reasonably comfortably (perhaps along the lines of 38% to 32% to 30%).

Democrats saw an opening, and they convinced their candidate to drop out of the race.  This immediately made the independent, an unknown name Greg Orman, a strong favorite to win.  And given that everything that matters in this election season boils down to control of the Senate, the change from a sure Republican win in Kansas to a loss rather significantly changed the landscape.  The problem is that Democrats do not know whether Orman would caucus with them (as the two current independents in the Senate do), so a win for Orman could still be a win for Republicans.  Nonetheless, a non-zero chance of Orman siding with the Democrats changes everyone's calculations about this election season.

Predictably, Orman makes his case by attacking Republicans and Democrats alike.   His campaign website's headline reads: "I’m running as an Independent for U.S. Senate because Washington is broken and we need a new approach."  He has said that he will caucus with whichever party is in the majority, which is unhelpful if he is the deciding vote.  That is probably just cagey politicking.  He has, however, also said that he would caucus with the party that is willing to ignore its extreme base.

Again, Orman is an independent, and he is thus all but forced to say such things.  Even so, it reminds us once again of the problem of false equivalence in U.S. political discussions.  What is the "extreme base" of the Republicans?  That is hardly a mystery.  On both policy and tactics, the most extreme of the extreme is Ted Cruz, but the whole point of the Tea Party era is that it is only a matter of degree separating him from dozens of other Senators and most Republican House members.  (Rep. Ted Yoho, for example, has argued that a U.S. debt default would please financial markets.)

In terms of Republicans in Congress all-in on extremist agendas, the queue behind Cruz includes Rand Paul, Mike Lee, Steve King, Jim Inhofe, Paul Ryan, Roy Blunt, Marco Rubio, and (to be honest with ourselves) Mitch McConnell.  Who are the supposedly-equally-crazed Democrats?  Sherrod Brown and Elizabeth Warren, I suppose.  As I pointed out almost three years ago, however, the hatred of Warren by Wall Streeters is truly odd, "because she believes in capitalism more than they do."  The point being that the designated Cruz-equivalents are seen as extreme only by comparison to how crazy things have become on the Republican side.  (Alan Grayson is the one Democrat who has been willing to be as shrill as Republicans, but his policy agenda is hardly extreme.)

Along with plenty of other commentators, I have written about this false equivalence with some frequency.  (Two good examples are my Dorf on Law posts from December 12, 2013 and August 26, 2011.)  Once, I even wrote a post describing "False Equivalence About False Equivalence."  In fact, the ubiquity of false equivalence in U.S. political commentary has led me to keep an eye out for examples of true equivalence, where both parties really are pretty much indistinguishable in terms of their actions or tactics.

I can think of two such examples, both having to do with the people who populate the staffs of political campaigns, and the staffs of the people who eventually take office.  Because campaign staffers are generally rewarded with office jobs by the winning candidates, of course, we are essentially talking about the same people: politically ambitious folk who are willing to throw themselves into the mindset of the loyal functionary.

Not long ago, I was looking to rent a house near Washington, DC, and as I talked with the owner of the house, I learned that she had spent her entire adult life (probably 25 years post-college) working for Democrats in the Maryland legislature.  Interestingly, as she warmed up to the discussion, she began to talk about national policy issues.  Well, that is not true.  She began to use words that other people use to discuss policy, without having any clear idea of what she was talking about.  For example, she insisted that Democrats were better than Republicans because Democrats really delivered balanced budgets, whereas Republicans only talked about it.

When I tried to engage her on the question of why anyone should be committed to year-by-year balanced budgets, she looked at me as if I was asking her why puppies are cute.  The blank stare was, in its way, chilling.  This was a person who was deeply committed to electing people with whom I generally agree, but she had no more knowledge about the actual policy questions of the day than a third-grader.  I have had similar conversations with Republican staffers, with similar results.  I realize that there are surely people in Republican and Democratic offices who are true believers on policy matters, and those people are non-equivalent precisely because the policies to which they are committed are non-equivalent (as I discussed above).  However, it is common to see partisans on both sides who simply mouth the words that they have picked up along the way, without undestanding or caring what they mean.  It is careerism of a sort, but it is worse than that, because these people put their hearts and souls into electing people, and then helping them govern, without having a clue about how policies affect people's lives.

The other, related, example, comes from the public relations arms of campaigns.  For some reason, I have started to receive emails from a functionary at the National Republican Campaign Committee, who has been tasked with sending out attack emails in a race in Northern Virginia.  Here is a typical "argument" from such emails: "Why is John Foust running for Congress?  Well because Nancy Pelosi told him to run."  Zing!  Wow, we can bet that Foust is smarting from that one.  Because that was surely too subtle, another email announced: "John Foust is the definition of a tax and spend liberal. If sent to Congress, Foust would become even closer BFFs with Nancy Pelosi and support her radical liberal agenda."  BFFs with Nancy Pelosi.  Shocking.  The fact is, however, that the same kind of nonsense comes out on the Democratic side.  That is how campaigning at this level works.

I am obviously not saying that there is an equivalence between this type of silly partisanship and the partisan differences on policy for which there is no equivalence.  I am simply acknowledging that, yes, there are times when Democrats and Republicans do the same kind of things, and they both are embarrassing.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 04 Sep 2014 11:46
by Michael Dorf

A NYTimes story today on yesterday's ruling by a federal district judge upholding the Louisiana ban on same-sex marriage may give the inaccurate impression that I think the ruling is anything other than terrible. The story's author, Campbell Robertson, correctly quotes two disclaimers I gave in the course of a 15-minute discussion with him but not the main thrust of my comments. First, I am quoted as saying that the decision is a "well-crafted outlier." By that I merely meant more or less what Garrett Epps meant in his excellent first-take on the decision in The Atlantic: namely, that the opinion hangs together well, not that it is correct either legally or morally. Judge Feldman's opinion is well-crafted in the same way that Plessy v. Ferguson or Buck v. Bell ("three generations of imbeciles is enough") can be said to be well-crafted.

Second, I am quoted as noting "some confusion" in the Windsor opinion about the relative roles of federalism and equal protection in that decision. That's also accurate but misleading, as I think that Windsor was chiefly an equal protection decision.

The outlier quote appears right after a discussion in the Times story of how Judge Feldman thought that a ruling invalidating the SSM ban would be undemocratic. Yet I explained to Mr. Robertson that the argument rooted in democracy is a generic argument that one can make against the recognition of any and all rights, because rights trump decisions of democratic bodies. I explained why I thought that Judge Feldman's reliance on last Term's Michigan affirmative action case--in which Justice Kennedy included language that could be taken out of context to uphold SSM bans--was misplaced. Readers interested in the full version of my argument on this point might want to take a look at my blog post on the argument when I first noticed it.

As to the roles of federalism and equal protection, I stand by my disclaimer that there is some confusion based on Windsor--as the dueling dissents of CJ Roberts and Justice Scalia in that very case illustrate. So yes, as I am quoted in the article, Justice Kennedy did give to Judge Feldman some "tools" with which to make the argument he made. But it's still a mistaken reading of Windsor, ultimately.

Although Windsor is not entirely clear on how federalism and equality fit together, I think the best reading goes like this: States have primary regulatory authority over marriage and the federal government, in recognition of that fact, virtually always simply piggy-backs on state definitions of marriage; DOMA massively rejects that presumptive approach and in doing so, raises suspicions that Congress was acting oddly; and indeed, when we look closely, we see that DOMA was motivated by impermissible anti-gay animus; thus, DOMA denies equal protection. Put differently, federalism enters only as an evidentiary point in the equal protection analysis. It is not a freestanding value sufficient to trump equality. In a contest between federalism and equality--as in the challenges to state SSM bans--equality wins.

I don't want to give the impression that I'm faulting Mr. Robertson's reporting. His job is to report on the news and the news here is the ruling, not what one law professor happens to think about the ruling. If the result is that he uses accurate quotes of mine to advance the narrative arc of his story, even though those quotes give an incomplete or misleading picture of my views, that's not really his concern, nor should it be. I'm a big boy and I know that when I talk to the press, this is how things work. As long as they quote you accurately and spell your name right, you really can't complain.

So why am I writing this explanation? Partly it's a matter of personal pride. I don't want people who actually know me to think that I have gone over to the dark side on this issue. But there is also a tinge of remorse: I regret the extent, if any, to which my comments might be taken to legitimize a position that I think is unjustified or worse.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Wednesday, 03 Sep 2014 12:30
by Sherry F. Colb

In my column for this week, I discuss the case of United States v. Lee, in which a defendant, Daniel T. Lee, appealed his conviction on the ground that he was denied the Sixth Amendment right to represent himself at his suppression hearing, though he was permitted to represent himself at trial. The U.S. Court of Appeals for the Seventh Circuit held that it was error to deny him the right of self-representation at the suppression hearing and that this error is not subject to harmless error analysis and therefore must be remedied by providing Lee with another suppression hearing before the district judge at which Lee may represent himself.  If he loses the suppression motion, then his conviction will be allowed to stand.

In my column, I examine the reason for having a right to represent oneself and discharge one's attorney, as recognized by the U.S. Supreme Court in Faretta v. California, given that representing onself -- by contrast to the exercise of other criminal procedural protections -- is virtually always detrimental to the prospects of the criminal defendant.

In the course of discussing the right at issue, I analogize it to the right to refuse medical treatment. In both of these cases, an individual is entitled to refuse measures that would likely yield a beneficial outcome for that very individual.  In this post, I am interested in exploring some important differences between the right to refuse medical treatment and the right to refuse attorney representation that could, perhaps, yield different positions on these two issues.

The commonality between the two rights is plain.  In both cases, a person is empowered, as a matter of personal autonomy, to make a decision to refuse the assistance of expert professionals who may know better than the person herself how to maximize positive outcomes for her.  One important difference between the two lies in the resulting required role for the professionals in the event that the individual chooses to exercise her prerogative to refuse that assistance.

When a paitent exercises the right to refuse medical treatment, there are roughly two possibilities. One is that the patient decides to go home, untreated, and hope for the best or try other methods of healing than surgery and pharmaceuticals that may or may not turn out to be equal or superior to the recommended treatment. The other possibility is that the patient stays with the medical experts making the recommendation but asks for either a less aggressive but still conventional treatment or for symptomatic relief in coping with the consequence of untreated illness.  Pain management would be an example of this.

In either case, the patient generally does not, as part of his or her right to refuse medical treatment, get to demand that doctors act in a manner that directly violates their obligation to "do no harm." One could argue that removing life support that has already been started represents active harm, but the U.S. Supreme Court has drawn a firm line between giving a patient a life-ending drug (at the patient's request) and removing artificial life-support (including a respirator and/or a feeding tube), deeming the former active and the latter a species of inaction, consistent with the doctor's refraining from harming the patient.

In the case of the unrepresented criminal defendant, things are a bit different.  The defendant does not simply relinquish the attorney and the trial, as he would do if he pleaded guilty (and as a patient does in refusing a recommended treatment).  The defendant instead maintains his right to a trial, where a judge must preside and rule on objections in a neutral fashion, and where a prosecutor must proceed with her case as though she were facing a real opponent.  In other words, professional actors are compelled by the defendant's self-representation to participate in a proceeding at which the defendant likely does many nonsensical things, because he is ill-equipped to handle the job of defending himself in court.  Cross-examination may be grossly inadequate, because the investigation that makes it possible for a defendant to test the prosecutor's case in court (and to offer an affirmative case as well) is perhaps wholly lacking, due to a defendant's having no idea how to go about interviewing potential witnesses and otherwise working up a case.

Rather than resembling the right to refuse medical treatment, then, the right to represent oneself at a criminal trial may more closely resemble a situation in which a patient forces his surgeon to allow the patient to scrub in, take the scalpel at the crucial moment, and participate in his own appendectomy.  A doctor in such a situation is not simply asked to withdraw but is required instead to play an active role in what she properly regards as medical malpractice.  A less extreme version of this arises when a Jehovah's Witness wishes to undergo surgery but refuses the option of a blood transfusion, thus requiring the surgeon who undertakes an operation to be prepared to allow her patient to bleed out rather than receive a transfusion.  Not all doctors are willing to accept this condition, but because transfusions are often unnecessary, the condition is not as obviously a demand for malpractice as the patient-partipant in an appendectomy.

A judge and prosecuting attorney could feel similarly about conducting a trial with an unqualified (though mentally competent) defendant participating in the proceedings.  As we have seen in some of the small number of high-profile trials at which criminal defendants represent themselves, it is not just the outcome that may undermine confidence in the system but the process itself.  The trials of Colin Ferguson (the Long Island railroad shooter) and Zacarias Moussaoui provide two examples.

Notwithstanding the problems that uniquely accompany the right to self-representation -- given the other professional people involved in a criminal proceeding -- I (ambivalently) still believe that the right is necessary.  The alternatives are to force attorneys on a client who does not feel that they speak for him, and it is therefore unclear that they can be said to be truly "representing" him, or to deny the defendant a trial altogether, by demanding that he either plead guilty, stay silent throughout the trial, or accept unwanted representation.  These strike me as unacceptable alternatives.  One way in which judges productively address the challenges of pro se (self-representing) defendants is to assign counsel to help advise the defendant in his own self-representation without taking over the case from him.  For the defendant who refuses representation, such advisory counsel can provide the best alternative, one that potentially saves the trial from becoming the farce that pro se defendants can sometimes -- intentionally or unwittingly -- turn it into.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Tuesday, 02 Sep 2014 15:01
-- Posted by Neil H. Buchanan

In his post here yesterday, Professor Dorf raised an interesting and important question about statutory interpretation, suggesting that perhaps current practices are "unduly influenced by textualism."  Discussing the Sixth Circuit's opinion in United States v. Miller, a hate crimes case, and Bond v. United States, a 2014 Supreme Court case interpreting a chemical weapons law, Professor Dorf suggested that even apparently clear statutory language can still be ambiguous in ways that might change the outcomes of cases.

The point is subtle, but exceedingly important.  Conventional wisdom, as Professor Dorf describes it, requires a two-part inquiry, in which "one first determines whether the text is clear, and only if the answer is no does one look to background purposes to determine the best interpretation."  This Chevron-style approach essentially says that apparent statutory purpose is always trumped by clear statutory language, no matter how clearly the two might diverge.  Professor Dorf's suggestion, with which I agree, is that knowing the purposes of a statute "can create ambiguity where the words alone do not appear to contain any."  That is, there is nothing wrong with the two-step approach, but we need to be more complete about our inquiry into what even apparently clear words of a statute could mean.

The two examples in Professor Dorf's post are, by design, rather clear-cut cases supporting the argument that he makes.  In both, the ambiguity arises from simply comparing the statutory language to the titles of the statutes in question.  That is, in Miller, the relevant language of the statute does not mention "hate crimes," but the statute itself is called the "Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act."  Similarly, in Bond, the statute in question is called the "Chemical Weapons Convention Implementation Act."  This means that, for those who might be concerned about opening up a limitless inquiry in search of ambiguity, Professor Dorf's examples are about as minimalist as one can imagine.  All one need be willing to do is to look at the bold-print, larger-font words sitting atop the act that one is parsing, and in these two cases, you might reach very different conclusions about what the statutory language means.

Moreover, Professor Dorf points out that an inquiry into possible ambiguity is not, as one might characterize it, fatal in fact.  That is, he argues that "the clarity of the statutory definition of [the relevant statutory term] may persist, even after one takes account of effects and purposes."  In other words, simply because the first prong becomes a richer and more complete exercise does not guarantee that we would always reach a different outcome (or even that we would reach the second prong).

The larger point is that the anti-textualist argument that Professor Dorf is making can still be limited, and it can avoid the well-known pitfalls of inquiring into the "mind of Congress" (insert sarcastic joke here), an inquiry that textualists mock in support of their more crabbed view of statutory interpretation.  Here, I want to offer another example that can be interpreted by the pro-Dorf side (which includes me) to demonstrate the richness of the appropriate inquiry, even as I acknowledge that textualists might at least try to use this example to prove that this is an inquiry that quickly expands beyond all reason.

As the title of this post indicates, my example comes from a federal tax case.  In Klaassen v. Comm'r, 182 F.3d 982 (1999), a unanimous panel of the Tenth Circuit interpreted relevant provisions of the Alternative Minimum Tax (AMT) in a way that forced a middle class family to pay "the millionaires' tax."  The case was prominently featured in David Cay Johnston's prize-winning book, Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich—and Cheat Everybody Else.  I was thus tempted to call Klaassen a "famous" tax case, but other than U.S. v. Windsor, the anti-Defense of Marriage Act case from last year that happened to arise in a tax context, I must be honest and say that there are no famous tax cases.  (The successful prosecution of Al Capone sort of counts, I suppose.)

The Klaassen family belonged to a fundamentalist offshoot of the Presbyterian Church.  Their religious beliefs prevented them from using birth control, and they soon found themselves with ten children.  With a family income (adjusted for inflation to 2014 dollars) in excess of $130,000, the family was hardly poor, but hardly rich -- especially considering how many mouths were being fed from that income.  As it happens, however, the AMT ignores how many mouths are to be fed.  Unlike the regular income tax, which provides a personal exemption for every member of the household, the AMT provides a large, lump-sum exemption regardless of family size, so long as the taxpayers' situation otherwise falls under the relevant criteria.

The IRS pointed out that the Klaassens did, in fact, otherwise fall under the sweep of the AMT, which increased the family's tax bill by about 20%.  The Tenth Circuit confronted the question of whether the "purpose" of the AMT could be used to trump the crystal clear language of the statue.  What is that purpose?  As I suggested above, the AMT is the law that was passed in response to press reports (in 1969) of millionaires who were not paying any federal income tax.  The idea was that the various provisions of the tax code were subject to the law of unintended consequences, such that tax breaks with defensible purposes when viewed separately were being combined to reduce taxes inappropriately for a handful of wealthy taxpayers.  The AMT was supposed to provide a minimum below which taxes on wealthier people could not fall.

That is not the way the provisions of the law were written, however.  The family's argument was simply that the law was clearly never intended to apply to them, whereas the Tenth Circuit said that it had no power to rule contrary to a "clear and unambiguous" Congressional enactment.  Although there is some hint that the case was not well argued, the court's decision made it clear that the judges felt that they had no power whatsoever to rule in favor of the Klaassens.  If one follows the instructions in the AMT, one ineluctably reaches the answer that the government favored; so the taxpayers lost the case.  Even the concurring judge (a very conservative Reagan appointee) wrote only to say that he wished Congress would fix this glitch in the law.

When I teach this case at the end of the Federal Income Taxation course each semester, I treat it as a rather simple and obviously correct decision.  The case is educational mostly because it walks readers through Congress's step-by-step instructions in how to apply key provisions of the AMT.  To drum up interest, I will usually ask whether there could be a "rational basis" for the seemingly odd outcome in the case, answering that one could view it as an "enough is enough" provision of the tax code.  That is, the Klaassens showed that, taking account of other relevant aspects of their situation, the AMT effectively eliminated the personal exemption's tax subsidy for their 9th and 10th children.  I point out in class that a rational Congress could have meant to say, "You know, the American people are happy to help you with the first 8 kids, but after that, you have to pay full price."  Obviously, no actual Congress would say such a thing, but that is not what rational basis inquiry requires.

In light of Professor Dorf's post yesterday, however, I now think that Klaassen is a much more interesting case.  It is true that the relevant statutory language is "clear and unambiguous," in the sense that one could follow its dictates without fear of committing an error of interpretation.  (That does not make it simple, of course.  But it is, however complicated it might be, clear and unambiguous.)  Moreover, the title of the statute does not provide the oomph that we found in the Miller and Bond cases.  Still, how difficult is it to take that next step, and say that the apparently clear and unambiguous language at least cries out to be reconsidered in light of Congress's crystal clear purpose in passing the AMT?

And I truly mean "crystal clear."  No matter what method of statutory interpretation one might use, the record is clear that the Congresses that have enacted and amended the AMT had in mind nothing but high-end tax games, not middle class families with ten children.  And this is where I think textualists would think that they have won the broader argument.  Professor Dorf says, "Well, look, we can at least look at the title of the act."  Then, the Klaassens say, "Well, look, sometimes there is no ambiguity when trying to determine Congressional intent."  And then we are supposedly rushing headlong down that slippery slope that the textualists hate so much, reading committee reports and transcripts of floor debates.

Again, however, I am with Professor Dorf on this one, and maybe with the Klaassens.  This is a classic example of the overdrawn fear of slippery slopes that we find so often in legal debates.  There is nothing inherently difficult about drawing clear lines that include more context.  Indeed, the anti-textualist case is built on the idea that clarity is an artificial construct in the first place, allowing judges to pretend that they are being objective merely by being unwilling to look at a fuller view of the case at hand.

In the Bob Jones University case, for example, the Supreme Court held that there is a public policy exception to the tax deduction for nonprofits.  That exception could have been applied expansively, but in the thirty years since it was decided, the Court's highly limiting language has never been expanded beyond its original holding (that an openly racist policy disqualifies a school or university from nonprofit status).  Some of us wish that the exception had been extended to other contexts, but the point is that the floodgates did not open, even when a supposedly vague exception was created.

Moreover, as Professor Dorf noted, taking account of additional information will not necessarily cause one to conclude that the language of the statute is fatally unclear.  In the case of the AMT, the opportunity for Congress to have expressed its purpose much more simply -- "We limit the provisions of the AMT to those with adjusted gross income in excess of one million dollars" -- and the clarity of each relentless step of the computation would make it relatively easy for a court to say, "You know, I'm convinced that Congress didn't want this to apply to the Klaassens, but Congress blew it, and I refuse to fix it."  But even if a court were to hold otherwise, the standard response applies: If Congress does not agree with a court, it can change the law.

In short, I take Professor Dorf's efforts to limit the reach of his arguments yesterday to be important and necessary, acknowledging that any deviation from simplistic textualism runs the danger of going too far.  However, that danger does not justify pretending that there is clarity by simply ignoring evidence of ambiguity.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 01 Sep 2014 10:30
by Michael Dorf

The recent 6th Circuit opinion in United States v. Miller provides an opportunity for discussiong a broader question about statutory interpretation: namely, to what extent, if any, does the ordinary meaning and use of a term bear on its legal meaning when the statute contains a definition that expands (or otherwise departs from) that ordinary meaning and use? I shall consider that question as raised by both Miller and last Term's SCOTUS decision in Bond v. United States. The two cases involve, respectively, hate crimes and chemical weapons.

Let's begin with Miller. As Marty Lederman explains succinctly in an excellent post on Balkinization, the Miller decision reverses the convictions of various members of the Bergholz Old Order Amish community, who forcibly attacked and cut the beards of Amish men and the hair of Amish women, in violation of their victims' religious beliefs. The acts were clearly crimes but the question in Miller was whether they were hate crimes in violation of a federal statute. The Sixth Circuit said that the statute requires that the government prove that the religion of the victims must be a but-for cause of the crime but that the jury was instructed that it only needed to find that religion was a significant factor in motivating the attack, and that this was reversible error. Professor Lederman criticizes the ruling on the ground that the evidence was overwhelming that religion was a but-for cause of the assaults in the particular cases, so that a properly instructed jury would also have convicted, and that therefore the error was harmless.

To explain my somewhat different take on the case, it will help to understand the underlying facts in a little more detail. The leader of the Bergholz group had excommunicated the eventual victims of the assault when they complained about his leadership practices. Under ordinary Amish tradition, shunning would result: no other Amish community can accept excommunicated members. Nonetheless, these excommunicates were accepted by another Amish community because they successfully argued that the Bergholz excommunication was unorthodox and unjustified. The attacks followed as retribution.

Professor Lederman notes that the attacks were motivated by the fact that some of the excommunicates were seen by the Bergholz group as "Amish hypocrites." Moreover, he argues powerfully that religion was clearly a but-for cause of the type of attack: beard cutting and hair cutting. Even if the motive for the attack was mixed, but for the fact that the victims were Amish, the attack would not have taken this form, which was meant to be, and was, particulary painful for Amish victims. Thus, he concludes that religion was a but-for cause of the attacks.

I do not disagree with Lederman's analysis but I think it is at least potentially incomplete. For while it jibes well with the text of the hate crime statute, it is an awkward fit with the law's purpose. The relevant portions of the statutory text provide: "Whoever, whether or not acting under color of law, willfully causes bodily injury to any person . . .  because of the actual or perceived . . . religion . . . of any person . . . shall be imprisoned not more than 10 years, fined . . . or both . . . ." If that were all we had, then I would agree with Lederman that the evidence is overwhelming: Religion was a but-for cause of (at least) the type of assault committed by the Bergholz defendants.

But is that all we have? I'm not so sure. The current statutory language was enacted in 2009 in the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. For those with short memories, Congress acted on the view that Shepard and Byrd were, respectively, tortured and killed by homophobic and racist bigots as an expression of their respective homophobia and racism. The Act that bears their name recognizes the special harm that hate crimes perpetrate. It recognizes that, in addition to the harm inflicted by an assault qua assault, the animus motivating the crime is an additional wrong.

Taking what was done to Shepard and Byrd as paradigmatic hate crimes, is it clear that the acts perpetrated by the Bergholz Amish were not only despicable acts but also hate crimes? They certainly did not act out of what we would conventionally call anti-Amish bias, much less hatred.

I don't mean to suggest that intra-group attacks can never be hate crimes. An African American who was victimized by other African Americans for not "acting black" or a member of a religious community who was victimized for marrying outside of the group could, in various circumstances, be deemed the victim of a hate crime. And perhaps even in Miller itself it's possible to think of the assaults on excommunicates as an example of inter-sect violence, akin to, say, Protestants attacking Catholics or vice-versa. Just because both groups are Christian doesn't mean there cannot be in groups and out groups within the larger category; that can be true with respect to sub-sects of the Amish as well. But my larger point is simply that there is a way of viewing the facts of Miller as not fitting within our ordinary understanding of the term "hate crime."

Well, one might say, so what? "Hate Crimes" appears in the title of the Act, but the actual Code section under which the defendants were charged only requires that the attack be "because of . . . religion," which does not appear to require any kind of animus or hatred. Statutes are rarely totally coextensive with their background justifications, and so here, one might think, Congress defined the crime to encompass some conduct that we might not conventionally describe as a "hate crime." In these circumstances, conventional wisdom would say that unless the statutory terms are unclear, the background purpose of or justification for the law is irrelevant.

I part company with the conventional wisdom--which seems to me to be unduly influenced by textualism--with respect to what constitutes lack of clarity. The conventional wisdom says that one first determines whether the text is clear, and only if the answer is no does one look to background purposes to determine the best interpretation. In my view, this approach provides too narrow a scope for the consideration of purposes, which can create ambiguity where the words alone do not appear to contain any.

Miller is an arguable example of this phenomenon. So is the SCOTUS decision in Bond. Recall that in Bond the Court construed the Chemical Weapons Convention Implementation Act (CWCIA) not to cover a garden-variety non-lethal poisoning using commonly obtainable chemicals. When the case was decided, I argued in a DoL post that the reasoning of the majority opinion by CJ Roberts rested on the (reasonable) assumption that harmful consequences of construing a text in accordance with its apparently plain meaning should lead a court to reconsider that meaning in light of the statutory purpose. And it happens that in Bond, as in Miller, the statute's very title tells us the statutory purpose: in one case to implement the Chemical Weapons Convention; in the other to punish hate crimes. Thus in neither case does the inquiry into purpose require the court to speculate about the legislative purpose.

Let me close with four caveats.

(1) I think the argument for finding textual ambiguity is somewhat better in Miller than in Bond. Even if one thinks that Congress was only trying to forbid what are considered chemical weapons in ordinary language, it's still difficult to make that judgment fit with the actual text of the CWCIA. Put differently, the clarity of the statutory definition of chemical weapons may persist, even after one takes account of effects and purposes. By contrast, in Miller, one might think that to attack someone because of of a forbidden ground means attacking someone due to animus based upon that ground. That is a narrower view of "because of" than its most natural ordinary language meaning, but still a fair reading of the language.

(2) Cutting in the other direction, in Bond the Court may have had a better justification for its narrow reading: to avoid the constitutional issue under the Treaty Power. As Professor Lederman notes, there is a similar issue lurking in the background in Miller. Because the hate crimes legislation contains no state action requirement, there is a question about Congress's affirmative power to enact it. As applied to racial attacks, it can be justified on 13th Amendment grounds, at least so long as Jones v. Alfred H. Mayer Co. remains good law. But in some other circumstances, the law would need to be justified under the Commerce Clause, which could be challenging. Nonetheless, constitutional avoidance doesn't fit with the animus requirement, as animus is not a Commerce Clause concept.

(3) I want to be clear that I'm not saying that in Miller the 6th Circuit actually relied on the animus construction of "because of." The dissent in Miller accuses the majority of doing that, but the point is not made expressly by the Miller majority itself; it is at most an implicit assumption in that opinion.

(4) Finally, I also want to be clear that I am not saying that I agree with the application of the principle I have identified here in either Miller or Bond. I am only saying that the principle--that background purposes can identify a lack of clarity that does not appear on the face of statutory text--is sound. The principle makes the results in Miller and Bond more plausible than they would be without it, but I am not claiming that it necessarily renders either decision correct.
Author: "noreply@blogger.com (Michael C. Dorf)"
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