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Date: Friday, 29 Aug 2014 11:00
by Michael Dorf

A recent New Yorker article by Jill Lepore uses the Democratic primary challenge by Fordham law professor Zephyr Teachout to NY Governor Andrew Cuomo as an occasion to problematize the concept of political corruption. I generally think highly of Lepore but this article strikes me as misguided, for reasons I shall explain below. But first, some context.

Teachout and (my former colleague) Columbia law professor Tim Wu are challenging, respectively, Cuomo and his running mate Kathy Hochul. The Teachout/Wu campaign makes what is essentially a two-pronged pitch: (1) Cuomo and Hochul are too conservative for the Democratic Party nomination; and (2) there are serious concerns about Cuomo's integrity.

Given Cuomo's name recognition and generally favorabile (albeit slipping) ratings, Teachout is a long-shot for the gubernatorial nomination but Wu has a better chance at the second spot on the ballot. Hochul is not much better known than Wu and her record as a (former) member of Congress really is quite conservative for a NY Democrat (as argued in a "dossier" released by Teachout and Wu earlier this week). For that reason, yesterday the New York Times endorsed Wu's candidacy. On Wednesday, the Times declined to endorse either Cuomo or Teachout for Governor. Although critical of Cuomo's failure to address corruption in state government and laudatory of Teachout, the Times editorial board thought Teachout too green to merit the gubernatorial endorsement; Wu also lacks political experience, but the Times was willing to overlook that fact because the Lieutenant Governor's job carries substantially fewer responsibilities. Because primary voters vote for Governor and Lieutenant Governor on separate lines, there is thus a real chance that Cuomo will get the top spot and Wu the second spot.

And then, in the event that the simmering scandal involving Cuomo's disbanding of the Moreland Commission reaches a full boil (more about that below), it is possible to imagine Cuomo resigning or being removed from office, leaving Wu as Governor. Even absent such scenarios, the Teachout/Wu campaign has already exceeded expectations in challenging a governor who, but for the prospect of a Hillary Clinton candidacy, would probably be running for President. Both Teachout and Wu have been picking up endorsements from liberal groups, and of course, they have very strong backing among the all-important constituency of law professors.

Now, about that scandal. About a year ago, Governor Cuomo appointed the Moreland Commission to investigate public corruption. Then, when the commission started investigating people with ties to Cuomo, he killed the commission. It's possible the timing was coincidental. Cuomo says the commission's purpose was to generate support for a package of reform legislation, so that once the legislation was enacted (albeit minus strong public finance provisions), the commission was no longer needed. It's also possible that Cuomo's actions were perfectly legal--just as it's possible that Texas Governor Rick Perry's zeroing out of a budget for the office investigating his alleged corruption was perfectly legal. But in both instances the actions create at least some suspicion. And even if both Cuomo and Perry acted lawfully, that doesn't mean they can't be criticized for acting sleazily. Both actions call to mind President Nixon's firing (via Robert Bork) of Archibald Cox when Cox tried to do his job as special prosecutor. Nixon had the power to do it, but he rightly paid a steep political price.

The concerns about Cuomo's integrity are a good fit for Teachout's insurgent candidacy because her academic specialty is campaign finance and she has a forthcoming book about political corruption. In a nutshell, Teachout argues that the modern Supreme Court case law--which only allows restrictions on campaign finance that target quid pro quo corruption--uses a too-narrow definition of corruption. She points to the historical record of the Founding to argue that our political tradition once deployed a broader conception of corruption.

Lepore says that Teachout's historical case is of limited value. Just as Tea Party invocations of the Founding Fathers lack relevance today, she says, so does Teachout's mining of history for more progressive ends. I think that's a fair criticism, although one might understand Teachout to be making a point about hypocrisy: It's the Court's self-styled originalists who most strongly insist on what she argues is a conception of corruption that conflicts with the view held at the Founding.

Beyond the historical point, Lepore cites scholars like Yale Law School dean Robert Post and my Cornell Law School colleague Laura Underkuffler for the proposition that "corruption" is too mushy a concept to form the basis of a political program and to (more or less) defend the constitutional status quo given to us by the SCOTUS. I haven't yet read the Post book but I have read Underkuffler's and it does not make the sweeping claims that Lepore attributes to it. Underkuffler points to the troubled past of the concept of corruption not for the purpose of abandoning it but to show that it needs to be clarified. Perhaps Post does propose abandoning efforts to get at corruption, but if he does, then so much the worse for him.

Corruption is, in fact, a relatively straightforward idea. To corrupt an institution or practice is to damage it, to divert it from its purpose. To be sure, that requires some sense of what the purpose of the practice or institution is, but with respect to many circumstances, that is not difficult to say. For example, the purpose of a municipal police force is to protect the community as a whole, so a police officer who takes private money to provide special protection (while on duty) or worse, to turn a blind eye to crime, is corrupt.

The issue is likewise simple with respect to democracy, at least so far as the big picture is concerned. We may disagree about subtleties like when a representative should vote her conscience as against the wishes of her constituencies, but we generally agree that representative government in a system of one-person-one-vote is fundamentally about giving each person an equal say in decisions that affect him or her. In practice, we tolerate various deviations from the ideal. Political communities are represented in ways that diverge from one-person-one-vote (as in the U.S. Senate); people who care more about politics speak up and thus have their voices heard more; etc.

But no one can seriously argue that it is consistent with the purpose of 21st century democracy for elected officials to give a great deal of extra weight to the interests and wishes of wealthy people who support their election simply because of that support. That is a corruption of democracy, and a harmful corruption at that. A billionaire casino owner may be an expert in running profitable casinos but is not, in virtue of his casino experience or anything else, an expert in the Middle East. Inheriting and successfully operating a multi-billion dollar multinational industrial corporation does not make people into experts on climate science. And so when such people bend government policy to their will in virtue of their campaign contributions or independent expenditures, they corrupt politics in an obvious sense. Teachout and Wu have it right.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Thursday, 28 Aug 2014 15:04
-- Posted by Neil H. Buchanan

[Note to Readers: My new Verdict column was published this morning: "One Wrong Answer to Some Very Important Questions: Understanding Why Cash Payments to College Athletes is a Bad Idea."  I discuss that column in the latter part of the post below.]

According to an old adage, when all you have is a hammer, everything starts to look like a nail.  There are actually two ways to understand that adage, one innocent and one cynical.  The innocent interpretation simply says that a well-meaning person would make the best use of whatever tools are currently available.  Although there might exist more appropriate tools for a particular job, sometimes a hammer is the only tool at hand.  Therefore, if you have to drive a screw into a block of wood, you look at the screw as if it were a nail, and make the best of a bad situation.

In the cynical view, a person with a hammer starts to think the hammer is the only useful tool on earth.  Therefore, even when there really is no good way to put the hammer to use on the problem at hand, the person convinces himself that the problem will be solved by hammering everything in sight.  Every problem becomes an excuse to use the hammer.

But the cynical view can have a quasi-innocent twist.  During the Cold War, some journalists interviewed scientists at one or more U.S. nuclear weapons facilities (Los Alamos, I think, and maybe others).  Some of the scientists were asked to react to news items that suggested that the Soviet threat was receding (rumors of arms agreements, reports that Soviet technology was not as advanced as had been assumed, and so on), while other scientists were given bits of information that made things look more threatening.  In every case, both groups of scientists responded to the information by saying, in essence, "This proves that what we do here is more important than ever."

Unlike the purely innocent view, this line of thinking really does require imagining that one tool solves all problems, and to think of even apparent non-problems as even more serious problems.  However, one could easily imagine good-hearted people falling into this "innocent-cynical" mode of thinking.  In addition to being self-validating, it is simply a matter of thinking about problems through the most familiar lens: "How can I help?  By doing what I do best."  It is ultimately self-serving, but it can be unconscious

And then there is the cynical-cynical version, which we see in Republican politics all the time (and sometimes elsewhere).  One of the most damaging idees fixes of the past generation was the thought that the answer to our foreign policy problems was to invade Iraq.  Some Republicans started to think about every issue as an excuse to "take out Saddam," and it did not matter what the excuse was, nor did it matter when those excuses were debunked.  The world is still seeing the disastrous effects of that obsession.

More generally, Republicans believe that every economic problem will be solved by cutting taxes, especially the taxes that rich people and businesses pay.  The economy is strong?  Tax cuts.  The economy is weak?  Tax cuts.  There might be a bubble?  Tax cuts.  The bubble might have burst?  Tax cuts.  Combining these two obsessions, one former Republican House leader once said that the most important thing to do after we invaded Iraq was to cut capital gains taxes.

I have been mulling over this phenomenon recently because I began to notice that three of the issues on which I have written most recently -- college sports, public school teaching, and Social Security -- all show signs of being dominated by cynical-cynical solutions, perhaps with some assistance from innocent-cynical people.

Put simply, I have begun to notice how many times I have recently written something along the following lines: "But if that is really the problem, how is this a solution?"  The most recent example is in discussing the problems facing big-time college sports.  The "hammer" -- that is, the all-purpose answer to every question -- is to pay cash salaries to college athletes.  Coaches are being overpaid?  Give cash to the players.  Universities are not properly controlling athletic departments?  Give cash to the players.  Universities should arguably be paying the Unrelated Business Income Tax?  Give cash to the players.  The players are not really receiving college educations?  Cash!

I acknowledge that there are people who feel, at a deep level, that college sports should simply be treated as a for-profit business, and thus that universities should be subject to all of the rules that would apply to any other industry.  In that case, any agreement among competitors is collusive.  I fundamentally disagree with that view, because I believe that college sports can and should be used to support the educational mission of nonprofit institutions, for the benefit of the athletes and other students.  And as I explain in today's Verdict column, that can only be accomplished by cooperation that, like plenty of other nonprofit activity, is properly exempted from certain laws (antitrust in particular) that would apply to profit-seeking businesses.

But I do think that the "let 'em compete by the normal rules of capitalism" view at least has the virtue of being clear in its principles.  Although it is an idee fixe of a different sort, it is not a view that requires anyone to use every other complaint about college sports as a justification for the preferred solution.  One can quite easily think that colleges are providing a fine education to their athletes, that injuries are simply part of the game (and an assumed risk on the part of players), that coaches are not too powerful, and so on, yet still simply think that this is not nonprofit activity.  I disagree, but I appreciate the non-opportunistic nature of that argument.

Even so, most of the so-called debate about college athletics leaves one asking the question that I noted above: "But if that is really the problem, how is this a solution?"  Similarly, when I recently dug into the debates about schoolteachers (Dorf on Law posts here and here), it was amazing to see how a very well-funded, bipartisan consensus has emerged in which tenure for teachers is thought to be the root of all evil.

Teachers do not volunteer to teach in poor schools?  End tenure!  Student test scores have gone down, even while tenure has been eroded?  End tenure!  We have a hard time keeping good teachers in the profession?  End tenure!  It is all more than a bit bizarre, but it continues because advocates are too often allowed to simply invoke a problem and then sell their all-purpose snake oil.

Finally, in all of my writing about Social Security (most recent Dorf on Law post here), the "moderate" view (as opposed to the radical effort to privatize the system) is to cut benefits a few decades from now.  It does not seem to matter that Social Security is not necessarily in trouble, because we have an answer: Cut benefits in a few decades.  It does not matter that, if Social Security does ultimately face some financing difficulties, it will be because of wage stagnation during people's working lives.  People earned too little while they worked?  Cut their benefits after they retire!

Most importantly, consider the loudest complaint, that Social Security is supposedly coddling current retirees and cheating current younger workers.  The solution?  Cut Social Security benefits when those younger workers retire!  "Hey, young people.  Because our long-term forecasts indicate that there might not be adequate funding to pay 100% of statutory benefits when you get older, we are going to put cuts in place now, so that you will definitely be entitled to smaller payments when you retire.  Generational justice!"

As I noted, some innocent-cynical thinking surely supports all of these misunderstandings.  But it is mostly, I think, cynical-cynical thinking, an opportunistic hijacking of various debates to achieve goals that have little or nothing to do with the purported problems.  Is it really too much to ask that proposed solutions actually solve the problem at hand?  That is not what is really going on.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 27 Aug 2014 11:00
by Michael Dorf

In my new Verdict column I endorse the proposal for police to be equipped with wearable cameras to record police-citizen interactions. I note the legitimate concerns raised by these proposals but conclude that they can be accommodated through careful implementation. On the whole, I agree with the view that recording is win-win: It will protect citizens against abusive policing and protect honest police against bogus allegations of abuse. Nonetheless, I explain why recording police is no panacea. There will still be disputes over what the recordings show (as in the aftermath of the Rodney King beating) and the dangers inherent in all police-citizen conflicts will mean that, even when police know they are being recorded, they will sometimes use deadly force with tragic consequences. Thus, I argue that policy makers should take steps to reduce the frequency of police-citizen interactions with the potential for violence. I suggest that the increased risk of events like the shooting of Michael Brown is one of the costs of over-criminalization.

Here I want to ask whether there are implications of my analysis for "broken windows" policing. As most readers probably know, the term "broken windows" was coined in the early 1980s by James Q. Wilson and George Kelling to refer to signs of low-level social disorder: broken windows; graffiti; litter; etc. In their theory, neighborhoods with such evidence of minor disorder embolden criminals to commit more serious crimes. Conversely, aggressive policing to attack minor crime creates liveable environments and a virtuous cycle of law-abiding behavior.

The most well-known attempt to implement broken-windows policing occurred during the NYC Mayoral administration of Rudy Giuliani. He cracked down on "squeegee men"--who "cleaned" windshields of motorists stopped at traffic lights, sometimes with an implicit threat of damage to the car or worse if drivers did not agree to pay for this ostensible service; he went after graffiti artists; he targeted subway fare-beating. And--according to the proponents of the broken windows theory--it worked. The nation as a whole experienced a substantial drop in violent crime from the peaks of the late 1980s and early 1990s, but the drop in crime in New York City was substantially larger.

How much of the drop in crime was really due to broken windows policing? That is a hotly debated topic among criminologists. The causes of the decline in crime nationally and in particular locales remain unclear. Various factors to which different scholars point in varying degrees include: more police on the street; targeted policing using big data (as in "Compstat"); more arrests; longer prison sentences; the economic boom of the 1990s through early 2000s; the "big brother" phenomenon in which young people saw the devastation wrought by crack cocaine on the generation ahead of them and were scared straight; legalized abortion; the remission of violence as a "contagion"; and more.

According to one account, broken windows policing was important but not for the reasons originally identified by Wilson and Kelling. In this alternative view, the key was New York's mandatory minimum sentence of imprisonment for carrying an unlicensed firearm (in combination with very restrictive gun licensing policies). Prior to broken windows policing, a young man living in a dangerous neighborhood in NYC might typically go out armed, even if he was not a serious criminal. But knowing that the odds of an arrest for some minor offense (like fare-beating) went up under the new policing policy, he would leave his gun at home, for fear that a minor ticket would turn into a substantial prison sentence following the stop-and-frisk. Thus, with fewer guns on the street, there was less violence.

With real disagreement and puzzlement persisting among professional criminologists, I am not going to venture a guess as to how much weight should be given to each of the factors mentioned above (or others) in reducing crime. Here is a 2002 paper arguing that broken windows policing in NYC accounted for about half of the decline in robberies and motor vehicle thefts. Here is a 2006 paper arguing that there is no good evidence for the efficacy of broken windows policing.

Suppose that you are a policy maker who does not have the luxury of waiting another 20 years (or longer) for a consensus to emerge among criminologists. Suppose further that, after consulting the best experts you can find, you think that broken windows policing does play an important role in suppressing crime. (Again, I don't take a position on whether this is true; I'm just asking readers to imagine that they think it's true.) Does that mean that your administration should implement a broken windows policing strategy?

I think that, even assuming some efficacy for broken windows policing, the answer is unclear. That's because broken windows policing may reduce or suppress crime, while at the same time causing or exacerbating other problems, like friction between the community and the police, and creating more opportunities for violent police-citizen conflicts.

What I have just described is far from hypothetical. It appears to be the predicament in which NYC Mayor Bill deBlasio now finds himself. His successful mayoral campaign rested in no small part on his opposition to the stop-and-frisk policies of the prior Bloomberg and Giuliani administrations, which were very unpopular among the city's minority population. Mayor de Blasio has taken steps to revise those policies, including in the litigation still ongoing in federal court. But at the same time, de Blasio handed over the job of NYC Police Chief to Bill Bratton, who is a believer in and practitioner of broken windows policing.

As a political matter, de Blasio's choice of Bratton was shrewd. Bratton is the closest thing one can find to a rock star among major metropolitan police chiefs. He has credibility with police based on his successful prior stint as chief in NYC and his successes elsewhere. He also has credibility with the progressive and minority constituencies who supported de Blasio's election because Bratton believes in a diverse police force and at least some version of community policing. Bratton also has credibility with these constituencies because of his falling out with Giuliani, although their feuding may have had more to do with who should get credit for reducing crime than policy differences.

But at the end of the day, these considerations will only go so far. So long as Bratton's NYPD pursue broken windows policing, arrest rates will be high, and police-citizen conflicts will occur with some frequency. That may be an acceptable price to pay for keeping the violent crime rate low, but it will inevitably trade off one set of goods for another, and for that tradeoff de Blasio is likely to pay a political price. Indeed, it appears that he already is paying that price.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 26 Aug 2014 14:58
-- Posted by Neil H. Buchanan

Last Friday, the editors of The Washington Post announced that they will no longer refer to the city of Washington's NFL team by its official name, the Redskins.  "[W]hile we wait for the National Football League to catch up with thoughtful opinion and common decency, we have decided that, except when it is essential for clarity or effect, we will no longer use the slur ourselves."  Here, I will not engage with whatever remains of the debate over whether the team name should be changed, since that would simply be piling on.  (Sorry, but a post like this has to include at least one sports pun.)  Instead, I am interested in why the owner of the Redskins, Daniel Snyder, is missing out on a way to play both sides of the ball and profit from a name change.  (Last pun.  I promise.)

Along with TV money, merchandising revenues fuel modern sports, at both the professional and college levels.  Selling team jerseys and other logo-ed items to obsessed fans is a huge business.  It was not always thus.  If you watch clips from games in the Sixties and Seventies, and keep an eye on the stands, you will see something that looks strange: People wearing overcoats, parkas, fedoras, plaid scarves, and other everyday wear.  As an adolescent, I was a big fan of the great Minnesota Vikings teams that went to four Super Bowls.  (Yes, they lost all four times, but not consecutively.  I'm looking at you, Bills fans!)  I really, really wanted to buy a Vikings team jersey, but it was nearly impossible to find them; and those that were available had been priced prohibitively.

By 1999, however, when my brother and I attended a Kansas City Chiefs game, we were almost the only people in the stands who were not wearing licensed logo gear from the home team.  If a crime had been committed there (and surely there were many), a witness would have had an impossible time with a line-up: "Um, officer, I think it was one of the 80,000 people wearing a Chiefs home jersey, number 88."  (Let us leave aside the racist elements of the Chiefs' name and logo.)

From a revenue standpoint, the problem is that fan bases are finite, and even when the fans have a seemingly insatiable desire to own team merchandise, their willingness to own multiple copies of the same gear does have limits.  Even the most obsessed current fan of the Vikings that I know owns "only" one home and one away jersey for each day of the week.  This was very profitable for the Vikings while it lasted, but not a long-term revenue source.

The solution that NFL teams first tried was to change teams' uniforms every few years.  Suddenly, the kid who cherished his official Giants jersey discovered that the team had changed the uniforms, just as Patriots fans had discovered the year before, and nearly every team in the league soon followed suit.  The helmet lamps were suddenly the wrong color, and had the wrong logos or letters.  (Many Giants fans, I'm sure, felt compelled to replace helmet lamps bearing the "Giants" swooshy logo with the classic NY logo.)

When that strategy had been pushed as far as possible, the teams discovered "throwback" uniforms, where they would have players wear the uniform styles from earlier eras.  In some cases, this meant bringing out incredibly ugly, long-forgotten jerseys like the Pittsburgh Steelers 1933 uniforms.  In others, it simply meant having the team wear the same uniforms that had been superseded a few years earlier.  In each case, the "new" uniforms were a new must-own for fans.  At the college level, this reached its absurd nadir a few years ago, when both Michigan and Notre Dame agreed to play their annual game in stylized throwback uniforms.

None of these revenues are safe without trademark protection.  Uniforms are easy to copy, and cheap to produce, and the NFL and its teams thus aggressively protect their trademarks by policing sales of knock-off merchandise.  It was thus big news earlier this summer, when the U.S. Patent and Trademark Office (PTO) canceled the Washington team's trademark protection, because the team's name and logo meet the legal definition of "disparaging," making them ineligible for legal protection.  However, according to The Washington Post's article describing the decision: "The ruling cannot stop the team from selling T-shirts, beer glasses and license-plate holders with the moniker. ... And the trademark registrations will remain effective during any appeal process."

Snyder, the team's owner, "has steadfastly refused to consider a name change, saying the name and logo honor Native Americans."  The question is, why is he still doing so?  One possibility is that he is simply a jerk, a theory that many of the teams' fans (and any sentient observer) would strongly support.  Certainly, one can see why he would want to fight the PTO's decision.  But Snyder is not one of those early owners of NFL teams who made all of his money by buying a team for $25,000 in the Sixties and then seeing it become a billion-dollar asset.  Snyder was a private equity billionaire, and he bought the Redskins in the late 1990's essentially as a toy.  (See also Cuban, Mark.)

Which means that Snyder is not a romantic or a man of principle, and he is not someone who would make a stand for anything other than money.  So why is he missing out on a clear opportunity to make a jujitsu move with the team name controversy, and double his profits?

We know that there would be a backlash against a name change.  About two decades ago, there was a protest by a Native American group outside the Washington stadium, which was interrupted by Washington fans dressed in cowboy outfits, who surrounded and lassoed the protesters.  It was ugly.  Even short of that, however, there are still plenty of people who would shout "political correctness" and suddenly become deeply devoted to keeping the "Redskins tradition" alive, if Snyder were to change the team's name.  There are still diehard groups complaining about colleges that changed their racist names or logos decades ago, and it would be even more intense with the Washington team (because everything is more intense with that fan base).

But that merely means that Snyder could make a profit from both groups of fans.  He could announce that he felt "bullied" into changing the name, citing efforts in Congress to force his hand.  Inciting the public's sense that he had been wronged, he could then grimly say that he had no choice, and parade his star quarterback in front of the cameras, wearing a spanking new uniform for the Washington Swamprats.  (OK, that would be a bit too accurate re DC's climate and geography.)  The website for buying the new merchandise could flash across the bottom of the screen while Snyder shook his fist about the injustice of it all.

What of the PTO's ruling?  If he were ultimately to lose the appeal, Snyder could still make whatever diminished profits that he could earn in an open market.  Even if that turned out to be zero, he would still have been given a silver-platter opportunity to sell his fan base gajillions of dollars of new branded crap.  But if he won on appeal, or more intriguingly, if he could negotiate with his opponents to drop the claim in return for his agreement to choreograph an oh-so-reluctant name change, then he would be able to gain extra profits from the electrified racist ... er. traditionalist ... base of fans who will be chanting "Redskins forever" for years to come.

The interesting thing about this strategy is that Snyder does not need to say different things to different audiences.  He could go to his grave claiming that the name was not disgusting, and the people who disagree with him would still be satisfied.  He would merely count on the enraged diehards to double his profits (or more).

I doubt that I am the only person who has thought of this strategy.  What surprises me is that Snyder has not thought of it himself.  How often does a completely unprincipled person have a chance to profit by doing the right thing, all the while playing to the ugliest elements of his customer base?
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 25 Aug 2014 11:00
by Michael Dorf

In my post last week on the indictment of Rick Perry, I criticized the argument by the Perry camp that the use or threatened use of the governor's veto power for nefarious purposes cannot be the basis for a criminal charge because the state constitution assigns to the governor the power of vetoing legislation. I said that this argument was weak, "at least if not further qualified." I then explained both why the maximalist argument made by Perry is weak and how a more nuanced version of the claim could be stronger. Later in the week, Professor Volokh defended the maximalist view. Some of what he wrote addresses other issues raised by the Perry indictment, but to the extent that Volokh has offered a response to my prior post (which he quotes at length), I am not persuaded.

Volokh argues that the legislature cannot, through ordinary legislation, impose limits on the executive's constitutionally conferred veto power. Before explaining where I think Volokh goes wrong, I should note that although each of us has referred to Texas law, the argument is mostly interesting only insofar as it raises general questions of how executives interact with legislatures. Neither of us is an expert in Texas law, and so it's possible that there are peculiarities of Texas law that support or undermine general arguments that he or I have made. And, as I said in my original post, I don't have a view about whether the case against Perry is weak or strong, all things considered. I understood Professor Volokh to be answering my post in the same spirit -- i.e., discussing how these issues work in general in constitutional systems with separation of powers and in which the head of the executive has veto authority. I shall continue the discussion in the same spirit, making general rather than Texas-specific points, except where otherwise noted.

Volokh offers two related grounds for his conclusion that a governor's exercise of the veto power may not be the basis for a prosecution under the particular statutes he is charged with violating: 1) Ordinary legislation cannot override a constitutional provision, so insofar as the state constitution confers on the governor unfettered discretion to exercise the veto power, that constitutional grant of power takes precedence over any legislation; and 2) A governor's veto acts as a check on the legislature, so it would also violate separation of powers for the legislature to place limits on the governor's exercise of the veto power.

These propositions strike me as sound, so far as they go, but I don't think they go as far as Volokh assumes. So, where do we disagree? The core of our disagreement is over proposition 1, which strikes me as an overstatement. A governor or president has complete discretion to exercise the veto power for good or bad policy reasons, or as part of a log-rolling or horse-trading deal, but that does not mean that he or she can never be held criminally liable--at least absent something more than the constitutional assignment of a veto power--for using that power in other, corrupt ways.

Some constitutions have particular provisions providing partial or even total immunity for acts taken in various official capacities. For example, the Speech or Debate Clause of Article I, Sec. 6 of the U.S. Constitution confers such an immunity on members of Congress. The U.S. Constitution contains no such express immunity for executive actions of the President, although in Nixon v. Fitzgerald the SCOTUS relied (partly) on principles of separation of powers to fashion a judge-made doctrine giving the President absolute immunity against civil suits for acts taken in his official capacity; there may be some similar immunity against criminal charges under the federal Constitution, while the person remains in office; however, the impeachment clause makes clear that after a president is out of office he may be subject to criminal sanctions ("but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law").

Does the Texas Constitution provide the Governor with immunity against criminal prosecution either during his tenure in office or permanently? As I've said, I'm not an expert in Texas law, so it's possible, but I doubt it.  If there were some such express or judicially implied immunity, wouldn't Perry or his defenders have invoked it? In any event, the key point in my last post and this one is that the argument made thus far-- the one I'm critiquing--doesn't rest on any special immunity from prosecution. The argument asserts that the power to veto--in itself--necessarily entails immunity from criminal prosecution under an ordinary law because such a prosecution would be inconsistent with the constitutional assignment of the veto power to the governor. That's the claim that strikes me as overstated.

To see why, consider an analogous question involving rights. It is conventional to say that there is a First Amendment right to burn a flag, per Texas v. Johnson. But it does not follow that someone exercising that right is immune from prosecution for other crimes he commits while happening to burn a flag. If Shmonson used a burning American flag to deliberately set fire to his neighbor's house, he could be prosecuted for arson. If Gronson used a burning American flag to torch his own failing candy store to collect the insurance money, he could be prosecuted for fraud.

Professor Volokh attempts to show that a governor is immune from prosecution for exercising the veto power by giving a number of examples in which the legislature specifically outlaws particular uses of the veto power. Yet his examples are plainly irrelevant to the question of whether the governor can be prosecuted under a general statute when the governor happens to violate that general statute by exercising the veto power. They are like the Texas law that specifically targeted flag desecreation in Texas v. Johnson, not like the arson law or the fraud law.

Volokh does give one hypothetical example in which a governor is prosecuted under a general statute, but it's a peculiar one.  Here's his best example:
Say that a governor vetoes a bill appropriating money for some public health measure. Someone dies, allegedly because of the veto (i.e., the person wouldn’t have died had the measure been funded). A prosecutor then charges the governor with “depraved heart” murder, meaning (roughly) that the governor acted despite his knowledge that there was a very grave and unjustified risk that his veto would cause death. Or perhaps the prosecutor charges the governor with negligent manslaughter, meaning (roughly) that the governor was grossly negligent in vetoing the law.
I agree with Volokh's intuition that charging the governor with murder or manslaughter in this example would violate the best conception of separation of powers, but not with his conclusion. For one thing, given the libertarian cast of American criminal law, in this context the veto looks like a non-culpable failure to rescue rather than an affirmative act. Moreover, the particular consequences here are inextricably tied up in the governor's policy judgment about whether the public health measure is wise. Presumably the proponents of the health measure argue that absent the measure, people would die, whereas opponents argue either that they wouldn't or that if they do, that's unfortunate but that funding the measure would have other harmful consequences, such as raising taxes, increasing the deficit, etc. Volokh's example really only shows that under the best conception of separation of powers, a governor cannot be prosecuted for the foreseeable consequences of a questionable or even bad policy decision.

But that is not enough. My claim, and presumably the claim of the prosecutor in the Perry case, is not that every time a governor vetoes a law he can be prosecuted for doing so. I am simply denying the Perry camp's equally sweeping contrary claim, namely that a governor can never be prosecuted for exercising the veto power.  Even one example of a circumstance in which separation of powers is not offended by prosecuting a governor for his exercise of the veto power would suffice to rebut the maximalist view of Perry's defenders. And we already have one: bribery. As I noted in the earlier post, a governor who vetoes a bill as part of a quid pro quo for a a bribe can be prosecuted for bribery, notwithstanding the fact that the governor has unfettered discretion to make a good or bad policy choice in deciding whether to sign or veto a law.

Volokh does not deny that a governor could be prosecuted for bribery in connection with the veto power, but instead argues that bribery is somehow unique--an exception that proves the supposed rule that a governor cannot be prosecuted for the exercise of the veto power. He attempts to distinguish bribery from all other crimes in three ways. Let's consider them in turn.

1) Volokh cites the 1972 SCOTUS decision in United States v. Brewster, which said that the federal statutory crime of bribery consists in taking the bribe, regardless of "performance of the illegal promise." That's true. It's even possible to read Brewster as relying on a principle of constitutional avoidance for that reading of the statute--although it would be very odd for the Court to apply constitutional avoidance to make it easier to convict a criminal defendant. But let's suppose that we read Brewster for all it is worth. It would mean that the federal Constitution requires that, as applied to members of Congress, the crime of bribery must refer only to the acceptance of a bribe, not the performance of the act for which the bribe is paid. But only for members of Congress, because the constitutional question in Brewster was whether the crime of bribery violated the Speech & Debate Clause, which, as I noted above, is a special immunity for legislators. It is not a general entailment of separation of powers, so it does not apply to the federal executive, much less to executives in all governments with separation of powers.

2) Volokh next says that "there is a special provision of the Texas Constitution that expressly forbids accepting a bribe by an official (including the governor), and authorizes criminal punishment for such behavior." I think Volokh means by this to suggest that, in the absence of this special provision, separation of powers would forbid bribery prosecutions of the Texas governor for the exercise of the veto power. Yet (other than the addition of a line-item veto), the veto provision of the Texas Constitution is very similar to its federal counterpart, which does not need a "special provision" to authorize bribery prosecutions. How do I know the federal veto clause does not create the need for such a special provision? Because the impeachment clause recognizes that the President and other officials may be impeached (and later prosecuted) for "Treason, Bribery, or other High Crimes or Misdemeanors" without specially enumerating what those sundry other crimes are.

As for the Texas Constitution, I'm not sure what "special provision" Volokh is referring to, but the portion of the Texas Constitution setting out the executive powers contains no reference to bribery. There is a general provision of the Texas Constitution that forbids someone who obtained his office via bribery from continuing in office, but that's not at issue with respect to Governor Perry. His case would appear to be governed by another provision in the same Article of the state Constitution obligating the legislature to enact laws that "exclude from office persons who have been convicted of bribery, perjury, forgery, or other high crimes." The reference to unspecified other crimes strongly implies that the background assumption is that gubernatorial misconduct--whether in the use of the veto or some other way--is subject to prosecution, regardless of whether it takes the form of taking bribes or something else. Far from showing the uniqueness of bribery, this "special provision" shows that bribery is merely one of a large class of crimes for which governors can be prosecuted as a consequence of their abuse of power.

3) Volokh then adds that "the risk of prosecution for bribery is far less of a deterrent to a veto (assuming the governor hasn’t been bribed) than the risk of prosecution for violating [other laws], precisely because a prosecution for bribery has to show an agreement to take a bribe — not just a supposedly improper intent behind the veto." This seems to me both wrong and irrelevant.

It's wrong because sophisticated corrupt government officials have ways of taking bribes that are proved in much the same way as other kinds of corruption charges. Unless they are idiots, corrupt government officials do not receive checks with "bribe" written in the memo section; they do not even usually receive bags of small unmarked bills; they typically take otherwise legal campaign contributions in exchange for otherwise legal conduct; or they funnel money through intermediaries. Thus, prosecuting such an official for accepting bribery involves the same sort of evidence as is needed when prosecuting an official for other forms of corruption in which intent is critical. The current corruption prosecution of former Virginia Governor Bob McDonnell makes this point pretty clearly: it is not disputed that McDonnell and his wife took gifts from Johnnie R. Williams; the sticking point is why, just as it would be if the question were improper use of the veto power.

Moreover, even if Volokh were right that proof that a governor illegally took a bribe in exchange for a veto would be more concrete than proof that a governor committed some other crime by exercising his veto power, so what? That would simply mean that, other things being equal, it would be easier for governors to get away with committing one kind of crime than another. It would not mean that the exercise of the veto power is immune to prosecution for all crimes other than bribery.

Accordingly, I think Volokh's efforts to distinguish bribery are wholly unavailing. Still, it is worth considering why he tries so hard to distinguish bribery. He apparently shares my strong intuition that a governor who took a bribe to veto (or to sign) legislation should be subject to criminal punishment for that offense, and that to preserve his separation-of-powers theory he therefore needs some way to show that bribery is unique--that no other offenses may be committed in the exercise of the veto power. That the effort is unavailing is important, but the fact that he makes the effort at all is revealing.

I'll offer one more example of a crime at the federal level that undermines the strong separation-of-powers claim. Consider treason. (Spoiler alert!): Imagine a scenario based on The Manchurian Candidate or Homeland if Brody had become president and remained loyal to his former captors: U.S. intelligence learns of a foreign terrorist plot that would exploit a key vulnerability in domestic defenses; Congress acts swiftly to pass a bill appropriating funds for an emergency fix; but the President, secretly acting on behalf of the terrorists, allows the bill to sit on his desk for nine days, and then vetoes it, during which time the devastating terrorist attack occurs. Isn't this a pretty clear case of Presidential treason via the veto power?

Note that the two examples I've given--treason and bribery--are the two expressly enumerated grounds for impeachment of the President, and both are crimes that can be committed through the exercise of the veto power. There is nothing in the text or structure of the Constitution that would lead to a different result for the other, unnamed high crimes and misdemeanors for which a president can be impeached and subsequently prosecuted. Nor is there anything in the general principle of separation of powers that would lead to the conclusion that treason and bribery are unique in this regard.

Is it possible that a court might nonetheless construe the veto power of the Texas governor in the maximalist fashion I have criticized? Sure. And it's also possible that one or more of the Texas charges will be held inapplicable to Perry's alleged conduct on purely statutory grounds, or that he might be acquitted on the facts. But nothing I've seen thus far from Professor Volokh or anyone else supports the broad claim that a purely discretionary power to veto on policy grounds implies immunity from criminal prosecution for the exercise of the veto power on corrupt grounds.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 22 Aug 2014 15:00
-- Posted by Neil H. Buchanan

My Dorf on Law post earlier this week discussed two recent entrants in the teacher-bashing sweepstakes: a billionaire-backed group that is bringing suit in New York State to end tenure for schoolteachers, and an op-ed by New York Times columnist Frank Bruni.  Bruni endorsed a Colorado law that can end even experienced teachers' careers, if student test scores do not increase for two consecutive years. Bruni's op-ed was almost endearing in its inanity, uncritically buying into the idea that the only way to improve the educational system is to give heroic administrators the ability to inspire their troops (and to sack those who are not willing to "walk through fire together").

The broader story being spun by the anti-tenure groups is that schools are bad because teachers have too much job security. Falsely claiming that tenure makes it impossible (or nearly impossible) to fire ineffective teachers, this crowd makes it seem as if public school teachers have such cushy, safe jobs that they do not bother actually to teach their students. Combining that falsehood with anti-union bias, the attack on tenure has become another opportunity for nominal liberals like Bruni to "hippie punch" one of the key elements of the Democratic base. (Bruni's colleague Nicholas Kristof has also gotten into the anti-educator game, both at the college level and in attacking tenured schoolteachers.)

This story is then wrapped in a nonsensical tale about how some brave Democrats have dared to "defy" the teachers' unions, which are supposedly the real barrier to reform. Needless to say, Barack Obama's triangulators gleefully join in the attacks on tenure, making it a bit difficult to see what the Brave Union Defiers are actually risking by attacking tenure.

Every aspect of the anti-tenure story is wrong. Here, I want to discuss what tenure really means, the incentives that it creates, and the choice between abolition, reform, and standing pat.

The central lie of the anti-tenure campaign is that tenure "guarantees lifetime employment," or similarly extreme claims. The reality is that tenure is a system that requires for-cause firing, rather than at-will employment. That is, the collective bargaining agreement between the school district and its teachers requires due process and clearly articulated reasons for firing a supposedly ineffective teacher. "She isn't walking through fire with us" is not good enough. There are internal procedures that allow the district and the teacher to resolve issues outside of courts of law, and the teachers are allowed to defend themselves.

There are, of course, a million possible variations on a tenure system. Changes to such systems can be negotiated, and there is no single right way to protect teachers from arbitrary firing.   Suggested changes, including some thoughtful comments on my post this last Tuesday, can run the gamut, and nothing I say here should be taken to mean that I reject any and all changes to how tenure is defined or administered. But two central points must be acknowledged: (1) Teachers can be, and are, dismissed for ineffectiveness under current tenure systems, and (2) The anti-tenure forces are not talking about reforming tenure, but ending it. The actual reformers, in other words, have been the teachers' unions, who have responded to the attacks on tenure by making adjustments on an ongoing basis.

Even so, it remains true that a teacher with tenure is harder to fire than a teacher without tenure. That is the point of tenure. Tenure exists for a number of reasons, only one of which I mentioned in my Tuesday post. In addition to that essential point -- that tenure protects teachers from being arbitrarily fired for making politically unpopular statements (e.g., saying the Karl Marx was not wrong about everything) -- teachers also need to be protected when they blow the whistle on misconduct in their own schools.

Most importantly, teachers need to be able to say no to parents. When I was an untenured economics professor, I received an angry phone call from the parent of a student who "doesn't get C's," but who had earned a C+ on one of my exams. Fortunately for me, when the parent took her complaint to the department chair, he refused to put pressure on me to change the grade; but if he had not liked me, he could have used that moment to drop me from the department. At the K-12 level no less than in college, there are all kinds of situations in which a teacher without job protection will be pressured to do something inappropriate, in order to save her job. To tie this issue to my recent post on college athletics, consider the consequence for an untenured teacher or professor who flunks a popular sports star and thus keeps him off the playing field.

The objection to all of this, however, is that tenure is over-inclusive, protecting not just teachers who need and deserve protection but also those who are free-riding on a system that allows them to do next to nothing and thus harm their students. This idea, which has more than a whiff of rational-actor theorizing common among orthodox economists, assumes that people are work-minimizers who are looking for every possible way to get away with shirking on the job. One need not believe that every teacher is a selfless saint to see that the reality is far from what the anti-tenure people describe. Teachers are well-educated and, at best, paid a middle-class salary, and they deal with the results of family and social dysfunction, along with all of the standard behavioral issues that children present.  That more of them do not quit outright is a miracle.

Moreover, if we insist on seeing teachers as fallible humans who might succumb to the temptations to abuse the system, why would we assume that administrators, parents, school boards, politicians, and the kids themselves are not similarly afflicted with imperfect moral codes? It is bad enough that we allow people to be fired from most jobs (office worker, nurse's aide, fast-food employee) at the whim of supervisors. But if there is any area of the economy where we can have somewhat more trust in the workers, along with good reason to think that the supervisors are going to bend to stronger political and personal pressures, it is in the schools.

In short, if we stop pretending that one or both sides of the teacher/administrator divide is perfect, we find that teaching is a profession in which extra job protections are uniquely necessary. Like any imperfect system, teacher tenure will have imperfect results. In reality, therefore, a healthy political environment would expect and allow tenure standards to evolve over time. In the context of our unhealthy political environment, by contrast, we have to take sides.

And it is easy to know which side to take. The spokeswoman for the anti-tenure group in NYS (whom I discussed in Tuesday's post) led off her appearance on The Colbert Report by saying: "91 percent of teachers around the state of New York are rated either effective or highly effective, and yet 31 percent of our kids are reading, writing or doing math at grade level." (And 100% of baseball Hall of Famers are deemed worthy of the Hall of Fame, yet the best of them failed at the plate two-thirds of the time.) This kind of simplistic nonsense should scare anyone who thinks that the anti-tenure crusaders are not ultimately blaming the teachers.

The fact is that, even looking at the inevitably imperfect tenure systems that are possible in real life, there is simply no established connection between teacher tenure and student outcomes. Wealthy suburbs around the country rely on tenured teachers to send prepare their kids for elite colleges. Public school systems in poor areas that have experimented with non-tenured faculty have not shown improvements in any measurable student outcomes.  So if the choice, because of political polarization, ends up being either to abolish tenure or to keep it as is, we should keep it.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 21 Aug 2014 13:51
by Michael Dorf

A recent New Yorker essay by Malcolm Gladwell provides a potentially interesting way to think about the events in Ferguson. Gladwell's essay was published just before the eruption in Ferguson, so he does not discuss it. A Washington Post op-ed by Allyssa Rosenberg applies the lessons Gladwell draws in his essay to Ferguson and the larger problem of the racialization of poverty and violence, but mostly by accepting Gladwell's claims. Here, after briefly describing Gladwell's claims, I want to raise some questions about his analysis.

Gladwell's essay centers around a 1972 non-fiction book by Francis Ianni, A Family Business: Kinship and Social Control in Organized Crime, that was the basis for The Godfather and many subsequent popular fictional portrayals of organized crime in general and the Italian mafia in particular.

The Godfather films suggest that mafia life is a trap: "Just when I thought I was out," laments Al Pacino as Michael Corleone in Godfather III, "they pull me back in." But the lesson of Ianni's study, says Gladwell, is more nearly the opposite. People who turn to organized crime do not reject the bourgeois values of the surrounding society. They embrace those values but, seeing few if any opportunities to achieve a good life for themselves and their families legitimately, they turn to crime. Over time, however, the wealth accumulated through organized crime enables crime families to go legit. Thus the grandsons and granddaughters of a mafia don end up as wholly respectable doctors, lawyers, and accountants. Organized crime, Gladwell says, quoting sociologist James O'Kane, is a "crooked ladder" to prosperity and respectability.

Gladwell also notes that by the early 1970s, the empires built by Italian-American crime families were increasingly reliant on African American and Latino foot soldiers. Based on Ianni's study, one would expect that, just as organized crime had served as a crooked ladder to respectability for earlier generations of Irish, then Jewish, then Italian mobsters, so it should work the same way for African Americans. (Gladwell does not discuss Latinos beyond his initial observation.) And yet, it obviously has not.

Why not? Curiously, Gladwell does not even mention racism, but let's put that rather glaring omission aside. Gladwell discusses modern urban life for African American criminals by reference to Alice Goffman’s new book, On the Run: Fugitive Life in an American City, juxtaposing the portrait Goffman paints with the one Ianni painted. Gladwell argues that in earlier times, organized crime worked as a gateway to legitimate business because corrupt police and generally lax enforcement of the criminal law enabled the accumulation of capital and the development of a business ethic within organized crime circles. By contrast, African Americans had the bad luck to move into the organized crime niche just as police corruption was being dramatically reduced and criminal law enforcement was being ramped up.

There is something that's clearly right about this narrative. Young African American men are arrested and incarcerated at alarmingly high rates; and the increasingly for-profit criminal justice system can convert even the most minor brush with the law (such as a traffic offense) into a source of insurmountable debt. So yes, the second half of Gladwell's hypothesis has much to be said for it, and that something dovetails with the expressions of outrage we see on the streets of Ferguson. The early discussion of Ferguson focused on the militarization of police, which is a problem, but a relatively small one in comparison to the core issue: Over-criminalization and excessive punishment in general, and their disproportionate impact on the African American community in particular, are extremely serious problems.

But that has little to do with organized crime. Does Gladwell really mean to imply that the best solution to the problems that ail urban America is for the police to back off and allow the Bloods, Crips, MS-13s, and other gangs to run rampant, in the expectation that, within a couple of generations, middle-class respectability will take hold? If one considers the sorts of places in which this approach has been more or less unintentionally applied--e.g., Sicily and Central America--one finds not respectability but disorder and despair.

Both in this recent essay and more generally, Gladwell is such a good writer that he makes it easy for the reader to get caught up in the arc of his narrative and end up at his counterintuitive conclusion. But there is a reason why counterintuitive conclusions are counterintuitive: often they're wrong.

One of Gladwell's key anecdotes is instructive. He describes the practices of Salvatore Avellino, who oversaw the Long Island garbage disposal cartel in the 1970s and 1980s. Gladwell praises Avellino's business ethics. Instead of keeping the 50% premium in rents that the cartel was able to extract from its customers, or giving most of that money to the Lucchese and Gambino crime families, Avellino ensured that most of the profits went to the cartel members, the family-owned trash disposal businesses that operated in the respective territories allocated to them. Gladwell writes that although Avellino would use violence and intimidation against those who did not play by his rules, "when it came to his [cartel] members, Avellino acted not as a predator but as a benefactor."

And there you have the non sequitur that is at the heart of Gladwell's analysis. Organized crime may indeed be a crooked ladder to respectability for the participants in organized crime or their descendants. But for the rest of the people in the community--those who are already trying to live and work by the rules of the larger society--organized crime is an impediment to achieving a comfortable existence. To the businesses and individuals who paid a 50% premium above what they would have paid for trash disposal in a competitive market, Avellino's violence-backed cartel most certainly was a predator. Likewise, the small business owners trying to make an honest living hardly benefit from having to pay protection money to the mob, even though the profits are shared fairly among the mobsters.

Here, it seems to me, popular fiction gets it about right. Tony Soprano's extraction of resources from the communities his minions oversaw paid for Meadow's tuition at Columbia, but it also prevented some of the sons and daughters of the business owners from whom he stole from being able to afford to go to Rutgers.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Wednesday, 20 Aug 2014 21:01
by Michael Dorf

The Supreme Court order granting a stay of the ruling of the 4th Circuit regarding Virginia's same-sex marriage ban makes it nearly certain that the Court will grant cert to decide the constitutionality of laws banning same-sex marriage in time to be decided during the upcoming (October 2014) Term.

No one can be surprised by this order, given the similar SCOTUS disposition in the Utah case back in January. But the Utah case was different in an important respect: The underlying merits decision was a ruling of the district court; thus, one could understand the SCOTUS grant of a stay there as merely based on the view that the status quo ante ought to be preserved so that the appeals court could hear the case without risking putting marriages in limbo. (Of course, there was enough of a delay between the district court ruling and the time when the Supreme Court stay was granted, that limbo wasn't avoided anyway, but that's a different point.) By contrast, the SCOTUS order in the Virginia case comes after an appeals court disposition, and is in effect "pending the timely filing and disposition of" a cert petition. If the Court denies cert, that will mean the stay is dissolved and same-sex marriage will be legal in Virginia (and the other states in the 4th Circuit). But I can't see the Court doing that unless the Justices are certain that they will eventually affirm a right to same-sex marriage. And if they were certain of that, then they wouldn't have granted the stays in either the Utah or Virginia cases, because the limbo problem only arises if there is a serious prospect that marriages will be found legal and then later made illegal.

So I think the likely--indeed the overwhelmingly likely--outcome of a cert petition in either the Virginia case or some other case to reach the Court soon will be a grant of cert. And notwithstanding my analysis above, I think it quite likely that the Court will then find a right to SSM. That's because the likelihood of a 5-4 vote in the Court is enough to support the conclusion that the issue is close in one sense, but I have a very hard time counting beyond four votes against a right to SSM on this Court.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Wednesday, 20 Aug 2014 12:00
by Sherry F. Colb

In my Verdict column for this week, I discuss a decision by the U.S. Court of Appeals for the Fifth Circuit holding a Mississippi abortion law unconstitutional, as applied.  The law at issue, like an increasing number of state laws, requires that doctors who provide abortions must have admitting privileges at a local hospital.  The doctors at the one existing abortion clinic in Mississippi attempted to acquire admitting privileges at seven local hospitals, but all requests were denied, expressly because of the doctors' participation in abortion services. 

The Fifth Circuit held that the law in question, given the circumstances, effectively eliminated abortion services from the state of Mississippi and thereby imposed an undue burden on the right to terminate a pregnancy.  My column analyzes the unusually fact-specific nature of the ruling and why it needed to be that way.

In this post, I want to turn from the subject of abortion to the subject of animal rights.  What is the connection, you ask?  One connection is that Mike Dorf and I are currently working on a book -- tentatively titled Beating Hearts -- about the animal rights and anti-abortion movements.  The book addresses substantive arguments that find expression in both pro-animal-rights and pro-fetal-rights camps as well as some of the philosophical and strategic challenges that similarly confront the two movements.  One strategic challenge is whether to embrace legislative reforms that regulate the targeted behavior (whether animal exploitation or abortion) and thereby potentially imply that the activity is not itself inherently objectionable, if proposed guidelines are merely followed.

In the context of animal rights, an example of such legislative reform would be a law that provided that laying hens must be kept in a barn rather than in a cage.  A proponent of animal rights -- one who believes that breeding birds who produce  more than fifteen times the normal number of eggs annually (250-300 versus 10-15 in a closely related non-domesticated bird) in order to take their eggs away and ultimately to kill them when they stop laying those eggs (while killing all of the male "layers" because they produce no eggs) amounts to unjustified violence and cruelty to animals.

When someone who believes in animal rights advocates for a different sort of "housing" for such birds, the advocate could be misunderstood by the public as condoning the farming of birds, so long as they are kept in a barn while they are being exploited and prior to being slaughtered, rather than in cages. The advocate might respond that less torture is better than more torture and that the difference is what motivates the advocacy.  Opponents, in turn, could reply that the public responds to such "reforms" by believing (without foundation) that buying eggs is now justified and that "even the animal rights people" at [name your organization] think so."  Furthermore, as investigations of "cage free" facilities and other "high welfare" operations reveal, the realities of "humane" farming are routinely no better than the "factory" alternative.

In the abortion context, a regulation might say that "abortion is legal if the doctor performing the procedure has admitting privileges at a local hospital."  Such a regulation does not prohibit abortion and might therefore lead an observer to conclude that abortion is fine so long as the providers have some level of access to local hospitals.  A supporter of this regulation might respond that such regulations are quite effective at reducing the number of abortions women have, because many hospitals refuse to grant admitting privileges to doctors who perform the procedure, and fetal lives are therefore spared.  As a matter of messaging, moreover, pro-life organizations can and do dispel any doubts about their bottom-line position on abortion by saying such things as "we oppose all abortion and believe that abortion is murder from the moment of conception."

The realities on the ground are quite different for people who oppose animal exploitation from what they are for people who oppose abortion, as Mike and I explore in our book, so one might believe that strategies should properly differ for the two movements.

Another sort of issue that arises in both the animal rights and pro-life movements is what sorts of arguments are appropriate and convincing.  In the case of abortion, some of the arguments made about late-term abortions might undermine the case for prohibiting early abortion.  Emphasizing the horror that accompanies the dismemberment of a 26-week-old fetus that already appears to be sentient may, by negative implication, reduce moral discomfort around earlier abortions of plainly insensate embryos and fetuses. For this reason, some people in the pro-life movement find partial-birth abortion legislation pointless and counterproductive to their mission.

In the animal rights movement, one of the points we make in favor of veganism is that by consuming the products of animal exploitation and slaughter, we solicit additional acts of violence against animals, thereby bringing about physical and emotional agony to innocent sentient beings.  Animal rights advocates typically object both to the infliction of suffering on animals (for the purpose of using those animals) and to the killing of animals (for the same purpose -- or because keeping them alive for further exploitation is no longer economically sound).  

Some people outside the animal rights movement agree that inflicting suffering on animals is wrong but challenge the notion that killing animals in order to exploit them is necessarily morally objectionable. Their premise is that if one could kill an animal for consumption without inflicting any distress or pain upon that animal, then the killing would not violate the interests of the animal. This is actually a position held by Peter Singer, the Princeton philosopher who authored Animal Liberation.  Singer rejects the view that killing farmed animals is wrong, provided that the killing is truly painless.

In an opinion piece in the New York Times, one writer suggests, in line with this thinking, that consuming animals is morally distinct from atrocities against humans, because animals could -- at least in theory -- be raised and slaughtered without suffering any pain or distress.  The writer, Rhys Southan, acknowledges that in the real world of animal farming -- even the "high welfare" sector -- animals actually suffer a great deal, in part because babies are taken from their mothers (as is inherent in the dairy industry) and in part because animals are mutilated (branded, castrated, etc.) without anasthesia as part of "raising" them for slaughter. There is far more suffering implicated in creating (and therefore in consuming) animal products than Southan articulates, but even he effectively concedes that "pain free" animal exploitation (and therefore consumption) is, for the moment, a fantasy.

In his column, Southan cites Epicurus for the proposition that death is not a harm to the one who dies, because once someone is dead, that individual no longer exists to experience the putative harm.  As Southan undoubtedly knows, though, Epicurus makes this point about humans.  Mike and I address the argument that death is not a harm and that painless killing is therefore morally permissible in our book, and I discuss it as well in one of the chapters of Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, a chapter entitled "What About Plants?".  For purposes of the Times opinion piece, however, suffice it to say that if Southan embraces Epicurus's view and infers permission to "painlessly" slaughter animals, then he should -- by his own logic -- infer permission to "painlessly" slaughter humans as well.

For now, however, let me leave this point behind.  I will, for purposes of argument, assume a premise that  I in fact reject -- that painlessly killing (an animal or a human) is morally unobjectionable. If this is true, what follows from it?  It follows from this premise (one that I, just to be clear, find offensive and utterly reject) that if one were to consume the corpse of a slaughtered animal (for example, a puppy or a calf) who had been killed without experiencing any anxiety or pain, one would be doing nothing wrong.  Likewise, as Southan implies at the end of his piece, one could also consume (or create gloves out of) the remains of a slaughtered human without committing any moral wrong, so long as the human never saw it coming and suffered no pain or anxiety.

Southan asserts that in theory, one could raise and slaughter animals for food without causing the animals pain or distress.  This is true, just as it is equally true that one, in theory, could raise and slaughter humans for food without causing the humans pain or distress.  This would especially be true in the case of a human who is either too young to understand complex human communication (through which she might learn of her fate) or a human who suffers from intellectual disabilities that prevent such understanding in adulthood.  Under Southan's argument, then, there would be nothing wrong with murdering a happy, intellectually disabled human being, so long as one made sure to sneak up on the person in the middle of the night and cause no suffering in the process.

After accepting this (dubious) premise, what follows?  Though Southan does not say so explicitly, he strongly implies (in part by identifying himself as a "former vegan" in his byline) that what follows is that it is morally unobjectionable to consume animal products.  Why does that follow?  Because even though animals who are raised and slaughtered for consumption in fact suffer tremendous pain, anxiety, and loss during their short lives, as Southan concedes, one could imagine an animal being slaughtered for consumption without the corresponding suffering.  In other words, the fact that one can imagine painless exploitation and slaughter is -- on Southan's theory -- enough to make it acceptable to consume the products of painful exploitation and slaughter.  Got that?

I would not spend so much time on this rather bizarre argument if this were the first time I encountered it. I would then conclude that Southan is simply confused and move on to other, better thought out, writings. The problem is that I have heard this line of argument before.  

In one context, a woman who calls herself an "ethical vegetarian" and is otherwise extremely intelligent insisted to me that consuming eggs is morally acceptable (and totally different from consuming flesh) because the production of eggs need not involve any killing.  (By contrast to Rhys Southan, this woman does not appear to regard killing as harmless).  I expressed disagreement with her claim, because in the actual world we inhabit, the production of eggs always involves killing.  The male layer-breed chicks are, in fact, killed shortly after hatching, because they do not serve the purpose of an egg-laying operation, since they cannot lay eggs.  

The woman responded that one could, in theory, take care of all of the male "layers" and permit them to live out their lives rather than killing them.  I pointed out that such a practice would be economically ruinous for anyone hoping to earn rather than to lose money selling eggs and that, given the number of male layer chicks killed every year (260 million in the U.S. alone), there would not be enough space on planet earth to allow them to live out their lives other than in horrendously crowded conditions.  This might be why, I suggested, there are exactly zero egg-laying operations in which the males are permitted to live out their lives.  

When people purchase "back yard" hens, the curiously absent males will have all been thrown into a meat grinder or other such device to make fertilizer the day on which they hatched.  Buying eggs (or egg-laying hens for one's backyard) is inextricably tied to that practice.

What I said did not seem to phase the "ethical vegetarian," however, because in theory, one could imagine consuming eggs without killing any male layers.  That is apparently enough, from her perspective, to justify consuming eggs in the real world, where male layers are always killed as part of the process.  

Ordinarily, as I said, I would not feel the need to respond to such an argument, any more than I would feel the need to respond to the argument "but I had a dream in which an angel said that I should eat eggs."  However, because I have now heard the argument twice, I will make an attempt to say something in response, in the hope that people who believe it has some plausibility to it might think twice the next time they encounter it.

Let us take a context outside of the animal rights (and abortion) areas, where controversy is less likely.  Say I learn that all chairs coming from the Sandusky Chair Company were made by child slaves who were beaten and forced to work for twenty hour stretches.  I happen to like Sandusky chairs, though, because they are very comfortable.  

It is undoubtedly true that chairs could, in theory, be made without violently abusing enslaved children.  In fact, not only could they be made that way but some chairs actually are made without such violence.  Does this fact mean that I can go ahead and buy Sandusky chairs with a clear conscience?  In other words, does the fact that one could in theory create a chair without beating child slaves translate into moral permission for me to go ahead and pay the Sandusky Chair Company for chairs that they do create by beating child slaves?

Some purchasers of Sandusky chairs might be ignorant about what is involved in creating those chairs and might therefore be innocent of the violence and cruelty that they are paying for.  This is true, but once the reality is brought to their attention, they are no longer ignorant.  And in the case of animal agriculture, it is becoming increasingly difficult to remain completely ignorant about the profound violence involved in creating every type of animal product, including (especially) products like chickens' eggs and cows' milk, which visit a special level of hell on the females of those species.  And the "ethical vegetarian" of whom I spoke earlier is herself quite knowledgeable about the real world of eggs and dairy, even those that supply supposedly "humane and sustainable" farmers' markets.

Ultimately, then, I must conclude that the "it could be done ethically in theory" argument is not really an argument at all but simply a (rather transparent) rationalization.  And I say this as someone who takes seriously the many common objections to veganism in Mind If Order the Cheeseburger? And Other Questions People Ask Vegans.  I would say that if something could be ethical in theory but is in fact unethical in practice, then that means that one is under an obligation, absent some truly compelling need, to avoid supporting that something unless and until the fantasy/theory becomes a reality.  Though imagination can yield many wonderful things, it cannot justify behavior that is, in reality, unjustifiable.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Tuesday, 19 Aug 2014 14:59
-- Posted by Neil H. Buchanan

A few weeks ago, Stephen Colbert interviewed someone named Campbell Brown.  I had never heard of Brown, but it turns out that she was formerly one of the interchangeable talking heads on those network morning shows, before moving on briefly to host her own low-rated show on CNN (which airs nothing but low-rated shows).  Brown appeared on Colbert to promote her new union-busting group (the funders of which she insistently refuses to name), putting a happy face on an anti-teacher-tenure lawsuit that her group has filed in New York State.

Brown probably assumed that she would get an easy ride on Colbert, expecting him to play the clown while she recited her talking points and smiled demurely.  Instead, Colbert proved that he has actually become an excellent interviewer, asking pointed questions and making trenchant comments that left Brown flat-footed.  (For example, when she tried to hide behind feel-good assertions that everything she is doing is "for the children," and some people in the audience applauded, Colbert said, " They’re going to clap because you’re playing the 'good for child' card.")

In some ways, the most amazing thing about the interview was the end, when Brown said, "I respect that," in describing her funders' refusal to be named publicly.   Colbert visibly stopped himself from attacking Brown directly, and instead said, "Well, I respect … you. I was trying to figure out who I will respect at this table, and there was no one left but you."  Ouch.  He then smiled and ended the interview. It was fascinating TV, available here.

Of course, Brown is merely one cog in a machine that is trying to end tenure for school teachers.  The latest output from that machine was an op-ed in today's New York Times by Frank Bruni, "The Trouble With Tenure."  Bruni completely buys into the idea that teacher tenure's only role is to prevent teachers from being fired for incompetence, not even bothering to give lip service to the idea that tenure might have some positive effects, like, say, protecting teachers from being fired for expressing unpopular political views. (By contrast, here is Colbert: "What if there’s someplace where the parents don’t want certain things taught to the kids? ‘Cause I’d love my kids not to be taught evolution.")

Bruni builds his story around a Democrat who helped pass a "2010 law that essentially abolished tenure in Colorado."  Making the story about a Democrat is important strategic choice for Bruni, who assures his readers that there are now "many Democrats defying teachers unions and joining the movement." Yes, jumping on a heavily-funded gravy train that attacks the beleaguered teachers union is now an act of grit and defiance!

On the substance, Bruni also accepts without question that principals and administrators are the heroes who could save the day, but that "traditional tenure deprived principals of the team-building discretion they needed."  Quoting the politician who sponsored the anti-tenure law in Colorado, Bruni writes: " 'Do you have people who all share the same vision and are willing to walk through the fire together?' he said. Principals with control over that coax better outcomes from students, he said."  This is beyond preposterous.  We knew that the Times op-ed page was filled with people who have no known expertise, but I thought that at least these guys were capable of committing journalism.  Maybe just a little bit of skepticism would have been in order.

Bruni allows that "[t]here are perils to the current tenure talk: that it fails to address the intense strains on many teachers; that it lays too much fault on their doorsteps, distracting people from other necessary reforms." But this stipulation only arrives after he allows his subject to re-frame the debate: "[I]t’s not the kids who are the problem! It’s the system."  So, when someone says that teachers are wrongly blamed for the effects of poverty, family breakdown, and so on, that apparently amounts to saying that "the kids are the problem."  And teachers thus do not deserve "job protections that most Americans can only fantasize about."  Right.  Why protect one of the few (and most important) job protections remaining in the U.S., given that we have allowed too many other people to become easy to fire?

Perhaps the most notable aspect of the column, however, is Bruni's description of the actual Colorado law that he admires so much: "To earn what is now called 'non-probationary status,' a new teacher must demonstrate student progress three years in a row, and any teacher whose students show no progress for two consecutive years loses his or her job protection."  This means that a brand-new teacher's (minimal) job protection is determined by "student progress" (presumably meaning increasing scores on standardized tests), and even experienced teachers can be canned if their students scores are unchanged for two years in a row.  Even if one thinks that there is some broad statistical connection between teacher "quality" and student "progress," that connection cannot possibly be so tight that even the best teachers could be confident that they would not be dealt a bad hand for two years in a row.

Yet Bruni wraps himself in the flag: "We need to pay good teachers much more. We need to wrap the great ones in the highest esteem. But we also need to separate the good and the great from the bad."  Great.  How are we going to do that?  Once everyone is "defying" the teachers unions, where is the pressure to pay teachers more going to come from?  Are the superman-principals who are getting people to "walk through fire together" never going to make decisions on illegitimate bases?

If we want to have a warts-and-all discussion about tenure, then we have to make the comparison meaningful, and think about the many imperfections in a system where teachers can be fired at will.  It is easy to describe an Eden in which enlightened administrators gallantly lead their properly motivated troops into battle.  But if people were that virtuous, then they would not succumb to the supposed evils of tenure in the first place.  Bruni is essentially saying, "Real-life tenure leads to less than perfect results, but fantasy-world non-tenure can be wonderful."

No one has yet designed an alternative to tenure (and unionized teachers) that actually makes matters better, for teachers and students, in a way that could be applied generally.  Until then, all this noise from people like Bruni is an excuse to sound concerned about children, while taking the easy way out and blaming the only group of people who are actually trying to deal with kids as they exist.  Teachers are not perfect, but continually attacking them only makes matters worse.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 18 Aug 2014 11:00
by Michael Dorf

I begin with a disclaimer: My judgment regarding Rick Perry is questionable. When he first announced his candidacy for the 2012 Republican Presidential nomination, I thought he was a lock to get it. But in my defense, that was before I had any real exposure to Perry, as opposed to seeing his paper credentials. By early January 2012 I did recognize that Perry's main obstacle to obtaining the GOP nomination was what I called his "difficulty sounding like an adult human with the capacity for speech and thought." Until Friday, it looked as though Perry and his advisors had concluded that he had overcome that obstacle for 2016, probably counting on some combination of popular amnesia, the magical smarts-conferring power of glasses, and the revelation that Perry's dreadful performance in the 2012 campaign may have been a product of health and medication issues. But now this.

Governor Perry's defense team is at least initially taking the position that Perry has done nothing wrong because he was simply exercising one of the powers that the Texas Constitution vests in him as governor, namely vetoing legislation, in this instance the entire budget of the public corruption unit overseen by the Travis County District Attorney. This strikes me as a very weak argument, at least if not further qualified.

In numerous ways and circumstances, the law confers power on people but restricts--sometimes with criminal penalties--the means by, and purposes for which, they may permissibly exercise that power. Governors and other state officials have the power to make personnel decisions. Some of these decisions are considered discretionary, in the sense that they are not subject to review by others who think that they reflect a poor policy or personal judgment. Nonetheless, such decisions are not wholly unconstrained by law. For example, a public official who fired or refused to hire someone based on race would thereby violate the Constitution. A public official who made a personnel decision based on a bribe would thereby commit a crime.

All of this seems perfectly routine and must be obvious to special prosecutor Michael McCrum. He is not charging Perry with making a poor or even foolish decision by vetoing the public corruption unit's budget. The indictment charges that Perry used what would otherwise be a perfectly legal tool for an illegal purpose, and thus committed unlawful acts. Once one thinks this through, one realizes that the defense Perry has thus far publicly mounted is inadequate. It would be as though someone who was charged with committing murder by deliberately running over his victim with his car protested: "But I have a license to operate a motor vehicle."

None of the foregoing is to say that Perry might not be able to mount a more successful defense. If I were working on his defense team (a job for which I am not volunteering!), I would make an argument that goes something like this:

Governor Perry concluded that Rosemary Lehmberg's disgraceful and criminal conduct leading to her conviction for DWI, which included an attempt to abuse her office by claiming to be above the law, rendered her completely unfit to continue to serve as Travis County DA for any period of time, especially given that office's role in ensuring the rectitude of other government officials. She therefore had an obligation to the people of Travis County and of Texas to resign. When she failed to do so, Governor Perry used all of his lawful means to induce her to step down.

Whether that is a successful defense seems to me to depend on a question of Texas law and some pretty murky questions of fact. The question of Texas law is whether one can be guilty of abusing one's official capacity and/or attempting to coerce a public servant (the charges in the indictment) even if one is trying to coerce someone to do something that is in the public interest. I don't know the answer to that question under Texas law but I suspect that the answer is yes. Otherwise, one opens up an enormous loophole for people to violate the law based on their claimed subjectively pure intentions. Consider, e.g., Oliver North's no-doubt sincere view that he was serving the public interest in defeating communism in central America.

Even if ultimately good intentions are a defense, there remain questions about Rick Perry's intentions, which will be difficult to prove one way or the other. Viewed from a distance, it looks like Perry saw an opportunity to replace an unfit Democratic DA whose office was investigating his conduct with a compliant crony who would kill or slow-walk the investigation into Perry's dealings with the Cancer Prevention and Research Institute of Texas. Are those bad intentions? Does the answer depend on whether Perry would have tried to force Lehmberg out even if she were perfectly qualified to continue? If it does, then Perry would seem to have a good defense, because he did not attempt to force out Lehmberg before her DWI incident.

My analysis thus contains a silver lining for Perry. It probably counts as an improvement in his general standing that the public is now wondering what was going on in his mind, rather than whether anything was.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Sunday, 17 Aug 2014 04:13
by Michael Dorf

This is just a quick follow-up to my Verdict column and two prior posts on the Salaita affair (here and here).

1) As Brian Leiter notes, there is a move afoot to boycott the University of Illinois in response to its un-hiring of Salaita. I dislike academic boycotts generally, and I think it especially odd to boycott an academic institution on free speech grounds. Better, it seems to me, to try to persuade (rather than coerce) the University to correct its error.

2) Speaking of persuasion, the letter I noted in Friday's blog post is now publicly available.

3) While disclaiming any expertise with respect to the First Amendment issues in the Salaita case, on Concurring Opinions, Dave Hoffman disagrees with my promissory estoppel analysis. After saying some nice things about me personally (which I hereby reciprocate about him), he attempts to pull rank, noting how he's a contracts teacher and scholar, whereas I'm not. That's true, but I still think that I am right and he is wrong. Let's look at three key points.

a) Hoffman says that courts often deny promissory estoppel relief to unsympathetic plaintiffs. He then offers this: "My gut feeling is that unlike many liberal law professors, who increasingly treat Israel as a pariah, and who think that there’s 'clearly only one defensible side to take on this case,' elected state court judges in Illinois might not think that justice requires enforcement of this non-contract claim."

First of all, if a case were brought in court, it would likely be brought in federal court before an appointed judge, with the federal First Amendment anchor claim providing the basis for supplemental jurisdiction over the state law claims.

Second, I don't know how many times I have to say it for people to get it, but I'll say it again: Sympathy for Salaita's position should turn entirely on the fact that he was apparently punished for the expression of views. He is or should be "sympathetic" in the sense that other free speech plaintiffs are sympathetic, that is to say, regardless of the content of his views. I don't know who Hoffman thinks are the "liberal law professors who increasingly treat Israel as a pariah are," but I'm certainly not one of them, nor are most of the liberal law professors with whom I've spoken. I said in the column and I'll say again here: I disagree with the substance of Salaita's views and the tone he used (on Twitter) to express them. That's simply not the point. And any judge who decides case based on his or her sympathy or lack of sympathy for the content of Salaita's views is himself or herself violating the First Amendment.

[**Update**: I originally failed to notice that Hoffman's statement regarding liberal law professors contained a link to a post by Brian Leiter, in which Leiter says "there’s clearly only one defensible side to take on this case if you support academic freedom, tenure and freedom of speech" (emphasis added by me). But Hoffman leaves out the portion of that quotation that I have placed in italics. With that omission, and by placing Leiter's statement just after Hoffman's claim that "many liberal law professors . . . increasingly treat Israel as a pariah," Hoffman (probably unintentionally) creates the misleading impression that liberal law professors who think the free speech and academic freedom issues are one-sided also necessarily think that Israel should be treated as a pariah. At least that's how I read it, even after I noticed the link.]

b) Hoffman's main point about promissory estoppel is that a promise can only induce reliance if the promissor has the authority to make it, and as the letter to Salaita makes clear, the Interim Dean making the offer did not have that ultimate authority: The appointment was subject to board of trustees approval.

First, at the very least, the Interim Dean's letter makes clear the intent to present Salaita's case to the board, and surely the Interim Dean had the authority to do that. Thus, to the extent that the core complaint is that the university officials reneged on their promise to present Salaita's case to the board, Hoffman's point is irrelevant. There is the breach of a promise.

Second, as Hoffman notes, an agent's promise can induce reliance when the principal knew about it. The offer to Salaita was made and accepted in early October 2013. There then followed a long period when Salaita was quite publicly identified with the University of Illinois. It's possible that the board was unaware of this, but it seems more likely that the board was aware. Moreover, given the apparently standard University of Illinois practice of faculty beginning teaching and working for the university before board approval of their appointments, the board had to be aware that prospective faculty would rely on board approval as a rubber stamp.

c) Hoffman also says that promissory estoppel is a rare bird, citing his expertise and that of my colleague Bob Hillman. As it happens, I got the idea to write the promissory estoppel piece from a paper that Hillman presented in a faculty workshop a couple of days before I wrote the column. I then researched Illinois law and discovered the 2009 case I cited (Newton Tractor Sales Inc. v. Kubota Tractor Corp.), which Hoffman cites as well. He then writes: "Notably, Newton recognized that there [is] a live cause of action for PE in Illinois, but the case strongly suggests that the issue had been in doubt — as of 2009!"

Strongly suggests that the issue was in doubt? Really? Some intermediate appeals courts in Illinois had questioned the availability of a promissory estoppel claim, but in fact, Newton said that those courts were dead wrong. Far from suggesting that the issue was in doubt, the Illinois Supreme Court cited multiple cases going back to at least 1879 showing "that promissory estoppel has previously been recognized as a cause of action" in Illinois. Not that the court was in 2009 first recognizing the cause of action, but that the cause of action was very well established.

Despite this very long line of Illinois precedents, Hoffman says that he, as a contracts scholar, knows better. Apparently, all of the people and firms bringing the promissory estoppel claims that ended up in the official reports were just dupes of silly lawyers who didn't really understand that promissory estoppel claims are usually hopeless, a mere plaything for academics.

Does all of this mean that Salaita would necessarily win a promissory estoppel claim? No, nor did I say so before. But nothing in Hoffman's analysis leads me to think that my initial assessment was wrong. It seems to me that Hoffman's best argument is not about the law at all but a legal realist objection that Salaita could lose because a judge might compound the university's violation of his right to freedom of speech by committing another such violation.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 15 Aug 2014 13:30
by Michael Dorf

My Verdict column on the Salaita case on Wednesday prompted a good deal of discussion on Twitter, Facebook, etc. I also received a fairly large number of private emails, some agreeing in whole or in part, others raising objections. One supportive comment came from a former colleague who asked whether she could include parts of my column in a letter from legal scholars with specialties including free speech and academic freedom to the Chancellor of the University of Illinois, urging the latter to reverse course and submit Salaita's name to the board of trustees after all. I agreed and our letter--which makes very clear that signatories take a wide range of views on the underlying substance and tone of Salaita's controversial tweets--is in the works.

Here I want to explore a practical question raised by a response I received from one of the scholars I invited to consider signing the letter. This person replied:
After reading the letter, I was inclined to sign it, but then I read [Salaita's] tweets. To be honest, they give me pause, not because of the substance of his views, but because he's behaving like a moron. Whether his views are pro- or anti-Israel, I would not expect any colleague of mine to make such stupid comments in the course of public debate. Now, I have to admit that I don't tweet and I never read twitter, so perhaps I'm more put off by the inanity of his comments than I should be. But in my view it's as if he ran down Main Street in a clown costume doing flips and screaming Beatles songs at the top of his lungs. He has a right to do it, but do I want him as a colleague? What kind of judgment does it show? I know I should be wildly supportive, in principle, but there is a difference, I think, between withdrawing the offer because of opposition to his ideas and withdrawing the offer because he's behaved in a manner (regardless of his ideas) that suggests sheer stupidity and terrible judgment. Of course, if we knew that the University withdrew the offer because of the substance, rather than because of the manner of discourse, the case would be clear.
I'll say a word about the merits here before coming to the main point I wish to make. The merits point is that if the university revoked Salaita's offer in response to perceived stupidity or bad judgment, it at least ought to have the burden of showing that, either because Salaita has a prima facie free speech claim (which I think he has) or because, on my contract law analysis, he has de facto tenure and is entitled to procedural due process.

But let's put all of that aside. I want to focus on the question of how faculty should conduct themselves in writing for the general public and via social media--on the assumption that they cannot be subject to any formal sanction for that conduct. My hypothesis is that there is something of a generation gap. Both the responder quoted above and I fall on the older side of that gap. I'm 50; the person I quoted above is older.

I'm not sure exactly where the line is, but I'd guess that it's currently around 40 years old--roughly the age one would need to be to have experienced the pre-Internet world as an adult. According to the information in one of his books, Salaita was born in 1975, so he's just on the younger side of the line, but of course I made this line up, so that doesn't really prove anything about him. In any event, what I have to say here is not really about Salaita in particular, so much as it is about how people of different generations represent themselves online. My hypothesis is that people younger than (roughly) 40 feel fewer constraints on what's appropriate to publish online than we old fogies do.

Much of what divides generations is purely stylistic. At some point about 15 years ago, I started to see substantial numbers of students showing up in law school with tattoos and multiple piercings. At first I thought this was unprofessional and I admit that even today, when I see someone sporting neck tattoos in the style of, say, basketball player Chris "Birdman" Andersen, my first thought is not "that guy is going to make a great impression arguing a case before the Second Circuit." But for the most part I have come to understand that this is simply an arbitrary matter of taste. I would not be surprised to learn that earlier generations of academics were likewise perplexed when people like me began teaching without a jacket and tie.

There is also a substantive dimension to the generation gap, however. For lack of a better place to start, I'll begin by considering my own writing as an example. I write for different sorts of audiences. When writing educational materials like casebooks and supplements, I try to write as objectively as possible. I have a perspective, which I don't hide, but I try so much as possible to present other perspectives as well. I also assume that the audience is somewhat sophisticated. I treat this sort of writing as similar in content and tone to teaching.

I also write academic papers for mostly academic audiences. I try to write in a style that's engaging and even funny at times, but I don't expect the average person to be interested in this writing because I assume a good deal of specialized legal background on the part of my readers. My tone in this work is also professonal but sometimes less objective. Some of my academic work is analytical or empirical, aiming to illuminate rather than to persuade, but some of my work is at least partly normative. When writing normative scholarship, I try to be scrupulously fair to people who hold different views and to address their arguments in the course of making my own, but my goal is not to present all positions as equally plausible and let the reader decide--as it is when I teach or when I write educational materials.

Then there is my popular writing, like my Verdict columns and my entries on this blog. Here too I have different aims at different times--sometimes to illuminate, sometimes to persuade. There are four main differences between my academic writing and my popular writing: (1) Pieces for the latter are much shorter; (2) they mostly aim for an audience that includes non-academics and non-lawyers, so they tend to be less technical; (3) they respond to news events quickly, so there is less time for me to cite-check and proofread as thoroughly as I do (aided by research assistants and editors) in my academic work; and (4) especially on the blog, I sometimes take a substantially breezier, more irreverent tone than I do in my academic work.

In none of my writing for public consumption do I use profanity gratuitously. I'll quote someone else's use of profanity where relevant (as in my column on Wednesday, in which I quoted Salaita's use of profanity), and I'll even run with it a bit, as in my blog post on Wednesday, in which, following the title of Robert Sutton's book, I repeatedly used the word "asshole." However, these are pretty rare exceptions.

I realize that one can be a respectable academic and follow somewhat different approaches from the ones I've outlined. Some scholars at least aim or purport not to make normative points at all. Others are considerably more normative than I am, seeing scholarship as an extension of advocacy. I don't mean to suggest that I'm at the exact midpoint but I do think that I have a pretty good sense of the range of approaches and that mine falls squarely in the mainstream.

The picture is somewhat more complicated with respect to blogging, writing op-eds, and so forth. I think it's generally accepted that even people who strive for a detached scholarly tone in their academic writing can and often do turn more tendentious in their popular writing. Here too, though, I think that my own judgments about tone are widely shared: You see a considerable volume of snark by academics writing for general audiences; you don't see a lot of in-your-face profanity.

Twitter is something else. I have automated Twitter (and Facebook) to blast out links to my columns and blog posts but only extremely rarely do I use Twitter to compose a freestanding comment--and even then it's usually something like announcing a conference. I haven't mastered the art of making a substantive point in 140 characters or fewer, and given my intellectual sensibilities, I doubt that I can.

But I think that for people who do compose substantive tweets, the Twitter medium itself encourages provocative exclamations--so that their tweets will get noticed--and gross oversimplification: It seems to me nearly impossible to give counter-arguments their due when tweeting. Quite apart from the problem of Twitter trolls, I strongly suspect that Twitter as such accounts for much of the reaction by the emailer quoted above: to tweet (other than by posting a link to something considerably longer and more thoughtful) is almost necessarily to behave like a fool. (Salaita is a useful example; I doubt that the person who called his tweets moronic would have said the same about Salaita's other popular writing, such as for Salon.com, which is polemical, to be sure, but well within the bounds of conventional public discourse.) 

None of what I've said about Twitter so far has a clear generational cast. A Baby Boomer who attempts to tweet attention-grabbing freestanding commentary, no less than a Gen-X-er or a Millenial, is likely to sound like a fool a good deal of the time. But there are two reasons to think there nonetheless is a generational divide.

First, youngsters are much more likely to tweet than we fuddy-duddies are. I recall learning about ten years ago that my then-teenage nieces and nephews didn't really "do email." They had email accounts but if I wanted to get in touch with them I needed to text. Apparently, they were and are fairly representative of their generation: They communicate in short bursts. And so for those below the generational divide I've identified, Twitter feels like an appropriate medium, even if it makes them sound like fools to us oldsters.

I realize that as I write this, Twitter itself is probably no longer considered cool by the youtherati, perhaps having been supplanted by Tumblr, Instagram, Reddit, Snapchat, and maybe even by newer apps and networks I've never heard of, like Piehole, Blowhard, and Mouthoff. Never mind. My point is not Twitter-specific. Instead, I mean to say that those on the younger side of the generational divide are more comfortable making their points in a sentence or less than are those of us on the older side of the gap.

Second, and relatedly, the lines between private and public statements are increasingly blurred. Sure, the whole point of a popular Twitter feed is that it's public, but increasingly the ability of people to share material across platforms with their "friends" and with "friends of friends" can make it hard to tell what is private and what is public. I get the sense that a lot of people--especially younger ones--have simply given up trying to draw the distinction or simply don't care. As a consequence, the sort of thing one might previously have said only orally and in private to a few people--such as "Governor Fortenbaugh is a real horse's ass"--now readily appears in Facebook posts and comments, which, to people who post such things on Facebook, may feel indistinguishable from posts on their Twitter feeds. And so they end up sounding like dopes.

Finally, let me say two things to my younger readers: 1) You're welcome; and 2) Get off my lawn.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Thursday, 14 Aug 2014 15:02
-- Posted by Neil H. Buchanan

This morning, the editors of The New York Times published two editorials applauding the O'Bannon case, claiming that the outcome will prevent universities from "exploiting the very students they have always purported to protect," and applauding the demolition of "[t]he myth of the pure 'student-athlete.' ” Meanwhile, Verdict had already published my latest column, in which I take a very different view of the landscape of college sports.

In my column, I return to an argument that I first offered here on Dorf on Law last December, where I described why there is nothing inherently wrong with "unpaid labor" in the context of nonprofit organizations.  At a minimum, as I will describe at greater length in a future post/column, none of the identifiable problems with college sports would be solved by paying cash to players, whereas such payments would certainly make matters worse in a number of important ways.

In today's column, I argue that the public confusion over college sports is rooted in the simple difference between revenues and profits.  College football and men's basketball produce lots of revenues, so they are called "money-making" sports, conflating revenues with profits.  Once one has made that analytical error, the question then quickly becomes why "everyone is getting paid except the guys on the field," or similar sentiments.  It all sounds very noble, but the supposed benevolence is misplaced.  In the for-profit world of professional sports, a conflict between owners and players is a zero-sum game.  (The owners will maximize ticket prices and TV revenues, no matter the content of the labor agreement, so "the fans" are not part of that story.)  If the players don't take their millions, the money goes to the private benefit of the owners.  Whatever else one might say about the big-time college sports programs, there is a long distance between a university president and an NFL owner.

I will come back to those arguments again, as I noted above, but I want to go in a slightly different direction here.  In my column, I again remind readers that college players are, in fact, paid quite well, in the form of full-ride scholarships.  As I wrote in a Verdict column that accompanied that Dorf on Law post from last December, the graduation rates of big-time athletic programs are not only un-terrible, but they are actually somewhat impressive (especially compared to the cynical conventional wisdom).  Moreover, even people who do not graduate benefit measurably from having attended college.

But cynicism is most definitely the order of the day in these discussions, so people quickly responded that there is no education at all going on at these universities, as far as football and male basketball players go.  Anecdotes have a way of morphing into established facts, which are then used to support the idea that universities are simply providing free tuition to jocks without giving them a college-level education.  Or, the claim at least is that such a large fraction of the athletes are not receiving educations that only a dupe of the NCAA would continue to think that full-ride scholarships are true compensation for the work of playing professional-in-everything-but-name sports.

Let us, then, temporarily embrace the cynical view, imagining that the worst things we hear about college athletics are universal, and therefore that the free tuition that these players receive is worthless.  What is left?  As I argue again in today's column, there is something odd about imagining that the modern college athlete at a "money-making" program is not receiving unique benefits.  Living in athletic dorms, with free room and board, is hardly an inconsiderable perk.  Even if, as the cynics claim, all too many of the recruited athletes are unready for college-level school work (or, if ready, are discouraged from using their minds), and thus do nothing but play video games and party between practices and games, that is a pretty sweet way for a young guy to spend four years of his time.

Which is, of course, before we have said anything about the Big Man on Campus phenomenon.  These athletes are not merely set up in special dorms and told not to be bother to attend class.  (Again, I am stipulating arguendo the certainly-overstated cynical view of the story.)  They are the gods of the campus.  Everyone wants to know them, and everyone wants to do favors for them.  Their social lives are -- how to put this politely? -- notably more successful than the average college guy's social life.

At this point, however, why not be completely cynical?  In addition to the regular trickle of anecdotes about academic fraud in big-time programs, there is a companion narrative in which apparently large numbers of athletes get away with whatever they want to do, on and around campus.  One 1980's graduate of Penn State described to me what it was like to try to co-exist with the supposedly squeaky-clean Nittany Lions football program, with players bullying other students in dining halls and basically throwing their considerable weight around with impunity.  Unfortunately, news reports confirm that such misdeeds by college athletes frequently cross the line into criminal behavior.  Some of these crimes are prosecuted, but the cynical view is that this goes on all the time, and the players get away with almost all of it.

In the 1996 comedy movie "Kingpin," a professional bowler named Big Ern (played by Bill Murray) wins a million-dollar tournament.  He is asked how it feels to win, and he replies: "All l know is, l finally got enough money... that l can buy my way out of anything.  l can do anything l want when l get my money later.  And l won!  Finally, Big Ern is above the law!  lt's a great feeling."

But allowing people to be above the law is, of course, not at all funny.  Last month, The New York Times ran a searing front-page story about how a tiny liberal arts college grotesquely mishandled a case in which a student claimed that a football player had raped her.  The player and his accomplices were cleared after a mere 12 days of perfunctory investigation, and other students on campus apparently isolated and taunted the student who was raped.  What is perhaps most pathetic about the story is that the college in question competes in the lowest division of football, but the undefeated team is still treated like gods on campus -- so much so that students will unquestioningly support the players and blame the 18-year-old victim.

Of course, the much bigger sports-related rape case last year involved the eventual Heisman Trophy winner, who quarterbacked Florida State to a national championship.  According to reports, a rape complaint to local police against that player was suppressed even before he had emerged as a superstar.  A law enforcement official in Tallahassee reportedly advised the victim not to pursue the claim, because there was simply no way that things would turn out well for her in that football-mad town.

To be very clear, I am not saying that two wrongs make a right, such that it would be OK to exploit football players (wrong) because some football players commit crimes up to and including rape (very, very wrong).  I am saying that the lives of college athletes are different from others, in some ways that are worse (physical damage, for which they clearly deserve adequate care and insurance) and some ways that are better.  If we are going to traffic in generalizations and innuendos, however, then the idea that there are a bunch of poor, uneducated kids being cheated out of their college educations must share the spotlight with the idea that college athletes are a bunch of pampered, out-of-control bullies and criminals.  Neither stereotype is likely to be true in general, but the latter is as believable (and supported by many more real-life incidents) as the former.  We can say, "All college athletes are  fake students, but they also all live life outside of normal rules," or we can note that both of these popular suppositions are thankfully exaggerations.  Both problems should be more aggressively addressed.

There is a lot of money floating around college sports, and it is corrupting not just the colleges but pre-college athletes as well.  (See especially this story about the way the detestable Deion Sanders' arrogance and star status have induced the Texas state government to give him carte blanche in running a corrupt charter school for elite high school athletes.)  Some of that money is being used to somewhat overpay coaches, and to build needlessly lavish athletic facilities.  But an honest look at the picture does not support the idea that the athletes are receiving nothing for their efforts.  If we are going to redirect some of the money to other uses, it would be nice for it to actually fund the universities' educational activities.  In addition, however, there are plenty of good ways to improve the lives of athletes and other students that have nothing to do with cash salaries.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 13 Aug 2014 11:00
by Michael Dorf

[Warning: Point 3 of this post repeatedly uses a mildly profane term. Do not read aloud to young children.]

My new Verdict column addresses the academic freedom issues raised by the recent decision of the University of Illinois board of trustees to disapprove a tenured appointment for Steven Salaita, in apparent response to his strongly-worded tweets criticizing Israel's military operations in Gaza. In response to charges that the university thereby violated Salaita's academic freedom, the university's defenders have drawn a distinction between firing a faculty member for his extracurricular statements and not hiring him in the first place. In turn, many academics have dismissed this defense as relying on a technicality. I argue in my column that the firing/not-hiring distinction is--in this context--not even a technicality. Under state law principles of promissory estoppel, Salaita probably was already de facto hired; and the First Amendment limits the power of a state university to engage in viewpoint discrimination, even at the hiring stage. Thus, the column concludes that the firing/not-hiring distinction does not provide even a technical defense of the Illinois decision.

Nonetheless, there certainly are factors that a university (or other employer) may legitimately consider at the hiring stage even though they would be illegitimate as a basis for firing. Here I want to say a few things about what those are and why. I focus on university employment because I know this context well, but what I say should also be relevant to other employment settings in which a contract or something else forbids firing except for good cause. Interestingly (at least to me), I think that some of the added protection against firing applies in the university setting even to non-tenured faculty.

As a preliminary matter, I want to be clear that I'm not now talking about the sorts of factors that are impermissible at both the hiring and firing stage. Antidiscrimination law singles out some such factors: e.g., race and sex. As I argue in the column, the First Amendment singles out another such factor for government employers: viewpoint. Some of these factors are only presumptively impermissible. E.g., sex (but not race) can sometimes be a bona fide occupational qualification (BFOQ). Likewise, as I note in the column, viewpoint discrimination is sometimes permissible for positions in which the employee's speech will be attributed to the government.

So, what sorts of factors are legitimate at the hiring phase but not the firing phase? I want to consider three.

(1) Curriculum. This is perhaps the least controversial. Suppose that a history department is looking for someone in colonial-era American history due to retirements or departures that have left a big hole in the department's curriculum. Along comes a spectacularly well-credentialed scholar and teacher of ancient Roman history. Let's call her Jane. Jane is terrific but the department already has enough historians of ancient Rome. It's looking for American colonialists. Pretty clearly, the department can decide to hire a not quite as well-credentialed scholar of colonial-era American history--call him Peter--rather than hiring Jane.

But now fast-forward ten years and suppose that Peter has tenure. Suppose also that there is now an opportunity to hire another, even-better, scholar of American colonial history, called Amy. If the department hires Amy, it will have more scholars of American colonial history than it needs. Can the department fire Peter to make room for Amy? I think the answer is plainly no. In dire financial circumstances, universities are permitted to eliminate positions even if those positions are filled by tenured faculty, but that is not what is going on in my hypothetical example. Curricular need is a legitimate hiring criterion but not (absent extraordinary circumstances) a legitimate firing criterion.

(2) Quality.  In some departments in some universities, the scholarship quality standard for tenure is the same for hiring lateral faculty with tenure as for promoting junior faculty to tenure. In other departments or schools, the standards are somewhat different, at least in practice.

That brings to mind an anecdote by way of illustration. I once attended a faculty meeting (I won't say where) at which a then-colleague was making an argument for hiring a lateral candidate. Certainly this candidate satisfied our internal tenure standard, the then-colleague said. Another then-colleague objected: "A table would satisfy our internal tenure standard," he said, pounding the table for appropriate emphasis. There then ensued a discussion, in which there appeared to be general agreement that as a formal matter our internal and external standards were identical but that in practice the internal standard was somewhat lower. This discount was in addition to other factors that might be relevant to evaluating an external candidate but that would be irrelevant for an internal candidate, such as curricular fit.

Now obviously a table would not satisfy any tenure standard. In schools and departments that grant tenure more readily to their junior faculty than to lateral candidates (even if they do not officially say that this is their policy), the scholarship standard is more like this: Publish reasonably good quality work in reasonable quantities. Put differently, there is a presumption that the sort of person hired at the entry-level will, if she keeps her nose to the grindstone, get tenure.

The reasons for a policy of this sort (even if informal) are pretty easy to identify. Junior faculty will be more at ease and more invested in the institution if they come in with the expectation that they will get tenure if they work hard. That, in turn, will make it easier to recruit top entry-level faculty.

The reasons for a contrary policy are also pretty easy to identify. A too-ready willingness to grant tenure to junior faculty who do passable work could end up leading to a faculty of mediocrities. In addition, knowing that faculty hired at the entry-level will almost invariably get tenure could chill a faculty's willingness to take risks at the entry level.

My goal here is not to adjudicate the relative strengths and weaknesses of the two approaches. I simply mean to identify quality of work as a factor that may be more relevant (or at least subject to different standards of evaluation) at the appointment stage than at the firing (i.e., denying tenure to an internal candidate) stage.

(3) The "No-Asshole" Rule. In his bestseller The No Asshole Rule, Stanford Management Professor Robert Sutton argues that firms and organizations can maximize their potential by adopting a rule barring the hiring of assholes. His paradigm example is a person who excels in his own work but is such a jerk to others that he undermines the enterprise as a whole. The demoralization cost to the organization outweighs the benefit of the asshole's individual contributions.

So now the question: Assuming that a no-asshole rule is legitimate at the hiring stage (as I believe it is), are there reasons to think it is illegitimate at the firing/retention stage? I think the answer is mixed.

Certainly it seems to me that a university could not fire a tenured professor for being an asshole, absent some conduct that would otherwise rise to the level of for-cause dismissal, such as committing a violent felony, sexually harassing students or colleagues, or repeatedly failing to show up to teach his classes. Just being an all-around jerk by, say, asking obnoxious questions at workshops, would not amount to cause.

However, I tentatively think that asshole-ness is a legitimate ground for denying tenure to an otherwise tenure-worthy junior colleague. Tenure typically turns on three criteria in descending order of importance: scholarship; teaching; and collegiality. Being an asshole can be relevant to teaching, but the more interesting case (and one that I have seen a few times in reality) involves someone who is generally a good or even excellent teacher but an asshole to colleagues and/or staff. This is admittedly not very common in junior faculty. People with assholic tendencies try to keep them in check before they have tenure. If someone nonetheless comes across as an asshole as a junior colleague, then he or she is likely to be a gigantic asshole once tenured. Accordingly, lack of collegiality could, at least in theory, be grounds for denying tenure to an otherwise tenure-worthy asshole.

I am nonetheless somewhat uncomfortable with that conclusion because of the vagueness of the collegiality category if it permits consideration of asshole-ness. Collegiality is usually measured by such relatively objective criteria as participation on committees and regular attendance at workshops. Now someone can do those things and still be an asshole. But the problem is that asshole-ness could then be used--either consciously or unconsciously--as a cover for more illicit criteria, such as political disagreement.

Of course, that could be true even at the hiring stage too. Suppose that Lawrence does exceptionally well-regarded work in Russian history and has excellent teaching evaluations, but holds controversial political views. If Lawrence is also an asshole--or even if there is some evidence that some people regard Lawrence as an asshole--then some people might say they are not hiring him because he is an asshole even though the real reason, or at least a big part of the reason, is that they don't agree with Lawrence's political views. The problem may be compounded by the fact that some people regard Lawrence as an asshole because of his political views.

Accordingly, although I am favorably inclined towards a no-asshole rule, I think that one must implement it very carefully.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 12 Aug 2014 15:00
-- Posted by Neil H. Buchanan

In my Dorf on Law posts last Tuesday and Thursday, I commented on an op-ed in the NYT by Laurence Kotlikoff, an economist at BU who has been peddling something called "generational accounting" for approximately a generation now.  As I noted, my first law review article (after I transitioned from being an economist into legal academia) included an extended analysis of the many flaws of Kotlikoff's approach, flaws that are obviously designed to bias the results toward extreme right-wing policy preferences.  I was thus shocked to discover that generational accounting is "still a thing" -- not just in the fevered dreams of one right-wing ideologue, but with bipartisan support in the U.S. Senate.

For those readers who do not have time to read both of my previous posts (or my law review article), I offer this quick summary of Kotlikoff's approach.  He argues that the U.S. government is currently bankrupt, based on forecasts of possible deficits from today until the end of time (literally).  This "infinite-horizon" forecast, we are told, shows that all future federal borrowing has a present value of $210 trillion, which he calls the "fiscal gap."  Of course, two thirds of that amount is based on the borrowing that will supposedly take place after the next 75 years (seriously), and over 90% of the fiscal gap over any time horizon is based on the assumption that health-care cost increases will continue to outstrip the growth of the economy, until the health care sector simply swallows up the rest of the economy.

In short, "We are bankrupt right now" really means, "If medical care costs don't moderate, then Medicare will grow and grow, even as the rest of the federal budget -- Social Security very much included -- shows no sign of being a long-term problem."  Even so, Kotlikoff is trying to convince people that it is Social Security that needs to be cut, and cut NOW!

As I noted, the original claim behind Kotlikoff's approach was that fiscal gap measurements are not really predictions so much as warnings.  Unless we change our current laws, the argument goes, behold where we are headed!  Yet as Kotlikoff blithely admits, his forecasts are not actually based on "current law" but on an "alternative scenario" in which Congress does not rein in medical care costs.  And guess what?  If medical care costs are never brought under control, then there will be a problem!

I also noted that Kotlikoff's recent op-ed included a further, rather startling claim about "current law": "True, Social Security benefits could be cut by Congress and the president. But so can official debt, as Argentina’s likely default reminds us."  I allowed that Kotlikoff quickly changed the subject, seeming not to rely on that jaw-dropping logical error.  Over the weekend, however, I went back over some of his earlier writings on the subject, and I came across an op-ed that he published in the Harvard Business Review in 1993.  (The article appears only to be available for a fee, or through a university library's website.)  Here is what he wrote there: "[T]he government's obligation to make benefit payments to current and near-term Social Security recipients is certainly no less real than its obligation to pay interest on its Treasury bonds."

There are two striking things about this argument.  First, it is clearly inconsistent with the arguments from Republicans who want to use the debt ceiling to force the Democrats to agree to even deeper spending cuts.  The claim there is that the government is allowed to "prioritize," using incoming revenue first to cover payments on official federal debt, with everyone else who is owed money simply left hoping that they eventually receive payment.  If the legal requirement to pay even current Social Security recipients is contingent on the debt ceiling, then those obligations would apparently be much "less real" than obligations to pay principal and interest on federal debt instruments, on time and in full.

Second, and much more interestingly, Kotlikoff's claim would seem to negate the very idea that Social Security -- or, indeed, any other program -- can ever be cut.  In his 1993 piece, he says that not just current Social Security payments, but payments to "near-term" recipients, are as irreversible as federal debt obligations.  In his 2014 piece, he no longer even limits himself to the near-term, saying that cutting Social Security's future benefits is logically equivalent to defaulting on debt.

If that were true, however, then Kotlikoff's argument should be that we must raise taxes in order to prevent the fiscal doom that he predicts.  If formal default is bad, and if (as he further argues) informal default through inflation is bad, and if cutting Social Security and other promised payments is logically equivalent to defaulting, then the only path forward is to increase taxes.  We could stop passing laws that would increase future obligations, but we could not pass laws that reverse scheduled future benefits under current law.

Instead, however, Kotlikoff's entire shtick is to scare people with his fiscal gap numbers, in order to get them to start cutting Social Security and other future payments right away.  Apparently, therefore, cutting spending in the future is not the same thing as defaulting on federal debt, after all.

Which brings us, finally, to the generational part of generational accounting.  The fundamental analytical flaw in Kotlikoff's long-horizon accounting is that we could change our assumptions about future deficits in a way that can make the entire fiscal gap disappear.  For example, I could say that, starting in 2025, Congress will gradually introduce reduced spending and increase taxes, in amounts that are sufficient to make the infinite-horizon fiscal gap go to zero (or even to create a $210 trillion surplus, or any other number).

Surely, however, one could object that my saying so does not make it true.  Fair enough.  But what if Congress, led by the misguided-but-sincere efforts of people like Senators Coons and Kaine, actually passed a law that was scored in exactly the way that my whimsical supposition described, with long-term increases in taxes and reductions in spending sufficient to make the fiscal gap go to any number we like?

The initial retort to such a law is, of course, would be that a later Congress could undo the Coons-Kaine Act, so we cannot count on the law actually to be carried out.  In that case, however, we have merely exposed how utterly ridiculous is the exercise of predicting long-term fiscal gaps.  It is true that some laws will never take effect, but that logic applies to all laws, not just the ones that undermine Kotlikoff's argument.

The further retort is that "waiting makes it more expensive."  See, for example, yesterday's press release from one of the Kotlikoff-besotted deficit scold groups, which purports to show that we need to cut benefits for today's seniors in order to reduce the burden on future generations.  Of course, neither Kotlikoff nor any of his political enablers would put themselves on the line for the proposition that current retirees' benefits must be cut.  But even if they did, where is the logic in the idea that today's seniors need to pay a price to allow future generations to pay absurdly inflated prices for health care?

Kotlikoff has long claimed that future generations will pay a higher "lifetime net tax rate" than current generations are paying, but that is based on (among many, MANY other logical flaws) the idea that the proper measure of government's impact on people's lives is limited to the difference between the dollars collected in taxes and the dollars paid out in direct, personal benefits.  When government spends money to improve technology, or to clean the air or water, that is measured by Kotlikoff as a burden on future generations, not a boon.

There are, as one might expect, many more problems with "generational accounting" than can be summarized in a few blog posts.  The goal here has been at least to offer a taste of the absurdity of it all.  I will close with one further point.  In 2006 or 2007, I was sitting in on a semester-long seminar in which one of Kotlikoff's primary co-authors was a co-convener.  Each week, no matter the topic, the other co-convener would take a few minutes to endorse generational accounting and all of its scary implications.  Finally, in the middle of the semester, I could not keep quiet any longer.  I raised my hand and, as calmly as I could, laid out a litany of the most well-known arguments against Kotlikoff's approach.  We were early in that day's session, and there was more than enough time for anyone to engage with my comments.

Kotlikoff's co-author then spoke up, saying that he had been listening to such arguments for years, and that he finally had to have his say.  This was exciting for me, because there had certainly been no serious effort by Team Kotlikoff to engage with such arguments in any other forum.  Still, I admit to being momentarily worried: "What if he has a great argument that I -- and everyone else -- never thought of?  Yikes."  So I leaned forward, waiting for him to say what he had for so long wanted to say, anticipating a long, detailed reply at least to the most important points that have dogged Kotlikoff and his co-authors over the years.

I remember the entirety of his comment quite clearly: "Generational accounting is better than not having any way to measure long-term fiscal outcomes."  That was it!  The entire argument was that, hey, it's better than nuthin'.  But, of course, even that punt is most definitely not true, because generational accounting is not merely inaccurate, it is biased by design.  It is thus actually worse than nothing.  Even so, the person who uttered that non-defense is a frequent economic advisor to many high-level Democrats.  No wonder this snake oil is still on the market.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 11 Aug 2014 11:00
by Michael Dorf

Last week, James Brady died at the age of 73. Brady, then White House Press Secretary, was shot in 1981 by John Hinckley, who was attempting to assassinate President Reagan. Although Reagan suffered a punctured lung, following medical attention he recovered quickly. Brady, however, was permanently disabled; his speech was slurred and he needed a wheelchair. He and his wife Sarah spent much of the rest of his days working to tighten gun control laws. Obviously, they did not succeed in substantially reducing access to guns, but things could have been even worse were it not for the Brady Handgun Violence Protection Act (a federal law requiring background checks) and the ongoing efforts of the Brady Campaign. Many people in Jim Brady's circumstances would, quite understandably, devote the balance of their lives to their own comfort. He was a magnificent example of someone who found purpose in his own tragedy. So let me first say, rest in peace.

As is my wont, I also wish to raise a legal question that has been occasioned by Brady's death. The coroner in Northern Virginia ruled it a homicide. That determination immediately raised the question of whether Hinckley could be prosecuted for murder.

There are several obstacles to a murder prosecution, including the traditional "year and a day rule." It holds that in order for a defendant to be guilty of murder, the victim must die within a year and a day from the injury inflicted by the defendant. Here that obviously isn't met. If for some reason the year and a day rule were not applicable, then the prosecution would have to prove causation; the coroner's report apparently supports the conclusion that Brady's injuries shortened his life, so causation would be possible to prove. Eugene Volokh has a useful discussion of the year-and-a-day rule and other issues here.

The biggest obstacle, of course, is the fact that Hinckley was already tried--and found not guilty by reason of insanity--for the assassination attempt, including for the offense against Brady. And that means that double jeopardy almost certainly bars new charges for murder. Had the assassination attempt occurred in California (where two different women attempted to kill President Ford in September 1975) or Texas (where President Kennedy was killed), then there would be a loophole: Under the "separate sovereigns" doctrine, a prosecution on federal charges does not bar a subsequent prosecution on state charges, or vice-versa, even for the same conduct. For example, the officers who beat Rodney King were first acquitted on California charges (sparking the Los Angeles riots of 1992), but then tried on federal charges for the same conduct. There was no double jeopardy bar because each sovereign--here California and the federal government--had the power to prosecute violations of its own law.

But Hinckley shot Brady in the District of Columbia. As Volokh notes, Hinckley was charged, with respect to Brady, under D.C. law (although the trial was in federal court). If D.C. were a separate sovereign, then double jeopardy would not now bar murder charges under federal law. But as Volokh also notes, the D.C. Circuit has said that for double jeopardy purposes, D.C. and the federal government are not separate sovereigns. Although the case Volokh cites for that proposition does indeed say just that, it was not a double jeopardy case itself, so the statement is dicta. Moreover, that case in turn cites another D.C. Circuit case, which also made the point only in dicta. I did about 15 minutes of additional research and could find no case which squarely held that the separate sovereign exception to double jeopardy does not apply as between the District and the federal government.

Nonetheless, I agree with the strong dicta (and thus with Volokh's account of the law), at least given the key U.S. precedents. The case with the most relevant analysis is a 2004 Supreme Court ruling,
United States v. Lara. There the question was whether the dual sovereignty doctrine applies as between the federal government and a Native American tribe. Congress had expanded the scope of tribal court jurisdiction to include certain offenses committed on a reservation by members of other tribes. Lara was tried in tribal court and then charged for overlapping offenses in federal court. The question for resolution was whether the separate sovereign exception applied.

The SCOTUS said yes. In response to the defendant's argument that the tribe, in exercising power conferred by Congress, was effectively an arm of the federal government, the Court said that the relevant Act of Congress did not so much delegate power to the tribe as it lifted a prior prohibition on the tribe's exercise of its own sovereignty. Thus, the crucial distinction the Court drew was this: Where a sovereign or quasi-sovereign entity exercises authority delegated  by the federal government, it acts as the federal government and thus the separate sovereign exception does not apply; but where the sovereign or quasi-sovereign exercises its inherent sovereign power to prosecute, then the exception does apply.

It's not clear that the Court in Lara correctly applied the delegated/inherent distinction to the facts of that case, as Justice Souter (joined by Justice Scalia) argued in dissent. Nonetheless, application of the Lara distinction to D.C. pretty clearly confirms the D.C. Circuit dicta: As a territory of the United States, D.C. has no inherent sovereign power, and so can only exercise authority delegated by the federal government. Even when D.C. acts in accordance with the wishes of its residents pursuant to the Home Rule Act, its actions can be overturned by Congress, and Congress could, if it so wished, entirely abolish home rule in the District.

Still, one might legitimately question this result on fairness grounds--although usually the questioning comes from the other direction. Various commentators have suggested that the separate sovereign exception to double jeopardy is a loophole. Perhaps it makes sense, they say, to treat prosecution by a truly foreign sovereign as not triggering the double jeopardy protection, but states are not fully sovereign. Given the substantial overlap of federal and state crimes--and given the degree to which the state and federal government are integrated into a single system--these critics say that prosecution in one system should preclude prosecution in the other.

I think there is a good deal to be said for that criticism, but also something to be said, even on policy grounds, for the other side. At least where the question is whether a state prosecution bars a subsequent federal prosecution, the federal interest in protecting civil rights looms large. Incompetent or half-hearted prosecutions by state authorities should not be permitted to bar vigorous enforcement of federal civil rights. But it is not clear to me that it is possible to justify such a result--no separate sovereign doctrine except in civil rights cases--as a matter of constitutional law.

Finally, it is worth noting how the anomalous treatment of D.C. both over-protects and under-protects D.C. residents. D.C. license plates proclaim "Taxation Without Representation" in protest of the lack of congressional representation and the other ways in which D.C. lacks various powers of the states. The inapplicability of the separate sovereign exception could be thought to be a counterweight: one way in which D.C. residents get something that state residents lack. And it's true, that someone accused of committing a crime in D.C. does get something out of the inapplicability of the separate sovereign exception, namely, the knowledge that he only has to beat the rap once. But viewed from the perspective of crime victims, things look quite different. At least in cases where there is overlapping state and federal jurisdiction, a crime victim in a state who sees the alleged perpetrator beat the charges has a second chance at (what she believes is) justice in a second jurisdiction. Crime victims in D.C. are denied that opportunity. Now if only there were some way to characterize that injustice in a slogan that could fit on a license plate!
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 08 Aug 2014 11:30
by Michael Dorf

Earlier this week, a New York Times article by Adam Liptak used some recent remarks by Justice Ginsburg as an occasion to ask the question whether the current Supreme Court is more sympathetic to gay rights claims than to women's rights claims. Because four Justices on the current Court (Roberts, Scalia, Thomas, and Alito) tend to vote against both gay rights and women's rights, while another four (Ginsburg, Breyer, Sotomayor, and Kagan) tend to vote for both gay rights and women's rights, the real focus of the article is Justice Kennedy, who joins (indeed, leads) the liberals in voting for gay rights -- as the author of the majority opinions in Romer v. Evans, Lawrence v. Texas, and United States v. Windsor) -- while joining the conservatives in cases that work against women's rights -- most recently in Burwell v. Hobby Lobby, but also in Ledbetter v. GoodyearGonzales v. Carhart (the federal Partial Birth Abortion Ban Act case), and some other cases.

I spoke with Liptak on background before he wrote the article but at my request he didn't quote me. As a former law clerk to Justice Kennedy, I did not want to be quoted in a brief snippet that might be taken out of context by some readers as either expressing agreement with cases I think wrongly decided or as vindicating the tacit suggestion that Justice Kennedy is a sexist.

Even so, the article does include the one point I tried to emphasize in resisting the claim that Justice Kennedy is more receptive to gay rights claims than to women's rights claims. I suggested that the pattern was due to the fact that formal legal discrimination against women was mostly ruled invalid in the 1970s, whereas the gay rights cases coming before the Court in the last two decades involved formal discrimination on the basis of sexual orientation. And indeed, in the rare post-1970s cases when women present formal equality claims, Justice Kennedy has been receptive (as illustrated by his joining Justice Ginsburg's majority opinion in United States v. Virginia).

Put differently, Justice Kennedy believes in formal equality -- with respect to sex, sexual orientation, and, for that matter, race -- but he is only seeing formal equality claims with respect to sexual orientation, not sex. (He is sympathetic to formal equality claims of race discrimination, but those tend to be made by white plaintiffs challenging race-based affirmative action.) Liptak quotes my former colleague and law school classmate Suzanne Goldberg for more or less this point. She says that "the Court’s recent gay rights decisions seem to be catching up with women’s rights cases of earlier decades."

Nevertheless, Goldberg goes on to add that "we live in a society that now seems more receptive to gay rights than women’s rights generally," and Liptak offers some additional evidence that this appearance from the Court--and from Justice Kennedy in particular--is not simply a product of the different kinds of cases. In particular, he offers two sorts of evidence for this view of Justice Kennedy: personal and rhetorical. I think the personal evidence is highly speculative and the rhetorical evidence is real, but much less revealing than the article suggests.

Stripped of references to Justice Kennedy's opinions, here is the entirety of the personal evidence that Justice Kennedy lives in the present with respect to gay people but in the world of Ozzie and Harriet with respect to women. Liptak writes:
A Sacramento lawyer and lobbyist who still lived in the house he grew up in when President Ronald Reagan nominated him to the Supreme Court in 1987, Justice Kennedy is the product of a placid middle-class existence in which most women stayed within traditional roles.   . . . But Justice Kennedy, 78, has long had gay friends, and his legal philosophy is characterized by an expansive commitment to individual liberty.
To my mind, this is a puzzle posing as an explanation. It is pretty far-fetched to think that daily life in the capital of California in the 1960s and 1970s was untouched by the women's rights movement, so one must hypothesize further that Justice Kennedy existed in a bubble within the larger culture. But why was he willing to break out of his bubble to form friendships with gay people, but unwilling to break out of the bubble to see women in non-traditional roles?

The rhetorical evidence is somewhat more solid but it rests almost entirely on the portion of Justice Kennedy's majority opinion in Gonzales v. Carhart in which he credits "abortion-regret syndrome" as a justification for the government ban on so-called "partial-birth" abortion. Liptak quotes Justice Ginsburg's dissent in that case, in which she says that the majority opinion reflects "ancient notions about women’s place in the family.” He also cites a 2008 South Carolina Law Review article by David Cohen. Much of that paper crunches data to show (unsurprisingly) that Justice Kennedy was somewhat less sympathetic to women's equality claims than Justice O'Connor was. Cohen also makes an interesting argument that Justice Kennedy was least likely to vote in favor of women's equality when the particular claim involved women's relations with children, and more likely to uphold such claims for rights in the workplace or other public settings. But his only direct evidence of an archaic attitude is Justice Kennedy's language in Gonzales v. Carhart.

I am also troubled by the "abortion-regret" passage in Gonzales v. Carhart, but mostly for different reasons: 1) The passage admits that there is really no evidence that this is a real phenomenon but credits it anyway; and 2) even if women do come to regret certain categories of abortion because they were not properly informed about what those abortions involved, that would justify a full disclosure provision, not a ban. As for the rhetoric of the passage, I find it less indicative of sexism for three reasons.

First, like many Americans, Justice Kennedy is deeply ambivalent about abortion rights, especially with respect to late-term abortions. This comes through pretty clearly in his graphic description of the banned abortion procedure in Gonzales v. Carhart. Again, I find the underlying argument unpersuasive: as noted in the dissents, the methods of abortion that are permitted under the Act are equally grisly and no more protective of fetuses. But it's pretty clear that whatever archaic attitudes about women are expressed in the majority opinion in Carhart are mostly opportunistic; the case is less hostile to women's rights than it is indifferent to them.

Second, I'm not so sure that the Gonzales v. Carhart language really does trade in stereotypes. Justice Kennedy says: "Respect for human life finds an ultimate expression in the bond of love the mother has for her child." And then a couple of paragraphs later: "a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

That language combines fetus-focused concern about the banned procedure with a certain idealization of motherhood. It's true that it's invoked in the service of upholding an abortion restriction, but Justice Kennedy (in the joint opinion with Justices O'Connor and Souter) in Planned Parenthood v. Casey makes similar-sounding statements in support of reaffirming an abortion right:
The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.
So yes, Justice Kennedy--on his own and in combination with other Justices--tends to write about women in abortion cases in romantic language, but doing so does not clearly correlate with his voting against abortion rights, much less with voting against women's rights more broadly.

Third, even if one reads Gonzales v. Carhart as trading in archaic stereotypes for the purpose of rejecting a sex equality claim, it is, after all, only one case. That fact is obscured in the Liptak article by the quotation from the Ginsburg dissent in Carhart without mentioning the case by name, by invoking the Cohen article, which cites only Carhart for its rhetorical points, and by then discussing Carhart directly as the "most memorable" and "most troubling" example of an ostensibly broader phenomenon. But there is no evidence of a broader phenomenon. There is just the one case, triple-counted in the Liptak article.

Finally, I don't want to be read as reflexively agreeing with the Justice for whom I clerked. I disagree with a great many votes that Justice Kennedy casts, in cases that involve women's rights as well as other kinds of cases, and I don't hesitate to criticize those votes. But I don't see much evidence in his opinions or elsewhere that he is driven by sex-role stereotypes.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Thursday, 07 Aug 2014 12:00
-- Posted by Neil H. Buchanan

In my Dorf on Law post two days ago, I described the surprising and unwelcome return of something called "generational accounting," which the economist Laurence Kotlikoff and various co-authors have been hawking for the past twenty years.  This was a bit of a bad acid flashback for me, because I had written extensively about this in a law review article that was published in 2005.  To find this staring out at me from my morning newspaper on the first day of August in 2014 was, to say the least, an unpleasant development.

Kotlikoff has spent much of his career claiming that the United States government is going "bankrupt," using an accounting method to measure what he calls the "fiscal gap" in a way that makes it seem as if current budgetary policy is completely out of control.  He was given space on the NYT op-ed page last Friday, where he trotted out his usual rhetorical tricks, ending with a smarmy claim that budgetary policy  is "a moral issue. Will we continue to hide most of the bills we are bequeathing our children?"

My post on Tuesday described the dishonest rhetoric that Kotlikoff uses to sell his snake oil.  I promised that my next post would describe the substance, such as it is, of his claims.  As we shall see, this is a case of an ideological agenda masquerading as rigorous accounting.  Kotlikoff is an anti-government conservative, spinning scare stories about "inflationary, easy-money policies," government accountants who hide the nation's actual "credit card bills," and powerful old people who steal the birthright of future generations.  That he has managed to find an audience among leaders of both U.S. political parties is truly depressing.

What is a "fiscal gap"?  Kotlikoff and his colleagues claim that it is the only true and honest way to measure the government's finances.  Rather than focusing on the year-by-year deficit, they claim that they can measure the totality of all current and future government borrowing, adjust it to present value, and express total indebtedness for all time in that single number.  As I noted on Tuesday, Kotlikoff claims that this number went from $205 trillion to $210 trillion from 2012 to 2013, giving a "true deficit" of $5 trillion for 2013 alone, not the official $680 billion that was reported by the (presumptively dishonest) government.  Of course, Kotlikoff persistently fails to report these numbers as a percentage of GDP (which corresponds to our ability to pay for the debt).  Even his highest numbers are actually no more than about 7% of infinite-horizon GDP.  But that is not scary enough for his purposes.

The idea that we ran a five trillion dollar deficit in a single year is, on its face, implausible, as I explained yesterday.  But let us set that aside for a moment.  How do we get to $210 trillion in "honest" government debt, when the official debt held by the public was only bumping up against $12 trillion for the first time in 2013?  Simple, says Kotlikoff.  We have promised more benefits in the future than we will collect in taxes, so we will be running huge deficits in the future.  How far into the future?  Infinitely far.  Regarding the part of the long-term gap that Kotlikoff attributes to Social Security, he says that the infinite-horizon gap is $24.9 trillion, whereas the gap using a 75-year window is $10.6 trillion.  In other words, almost sixty percent of Social Security's supposedly "hidden credit card bill" is derived from a guess about what the system will pay, versus what it will collect, from 2089 through eternity.

Still, Kotlikoff has argued repeatedly that it is "arbitrary" to cut off the forecast at any particular date.  But if his claim is that today's oldsters are hoodwinking their children and grandchildren by not having the government publish the forecasts of Social Security's finances in the years after sea levels have risen by three feet, then maybe we should not take him terribly seriously.

More centrally, Kotlikoff and his defenders claim that they are merely describing what will happen under "current law," that is, if nothing is changed from today onward.  Thus, the claim is that this is an "early-warning system" -- not a prediction, but a call to arms.  But what is "current law"?  Kotlikoff takes it to mean that all government taxing and spending laws are kept on the books forever, as is, while demographic changes and key economic variables proceed on predicted paths.

But that is not how government programs would ever work.  If the idea is that, as Kotlikoff repeatedly says, we must act now in order to prevent catastrophe in the future, then we need to know what future law will look like, not what it most definitely will not look like.  For example, before Congress indexed tax brackets to inflation in 1981, one would have predicted under a "current law" forecast that everyone would eventually pay the highest income tax rate, as inflation pushed even the lowest incomes to higher nominal levels.  But that would never happen, even without official indexing, because Congress would never let it happen.  (Indeed, before 1981, Congress periodically reset rates in light of inflationary "bracket creep.")

In fact, Kotlikoff does not really commit himself to "current law."  For Social Security, as I described again last week in my Verdict column, current law (under the "intermediate forecast") would see benefits being cut by 1.2% of GDP in 2034, so that Social Security by definition cannot contribute to any fiscal gap thereafter.  Kotlikoff endorses CBO's "alternative fiscal scenario," which selectively does NOT rely on current policy, as the "most realistic" way to view future outcomes.  That all of those alternatives make matters look worse is hardly a coincidence.  (And Kotlikoff cannot deflect blame to CBO, because he has been a shameless and indefatigable policy entrepreneur and has -- amazingly -- managed to get CBO to adopt the essence of his approach on these very-long-term forecasts.)

What would a truly realistic forecast look like?  It depends on what costs are driving the long-term deficit predictions.  In my 2005 paper, I assessed a 2003 fiscal gap computation by two of Kotlikoff's students.  There, the total fiscal gap was computed to be $44.2 trillion.  (Note, then, that we supposedly ran up over $165 trillion in "true debt" -- $210 trillion minus $44 trillion -- from 2003 to 2013, or about $16 trillion per year.  Plausibility checks are a good thing.)  Of that $44.2 trillion, $7.1 trillion was from the not-actually-current-law Social Security gap, $0.5 trillion was for the entire federal government other than Social Security and Medicare, and the remaining $36.6 trillion was from Medicare.

Under the updated numbers that Kotlikoff was hawking last week, Social Security was only $24.9 trillion of the $210 trillion infinite-horizon fiscal gap, and (although Kotlikoff did not report it), the rest of the federal government's post-sequester-and-all-that budget is essentially in balance (and plausibly in the black), meaning that close to 90% of the long-term fiscal gap is attributable to whatever assumptions are driving the forecasts of future Medicare spending.

This, finally, is where some realism needs to come in.  These long-term forecasts are based on the key assumption that Medicare's cost growth will exceed overall inflation by some arbitrary amount every year, causing the Medicare budget to grow without limit, sucking up more and more of the economy.  Tilting the analysis still further, CBO tells us (here, Table 1-1) that under their alternative fiscal scenario, "After 2022, several policies that would restrain (Medicare) spending growth are assumed not to be in effect."

In other words, claiming that we currently have a huge fiscal gap really means that "current law, adjusted for 'realism' in a pessimistic alternative reality" will result in large excesses of Medicare spending over revenues.  (And if my puppies had continued to grow throughout their lives as much as they grew during their first year, they would have weighed 700 pounds each when they were ten years old.)  But this is completely ridiculous, because future Congresses can control those spending and revenue paths.  We will never face the future that the fiscal gap number purports to warn us about -- not because we have been warned, but because even a Congress that was mercifully spared the Kotlikoff nonsense would never allow things to follow the path necessary to generate those huge numbers.

At last, we reach the core of Kotlikoff's hucksterism.  If the defense is, "Well, this is not what's really going to happen, but only what could happen, if Congress never did anything, and if medical care costs never moderate," then what are we to make of the claim that we have all of these hidden credit card bills right now?  Not that we could one day owe much more, but that the only true way to measure our actual debt over the infinite future is to add up costs and benefits that will never come to pass?    (Brad DeLong and Dean Baker each offer further critiques of the dishonest mechanics of fiscal gap accounting, here and here, but the fundamental issue is that the long-term forecasts of "current law" or "alternative scenarios" are completely manipulable.)

Kotlikoff frequently claims that the U.S. is already "bankrupt."  Does he merely mean to use that term as a rhetorical flourish, or a deliberate overstatement, not to be taken literally?  He can speak for himself: "Sound fiscal gap accounting says the United States is bankrupt.  Bankruptcy is a strong term. But it is apt.  Future government receipts don’t cover future expenditures as things stand. Not nearly."  "As things stand," he says, we are bankrupt.  This is not a claim that the government could become bankrupt some day.  It is a claim that, because of a forecast of persistently excessive health care cost inflation, we are already bankrupt.  And it is a "moral issue" for us to be honest with our children about it.

Which raises an important question.  Where is the "generational accounting" in all of this?  In fact, it is even more dishonest than the fiscal gap gamesmanship.  That story, however, will have to wait until my next post.  For now, however, it is clear that the fiscal gap idea is itself bankrupt.  Masquerading as a way to non-arbitrarily measure future borrowing, it is merely a vehicle to allow scare-mongers to import conveniently dire assumptions into the analysis of the federal budget, in the name of hacking away at successful government programs.  Immoral, indeed.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 06 Aug 2014 12:30
By Sherry F. Colb

In my Verdict column for this week, I discuss the case of Paroline v. United States, in which the U.S. Supreme Court confronted the question of how to interpret a federal law providing for restitution for victims of child pornography.  In the column, I review the different approaches of the majority and the two (very much opposed) dissenting opinions, and I also suggest that the restitution focus at the Court (and in the federal statute as well) ignores a whole group of victims of child pornography who could virtually never meet an individualized causation requirement established as a prerequisite to receiving monetary compensation: those victims whose later exploitation was fueled and motivated by prior possessors' demand for child pornography.

In this post, I want to talk about a very different matter that goes mostly undiscussed in the Supreme Court's opinions in Paroline:  the tension between the majority's worries about disproportionate restitution and the Court's general indifference to proportionality in the context of sentencing convicts to extremely long sentences for their (sometimes trivial) offenses.

The Court's majority opinion  expressly states that forcing Paroline to pay for all of child-pornography-victim (and respondent) Amy’s pornography-induced injuries would be grossly out of proportion to Paroline's relative role in causing those injuries (given the number of other offenders who have possessed her images).  Indeed, the Court goes beyond making this observation as a matter of simple statutory interpretation and indicates that requiring such a "joint and several liability" payment might well violate the excessive fines clause of the Eighth Amendment.  In the Court's words:

“The reality is that the victim’s suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution.  That approach is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment.”

This statement is striking, given that this is the same Court that has seen fit to tolerate – against Eighth Amendment disproportionality challenges – the imposition of a life sentence for shoplifting, in Ewing v. California, and of a mandatory life sentence without the possibility of parole for the possession of 672 grams of cocaine, in Harmelin v. Michigan.  Justice Kennedy in particular, who wrote the majority opinion in Paroline, joined the majority in Ewing and joined a concurring opinion in Harmelin, in which Justice O'Connor said that life without parole was not grossly disproportionate punishment for the crime of cocaine possession.  

If it is unfair and disproportionate to make someone in possession of child pornography pay money for much more than his share of his victims’ injuries, is it any more fair and proportionate to lock someone up for the rest of his days in a prison cell, when it is impossible to trace his particular conduct to anyone's suffering serious injuries at all?

I will share here  two admittedly speculative potential accounts of this oddity,  The first guess is about ideology. To oversimplify the terrain, outside the death penalty context, this Court has, on the whole, been hostile to criminal defendants’ complaints about the severity of their punishments, while the Court has simultaneously been rather friendly to civil defendants' claims that they are denied Due Process by plaintiffs’ demands for large punitive damages awards for tortious behavior.

When a convict complains about having to go to prison for a long time, such a claim may accordingly be triggering a law-and-order “don’t complain about your punishment” attitude in many (including some of the Justices on the Supreme Court).  Yet at the same time, when a plaintiff (or here, a victim who seeks restitution and thus resembles a civil plaintiff in that respect) asks for a large amount of money to compensate for her injuries, some of the same people who feel little empathy for the criminal convict may nonetheless feel impatience and annoiyance at the civil tort plaintiff's (or here, the similarly situated victim seeking restitution's) argument that she wishes to receive a seemingly enormous amount of money from the defendant.  Though Justice Kennedy in Paroline distinguishes Paroline himself from a civil defendant in virtue of the litigation's connection to his criminal prosecution, his similarity to civil defendants may do a better job than Justice Kennedy's distinction in accounting for the mercy that his circumstances seem to engender.  

In a number of cases, the U.S. Supreme Court has said that punitive damage awards can be so high that they violate the defendant's right to Due Process.  Such cases include BMW of North America v. Gore, State Farm v. Campbell, and Philip Morris USA v. Williams.  This line of cases may help explain a reluctance on the part of the Supreme Court to award Amy, a victim of child pornography, an amount of restitution that would be extremely disproportionate to the relative contribution of the particular defendant here to her suffering.

A second potential source for the oddity (of toothless proportionality analysis in Eighth Amendment cruel and unusual punishment consideration of prison sentences coupled with more exacting Eighth Amendment excessive fines scrutiny of proportionality in restitution awards), I believe, is the regrettable fact that shockingly long prison sentences no longer shock people, including the Justices.  The U.S. is such a leader in incarceration that sending people away for life for relatively trivial matters no longer raises eyebrows.  They’re “just criminals,” after all.  On the other hand, there is a perception among Americans (and perhaps among some of the Justices as well) that plaintiffs (and plaintiff-like victims) are greedy people who seek unearned awards while the “rest of us” have to work for a living.  This uncharitable view of both convicted criminal defendants and injured plaintiffs creates the otherwise peculiar sentiment that comfortably tolerates draconian prison sentences but takes offense at the possibility of over-compensating a plaintiff-like individual such as Amy.

Whatever its source, I would suggest that it may be time for the Supreme Court Justices (and perhaps for Americans more generally) to apply some critical scrutiny to their willingness to allow extremely long prison sentences to fall under the radar, while money awards -- which take less away from defendants than incarceration does and which, unlike incarceration, may directly help in restoring the wellbeing of injured victims -- trigger outrage and cries of "unconstitutional."  At the very least, there is a tension here, if one is truly concerned about proportionality, that deserves our attention.
Author: "noreply@blogger.com (Sherry F. Colb)"
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