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Date: Thursday, 09 Oct 2014 15:03
-- Posted by Neil H. Buchanan

The late night shows on Comedy Central, The Daily Show and The Colbert Report, have been especially strong lately, mocking the full-on craziness of the Foxiverse and other cable news shows in their coverage of the Ebola crisis.  I hesitate even to call it a "crisis," of course, because that feeds into the panic-mongering that Stewart and Colbert are ridiculing.  But given the death toll in several western African nations, I think it is reasonable to use that word.  Even so, it is obviously not true that Americans are all only moments away from being infected with this deadly disease, and it is truly sad that, once again, the voices of reason are provided by comedians, while right-wing politicians foment fear, and supposed journalists treat "Are we doomed?" as a matter of opinion, to be exploited for ratings.  Sad, but sadly unsurprising.

In my new Verdict column, published today, I take an unusual angle in analyzing the right-wing media's scare tactics regarding Ebola.  I first discuss the standard anti-government story that is so often voiced by conservatives, in which they say that "regulation" harms the economy.  This, of course, is a logically incoherent claim, because of the "baseline problem" that I have discussed frequently here on Dorf on Law (e.g., here): Every economy is regulated by the government, because every economy exists only because a government's rule-making and enforcement mechanisms allow commerce to proceed.

Of course, even though we have long known it to be true that the economy exists only because a government is there to enable it, it might still be possible to say that there is a meaningful way to define the extent to which an economy is regulated.  An "unregulated economy" might be an oxymoron, but perhaps it is possible to define and measure what it would mean for an economy to be "less regulated" and "more regulated."  As it turns out, however, even that is meaningless.

Consider, for example, a coal mine owner.  If the government sets rules about what the coal mine can do with its waste, either through negligence laws, tax incentives, or clean-up rules, it is commonly thought to be "regulating" the business.  But if it does not do any of that, then the government is merely regulating in a different way.  It would certainly prevent a person from collecting mining waste from a stream and dumping it on the property of the mine owner.  It would, in a number of plausible scenarios, arrest people who tried to protest at the house of the owner.  It would enforce the contracts that allow the mine owners to sell their coal.  It could prevent people from joining together to force the company to pay compensation to victims, not just by having the courts throw out suits against the company, but by passing laws making it illegal to criticize coal companies.  (Sound far-fetched?  Think about the "ag gag" laws regarding industrial animal processing.)

In short, the various ways in which a government can help or harm any particular business or industry are so varied that it is impossible to quantify them consistently in order to compare the degree of regulation.  In my column, however, I note that everyone (including me) does have an intuition about what it means to be "against regulation," even if such an idea is ultimately meaningless.  In the pedestrian sense of the word, the government is "regulating" when its actions help people who do not own businesses, while it is "not regulating" when it does nothing to stop businesses from doing what they would like to do.  When government takes actions that increase businesses' profits, the government is allowing "the free market" to work.  When it takes actions that increase the wages of workers, that is "intrusive government."  And people continue to think that this distinction is meaningful, even though coal companies and others rely every day on the government's explicit and implicit promises to take actions directly in defense of the companies' bottom lines.  (In the bad old days when mine owners hired paid thugs to beat union organizers, the government said that doing so was a legitimate action to protect property and contract rights, not a violation of the rights of speech and association.  Allowing thugs to act as enforcement agents is an affirmative choice by government.)

There is thus no content to the idea that the government is "less involved" when it allows powerful entities to press their advantage over less powerful people.  We are simply accustomed to blinding ourselves to the government's involvement in some situations, but to focus on its involvement in others.  "I know I'm being regulated, because the government is stopping me from doing what I want to do" means nothing, because government is always stopping someone from doing what they want to do (preventing one side of an agreement from walking away from a contract obligation, for example).  Moreover, people's ability to do what they want (such as buying another piece of land to expand a mining operation) is predicated on the government's having taken actions that allowed them to accumulate the means to do so.

At this point, then, we have seen that it is not only meaningless to say that "the government should get off our backs," but it is not even possible to critique government's involvement in an economy in a simplistic more/less fashion.  Ronald Reagan's famous line -- "Government is not the solution to the problem; government is the problem" -- reduces to nothing more than saying that government should help the Koch brothers rather than the people who are dying of lung disease.

In some ways, everything I have written above and in my Verdict column is old news.  Certainly the "no baseline" argument has been made for decades (as I readily acknowledge), and although my argument that this cannot even be a comparative matter is less familiar, I sincerely doubt that I am the first to have made something like that point.  The larger point that I make in today's column, however, might count as a new insight.  As is true of much of my writing, the point in some ways boils down to analyzing the consequences of rhetoric.

What are the consequences of people wrongly railing against "the government" in the way that Reagan and his acolytes have perfected?  Generally, it merely means that we adopt policies that are worse than policies that we would adopt in a non-Reaganite world.  Allowing, say, for-profit colleges to prey upon poor students, because to change the rules regarding such contracts would somehow violate free market principles, is a tragedy and terrible public policy.

Even so, the results of such bad policies are, for lack of a better word, finite.  Living in a world in which people think it means something to say that the "government is always wrong," and allowing them to use that illogic to twist public policy, means living in a world where people's lives are worse than they should be.  Some people remain without work, some people get sick, and some die sooner than they might have.  But being anti-government, as deluded as that might be, does not ultimately lead to chaos.

What makes the Ebola situation so remarkable, by contrast, is that the habit of demonizing government leads to absurdity and anarchy, rather than merely to unnecessarily bad policies.  Colbert aired a clip of some Fox talking head asking her viewers rhetorically if they believed that the (inherently incompetent and venal) government was telling the truth about Ebola.  And even though she was a truly extreme case, the attacks on the government that are such a habit from right-wingers regarding other policies have seamlessly crossed over to attacking the government again, even though there is no "market solution" to the Ebola crisis.

In other words, once the anti-government religion has become a fixed idea in people's minds, there is no compartmentalizing their hatred.  "Government is the problem," as incoherent as it is in the economic context, merely means choosing one type of regulation over another.  "Government is the problem" in the Ebola context leads to ... what?  When we rightly criticized the Bush Administration for its unforgivable mishandling of the Hurricane Katrina tragedy, the idea was to try to force the proper authorities to act more vigilantly and competently in the future.  Unfortunately, for too many people, the lesson that they learned was that one should always attack the government, even when the alternative is mayhem.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 08 Oct 2014 12:00
by Michael Dorf

Imagine a conservative judge on a panel on one of the courts of appeals in a circuit that has not yet ruled on the constitutionality of state laws forbidding same-sex marriage (SSM). Let's call him Judge Hetero.  Judge Hetero has considered all of the arguments, and his best legal judgment--informed as a judge's legal judgment inevitably is, by his values--is that there is no constitutional right to SSM. Hetero admits that the question is close in light of United States v. Windsor, but he thinks that CJ Roberts was ultimately correct in reading that case as a federalism decision. I know most of my readers do not think this; I don't think this; I think the opposite; but at least a few judges think this, and I'm asking you to assume for reasons that shall become clear that Hetero is one of these judges.

If Hetero's court had been required to rule on the validity of a state SSM ban last week, he would have voted to uphold the ban. Now the question: Assuming Hetero is acting in perfectly good faith, respecting precedent, and not playing any strategic games, but that he remains as conservative on this issue as he was last week, should he change his mind in light of the cert denials? Somewhat surprisingly, the answer is not clear.

Now, in one obvious sense the cert denials make no difference. As the Supreme Court has repeatedly noted, a cert denial sets no precedent. So formally, the cert denials are irrelevant and a judge who was inclined to rule against a right to SSM last week should remain so inclined this week.

But the cert denials may be relevant in a different sense: They enable the appeals court judges to predict with near certainty that the Supreme Court (at least absent any retirements or deaths) would vote to uphold a right to SSM. As a judge on what the Constitution calls an "inferior Court," Hetero might well think that his job is to decide cases in a way that will not result in being reversed by his superiors on the Supreme Court. Indeed, it can be and has been argued that the very obligation of vertical stare decisis is an outgrowth of the ability of a superior court to reverse an inferior one. So why waste everyone's time and money by issuing a decision that Hetero has extremely good reason to believe will be reversed?

The answer depends on how we conceptualize the role of lower court judge. Is it the job of a lower court judge to predict how a higher court will decide an issue? In one context, the Supreme Court has said no. In 1989, in Rodriguez de Quijas v. Shearson/American Express, Justice Kennedy said this for the majority: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Suppose Hetero thinks that the Supreme Court's 1972 order summarily dismissing the appeal in Baker v. Nelson as presenting no substantial federal question was a judgment on the merits that there is no constitutional right to SSM--as briefs for opponents of SSM argue. Then Hetero concludes, based on Rodriguez de Quijas, that he should ignore the signs that the Supreme Court would now rule otherwise, because they merely undermine but do not expressly overrule Baker.

However, nearly all lower courts to have considered the issue find that the Rodriguez de Quijas rule either does not apply to a per curiam appeal dismissal like Baker or that the threshold for superseding such a bare ruling is lower for that kind of case. Suppose Hetero does not think that Baker decides the issue but his best judgment is nonetheless that there is no right to SSM. Now should Hetero sublimate his best judgment to his prediction of how the Supreme Court will decide the case?

I wrote an article in the 1995 UCLA Law Review (downloadable here) in which I argued that lower court judges generally should not conceive of their role as predicting the rulings of higher courts. Predicting how other judges will rule on an issue, I recognized, is accepted in special circumstances, such as when a single Justice must decide whether to grant a stay and acts as a proxy for the full Court or, more controversially in my view, when a federal district court sitting in diversity must resolve an unresolved question of state law. However, I contended that as a general matter, rule-of-law values concerning the impersonality of legal principles obligate lower court judges to apply their own best judgment about how to apply the law--including, of course, all applicable precedents of higher courts.

I continue to think that lower court judges generally should not reject their best judgment about legal principles in favor of a prediction of how a higher court will rule. Accordingly, my answer would be that Judge Hetero should stick to his guns and rule against SSM. If the Supreme Court wants to reverse him based on a different (equally sincere) view of the law, that's its business, not his.

However, I recognize that the issue of whether and when courts should predict rather than use their own best judgment is not settled. Almost exactly simultaneously with my UCLA article, Evan Caminker published an article in the Texas Law Review (no general access version but available via Hein, WestLaw, or Lexis to those with subscriptions) in which he argued for more or less the opposite conclusion. (Caminker and I did not learn of our respective undertakings until we were both nearly finished with our papers, just in time to cross-cite one another but not in time for either of us to address the other's arguments as such in an extended fashion.)

Finally, note that the question whether a lower court judge should predict or simply decide cases according to her own best judgment does not have a clear ideological valence. When the higher court is to the right of the lower court judge, predicting will skew to the right, while best judgment will skew to the left, and vice-versa when the higher court is to the left of the lower court judge. My hypothetical example with SSM falls into the latter category but there is no systematic bias to the choice.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Wednesday, 08 Oct 2014 04:02
by Michael Dorf

I usually write a blog post to accompany my Verdict columns, but my column today is on the constitutionality of quarantines (in response to Ebola), about which I have nothing to add. I'll let the column stand for itself. Meanwhile, I'll be back with another same-sex marriage post in a few hours.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 07 Oct 2014 04:33
by Michael Dorf

Yesterday's cert denials in the same-sex marriage cases surprised most observers, including me. The likely impact of the cert denials was pretty well understood almost immediately. As I explained a couple of weeks ago, given the practical impact for same-sex couples who marry in the states in the circuits where the stays are lifted and where additional lawsuits or actions by elected officials enable SSM, the cert denials amount to "a very strong signal that the Court's ultimate decision on SSM is a foregone conclusion in favor of invalidating state bans, because only by invalidating SSM bans would the Court avoid the uncertainty that would follow if multiple states had to deal with interim same-sex marriages that became retroactively illegal."

The harder question is what were the internal dynamics of the Court that led to the cert denials. I don't have a good answer, but I do have some thoughts about the various factors that were in play. Herewith, some rank speculation.

1) The Perry Puzzle. In June 2013, four Justices--Kennedy, Thomas, Alito, and Sotomayor--were prepared to reach the merits of a challenge to a state same-sex marriage ban in Hollingsworth v. Perry. It only takes four to grant cert, so at least one of these four must have jumped ship. Why?

The seemingly obvious answer is the difference in procedural posture. The four Justices just noted voted that there was proper Article III standing after the Court had initially granted cert and heard oral argument. These four might have thought that standing was clear in Perry but that they shouldn't use their discretion to grant cert in one of the new cases. But this answer makes little sense because at least four Justices must have voted to grant cert in Perry too, so the Court's hand wasn't forced there either.

Maybe one or more of the four or more Justices who voted to grant cert in Perry thought that a California-only rationale was available for invalidating Prop 8, so that the nationwide issue would not be before the Court. But given how skeptical the Justices were of such rationales at oral argument in Perry, this seems unlikely.

2) That leads me to think that at least one conservative who voted to grant in Perry in the hope of ruling against a right to SSM in 2013 voted to deny in all of the SSM cases yesterday in the hope of preventing a majority of the Court from ruling in favor of such a right now. One version of this theory was spelled out by Garrett Epps yesterday in his column for The Atlantic:
The four dissenters in United States v. Windsor—the Defense of Marriage Act case—may have looked around the conference table last week and realized they would never get five votes to overturn the lower courts; that is, that Justice Anthony Kennedy was committed to taking his Windsor opinion to its fullest extent. Such an opinion might not only affirm same-sex marriage; it might hold, as some lower courts have held, that sexual orientation is a “heightened scrutiny” classification, like race or sex. All laws that discriminate against gays and lesbians would be in danger then. Chief Justice John Roberts and his allies may hope that every circuit will come to the same decision, so that gay marriage will become the law without a broad Kennedy opinion upholding the rights of gays in other areas.
I think the general outline here makes sense but that the specific fear that Justice Kennedy (and four other Justices) would recognize sexual orientation as a suspect (or "semi-suspect") classification would have been unfounded. For two decades now, Justice Kennedy has been writing opinions in both substantive due process and equal protection cases that simply bypass the conventional doctrinal categories. There is little reason to think he would have changed course in a SSM case. Instead, I think that his opinion would have said--and in the event that the Court eventually grants a SSM case, will say--that state laws denying a right to SSM deny dignity and/or are rooted in impermissible animus.

3) Nonetheless, I do think that from the conservative perspective, the vote to deny was "defensive," i.e., the conservatives did not want to give the majority a chance to make what the conservatives would regard as bad law. True, by denying cert they essentially guaranteed that SSM would become the law of the land, but maybe they thought it better for that to happen without any official merits ruling by the Supreme Court. Even a decision rooted in the "animus" theory might be jurisgenerative in a way they would dislike.

4) The bigger mystery is why the liberals (including, for these purposes, Justice Kennedy) voted to deny. Depending on how quickly things move in the Circuits that have not yet ruled, cert denied is justice delayed, and so Justices who think there is a right to SSM may be delaying the ability of same-sex couples in slow-moving circuits to marry by up to a year. If one of these circuits holds that there is no right to SSM, but takes until February or later to do so, then the Court would not hear oral argument on that case until next year. At the same time, even if the appeals courts all come into line, the liberals lose something, namely the ability to enshrine a right to SSM in the US Reports: the conservatives' gain is the liberals' loss.

5) I have two possible explanations for the vote to deny of at least two of Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. First, it's possible that two or more of them thought that a ruling for a right to SSM would be at least somewhat controversial and that by ducking the issue for a year or potentially forever, they would avoid giving conservative critics of the Court additional fodder. Even another year's delay will make the eventual coup de grace easier to swallow, if it comes at all.

Second, perhaps the denial was a kind of deal. The liberals get what they really want: nationwide SSM is inevitable. The conservatives avoid having to write dissents that will make them look like bigots to their grandchildren. The Court as a whole gets a relatively peaceful Term in which hot-button cultural issues are not especially prominent. I'm not suggesting that this "deal" was explicit, but it's relatively easy to imagine how it would take shape without anybody calling it a deal.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Monday, 06 Oct 2014 11:30
by Michael Dorf

Today is the first Monday in October, i.e., the opening day of "October Term 2014" at the Supreme Court. The start of a new Term is an occasion for commentators to reflect on the state of the Court's jurisprudence overall or in particular areas, to lament some aspect of the Court's procedures (such as the refusal to permit arguments to be televised), and to preview the cases already docketed and those in the pipeline. Those are all fine enterprises, and I have tried my hand at each of them in the past, but today I want to suggest that the idea of a Supreme Court "Term" is an anachronism that should be abolished.

Lower federal courts and most state courts do not have formal terms. Instead, they are in session continuously. That does not mean that they hear cases every day, of course. Federal appeals court judges typically sit in panels for a week at a time, then retreat to their chambers to write opinions and prepare for the next sitting. Likewise, district court judges have motion days, days when they meet with counsel in chambers, days when they supervise jury selection, etc. So judges in these courts are not doing everything every day. However, they do not divide up their cases into discrete terms. They take the cases as they come.

By contrast, the Supreme Court begins hearing its cases in October and continues to hold arguments through April. It issues merits opinions throughout the Term, but finishes up by the end of June. Review granted between late September and roughly January results in a case being docketed in the current Term, whereas review granted later results in a case being docketed for the following Term. The relevant federal statute provides for this one October Term as well as any "adjourned or special terms as may be necessary," and the Court occasionally schedules special sessions. For example, Citizens United v. FEC was (re-)argued in September 2009, a month ahead of the start of the regular Term. But such special sessions are quite rare.

I favor abolishing the formal Term--and leaving the Court in continuous session--for three main reasons, which I'll list in descending order of importance:

(1) As various Justices (especially Justice Scalia) have rightly noted, cases argued in March and April are often decided in a hurry, leading to sloppy opinions. The problem is not so much the small errors that Justices occasionally make (and sometimes correct in revised versions of the opinions), as it is a failure fully to think through the consequences of a rule of law. Lawyers and lower court judges parse the language of Supreme Court opinions very carefully, so it is unfortunate that time pressure sometimes leads the Court to take less care in fashioning those opinions.

(2) Even after the Court recesses at the end of June, the Justices are available via phone and internet to act on emergency petitions, and, as noted above, in extraordinary circumstances, they will reconvene in Washington. But the fact that the Court is formally in recess from July through September may create a psychological barrier to acting in this period.

(3) The existence of a "Term" distorts public discussion of the work of the Supreme Court. Each year in late July or early August I speak at the Practicing Law Institute's one-day panel on the prior Supreme Court Term. In recent years, I have taken to prefacing my remarks with the observation that the "Term" is not the natural unit of analysis for the Court. Consider that even casebooks that adopt a historical approach to the work of the Court are not organized by Term. One might study "the Marshall Court" or "the Court during the New Deal," but it is quite artificial to study cases one Term at a time. Yet the organization of the Court's time into discrete Terms leads journalists and scholars to gather yearly and reflect on what happened the past Term. Was it a conservative or liberal Term? Why did the Court hear a large number of patent cases? Etc. Such questions would look different if focused on longer (or occasionally shorter) periods.

Having offered some reasons to abolish the Term, let me acknowledge two disadvantages of doing so. First, I think the Justices would resist the proposal because they're used to being out of session for July, August, and September. As a professor, I can hardly fault them for that preference--although I will say for the record that I am not "on vacation" when I'm not teaching; I devote myself full time to my scholarship. The justification for three months "off" for Supreme Court Justices is harder to identify, but assuming there is one, being in session continuously would not necessarily increase the Court's overall workload or the number of days each year when the Justices hear arguments.

Second, having a discrete "Term" probably plays a role in enabling the Court's tradition of disposing of all of its cases in a timely way. Eliminating the "term" designation would remove some pressure to decide cases with alacrity; this is the flipside of my point (1) above. But I think one shouldn't make too much of this point. Case management techniques adopted by lower courts control backlog and the Supreme Court has the huge advantages of a much smaller caseload and discretion over nearly all of its docket. Something like a six-month rule could be adopted either formally or informally as a means of ensuring that the Court stays on top of its docket in a post-Term world.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 03 Oct 2014 04:30
by Michael Dorf

The big news from the Supreme Court yesterday was a piece of non-news: The Court granted review in a number of cases but took no action with respect to any of the certiorari petitions presenting the question whether there is a constitutional right to same-sex marriage (SSM). I continue to think that it is extremely likely that the Court will grant review in one or more of these cases--and then "hold" the remaining cases pending resolution of the case(s) it grants. The Court could grant as early as next week or some time in the coming few months. For now, speculation centers around which case will end up as the lead case.  Does it matter?

If the question is whether the SCOTUS ruling will depend on which case the Court grants, the answer is maybe just a little. The challenged state laws vary from each other, and so arguments available in one case may be unavailable in another.  For example, most but not all states permit same-sex couples to adopt children; if the Court takes a case from a state that permits same-sex couples to adopt but not to marry, then the state will have a somewhat more difficult time advancing the "accidental procreation" argument for its SSM ban than would a different state that forbids both, due to the response made by Judge Posner in the Indiana and Wisconsin cases (as I explained here).

Nonetheless, it is difficult to imagine that such subtleties will make a difference in the bottom line: The Court will either recognize a right to same-sex marriage that applies against all states or it will not. At most, the subtle variations in the different challenged laws will affect the writing of the opinions.

What seems to be at stake in the decision of which case(s) to grant, therefore, is which attorney will have the honor of arguing for (and probably winning) the right to marriage equality. As noted in a NY Times story last month, various high-profile Supreme Court litigators are jockeying for that position. Because the lead attorney in each of those cases is a highly experienced and skilled Supreme Court advocate, and because, regardless of who stands at the podium, the arguments in play will be the same, it really doesn't matter to the outcome of the case who gets the honor of arguing it. Obviously, it matters to the respective lawyers. Each one wants to be the attorney who won the right to same-sex marriage, but this seems to me to be less of a big deal than the attorneys apparently think.

Try a thought experiment. Think about a major victory for civil rights or civil liberties in the Supreme Court. Now ask whether you can recall the lawyer who won the case. I can only come up with a pretty small handful, and even some of those probably shouldn't count.

For example, people who care about US constitutional law generally know that Thurgood Marshall argued for the plaintiffs in Brown v. Board of Education and that Ruth Bader Ginsburg argued for the Court in some of the leading sex discrimination cases, like Frontiero v. Richardson. But that probably has less to do with the fact that they were the lawyers to stand up in Court in the particular cases than that they were the chief architects of the respective legal strategies for attacking Jim Crow and de jure sex discrimination. Judged by this standard, regardless of who argues the case before the Supreme Court, Evan Wolfson or Mary Bonauto would be the leading candidate for the moniker "Thurgood Marshall or Ruth Bader Ginsburg of Marriage Equality."

Beyond Marshall and Ginsburg, it's difficult to name a lawyer who is identified as the lawyer for some famous case. Who argued for the Lovings in Loving v. Virginia? [Answer: Philip J. Hirschop]. Who argued for the plaintiffs in Reynolds v. Sims? [Answer: Richard Flowers and Charles Morgan, Jr.]. I didn't know those answers either, until I looked them up. And that's not surprising. In our legal culture, we generally identify a case with the Justice who wrote the majority opinion. Casebooks and online versions of cases usually omit the attorneys entirely.

My point isn't that generally unknown attorneys are responsible for arguing all or even most of the "big" cases. Much of the time, if you think of a big case and look up the attorney, it's someone famous. E.g., Herbert Wechsler argued NY Times v. Sullivan for the Times; Bill Kunstler (with David Cole on the brief) argued Texas v. Johnson for Johnson. But like Marshall and Ginsburg, these are lawyers who are well known for a body of work, rather than any particular case, even a very big one.

Indeed, the only clear exception that occurs to me--the only attorney who became well-known because of the role the attorney played in arguing a big case before the Supreme Court--is Sarah Weddington, who argued Roe v. Wade. But I think it's fair to say that Weddington deliberately built her career on her role in that case. I suppose it's possible that other enterprising attorneys could build their careers on the basis of the lightning strike of being the one to argue what turns out to be a landmark SCOTUS case--but it hasn't happened so far.

Meanwhile, there is downside risk for the lawyer who ends up with the lead role for the challengers. Given that most observers expect the Court to recognize a right to SSM, should the lawyer arguing for the plaintiffs stumble and lose, he or she will end up shouldering considerable blame. Indeed, even if the lawyer ends up winning the case, a poor performance in an extremely prominent case could end up harming his or her overall reputation.

Finally, I'll note that no one should want the job of defending the state laws. The cert petitions on file at the SCOTUS list three sorts of lawyers: state lawyers; private practice lawyers; and lawyers with the religious conservative Alliance Defending Freedom (ADF). I suppose that a state AG, SG, or other lawyer would be able to argue that the Court ought to defer to state law without history judging him or her too harshly. After all, a state lawyer defending a challenged law can be said to be just doing his or her job. That's a tepid defense, of course. Some state government officials have chosen not to appeal judgments invaidating state laws banning SSM, and any state lawyer who argues in defense of such a ban is at least somewhat complicit in the law.

Even so, a regular state lawyer would not go down in history as a villain in the way that a non-state lawyer who seeks out the case would. This is probably not an issue for the ADF lawyers, who believe with (literal) religious conviction that they are on the right side of the issue, even if they are on the wrong side of history. But the private firm lawyers are making a dangerous gamble that they will get a PR boost for their business from the prominent defense of a state law banning SSM. That may be true in the short run, but in the long run they may live to regret the gamble.

Enthusiastically volunteering to argue the wrong side in Brown v. Board forever tarnished John W. Davis's legacy. Thus far, no lawyer remotely close to Davis in stature has publicly announced signing on to defend the state laws. Perhaps after the Court grants, Paul Clement will be enlisted to go down swinging. And Clement may already think he has nothing to lose, having (unsuccessfully) defended the Defense of Marriage Act in the Windsor case. If so, I think he would be making a mistake. Windsor was an important case but it will be replaced as the landmark marriage equality case by whatever ruling the Court issues with respect to the state bans. By sitting this one out, Clement has a chance at rendering Windsor a very unpleasant footnote in an otherwise distinguished (albeit highly conservative) career. If he (or someone of equal stature) jumps in, he could destroy his legacy.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Thursday, 02 Oct 2014 18:19
-- Posted by Neil H. Buchanan

A year and a half ago, in a post here on Dorf on Law, I discussed some thoughts that my oldest nephew, Ross Buchanan, shared with me regarding what might be called "intramural thought policing" among movement conservatives.  Continuing with my minor dabbling in nepotism, today I will discuss some thoughts that were planted in my head by another nephew, Kevin Rigsbee, who is currently a Senior history major at the University of Cincinnati, and who also is interested in an academic career.  (One other nephew is also on the academic track, and I am sure that his Dorf on Law day will come soon enough.)

Early this past summer, I was talking with my nephews about a variety of topics, and I was particularly interested in the views of young policy/political junkies like them about our current political situation.  (My brother was also part of the conversation, but he is even older than I am, so his views don't count.)  As the conversation proceeded, we found ourselves focusing on the question of how younger Americans with political interests are responding to the emergence of the Tea Party movement and the attendant political stalemate and outright nastiness of the past four years.  Is all hope lost?  Do younger people simply think of the current parties as the only two choices that they could ever have, and that they will choose their poison in the way that people have for generations?  And within the current two-party alignment, do young people think that all hope is lost for any progress at all?

There is plenty of reason to believe that young people would unblinkingly accept the starting point that they face, and to view it as somehow natural and normal.  After all, history is so old!  Anything that happened before, say, 2008 might as well have happened during the Civil War.  Stories about a time when votes in Congress were not on pure party lines, when compromise was valued, when the filibuster was rarely used, and so on, are likely to sound like old codgers talking about the days when ice cream cones cost a nickel and the Dodgers were still in Brooklyn.

I certainly have met young conservatives whose policy views would be fully consonant with Reagan-era conservatism, which means that what they actually want to accomplish is not at all what Ted Cruz or Rand Paul wants to accomplish.  Even so, because "Republicans are conservative, and Democrats are liberal," many of these young people join up with the Republicans and snarl about the Democrats' mythical embrace of Big Government and all that.  And, as I noted in a recent post, there are always pure political hacks, young people who see for themselves a life in politics as operatives in one party or the other, who have no reason to know or care about policy but every reason to think about politics in binary, policy-vacant terms (other than slogans learned along the way about "government takeovers of health care" and other such nonsense).

This discussion then led us to make a comparison between generations.  Is it all more of the same, today as ever, with young people as a group merely going through the paces of losing their political innocence, and the drift of policy being orchestrated by forces beyond their control?  There are ample reasons for young people to be disgusted and amazed that things do not work in a logical or principled way.  But is there any difference in the broad reactions by current young people to their circumstances, compared to my generation?

After some spirited back and forth, Kevin Rigsbee captured a possible key difference in only a few words. "Your generation," he said, referring to the Baby Boomers, "became bitter, cynical, and angry, while mine has become bitter, cynical, and apathetic."  How much truth is there to that framing, and how much does it matter, if true?

Although I am on the younger end of the Baby Boom spectrum, and thus was too young to have marched on Washington against the war in Vietnam, or to have been involved in the Civil Rights movements for racial minorities or women, I have direct memories of the bitterness and cynicism to which Rigsbee refers.  The feeling was that "our parents" had screwed up the world, but that "we can change the world, rearrange the world."  (Interesting aside: The lyrics to that song include the following: "Rules and regulations, who needs them?  Open up the door."  Surely a topic for a future post.)

Partly as a matter of sheer numbers, and for many other reasons beyond the scope of this post, the anger of the young Baby Boomers quickly led to profound changes in the country.  The voting age was decreased from 21 to 18.  The Clean Air and Clean Water Acts were passed, to say nothing of the legal and social changes regarding race and gender, and all of the other things that are captured by the label "the Sixties" (much of which happened in the seventies).  The Republicans have been running against these changes for more than a generation.

So, yes, my generation (without my help) turned bitterness and cynicism into anger, and then used that anger as a transformative force in politics.  Rigsbee's juxtaposition of that productive anger with his generation's throw-up-one's-hands apathy is instructive.  Again, his generation has plenty of reason to be bitter and cynical.  If young Baby Boomers could look at the environment and be horrified, what must today's twenty-somethings think?  Moreover, whereas my generation was looking at an economy that grew quickly and shared its benefits relatively widely, young people today see rising inequality and shrinking opportunity.  And once such an atmosphere exists, it is all too easy for political manipulators to start lying to young people about Social Security going bankrupt, or "law school scams," or any other destructive idea, and to gain some traction with a disillusioned generation.

One possibility is that today's young people became apathetic because candidate Obama over-promised, allowing them to think that he could lead us to a post-partisan world.  Maybe, but other generations have been betrayed by politicians, too, and they have responded not by becoming apathetic but by finding other politicians to do their bidding.  It is also possible that the world now seems so far gone, especially on climate change, that it is simply too late to do anything.  Better to make the best of life while we can, playing our minuets while the ship sinks into the ocean.

A third (non-mutually-exclusive) explanation is that the political system seems obviously broken, in a way that it never did before now.  When Baby Boomers wanted change, there were actually people in Congress who took up their cause, and other politicians did not invariably make change impossible.  By contrast, think about what a young person would think today, if he were told that there are still some "principled conservatives" in the Republican party who could, once Obama Derangement Syndrome has run its course, be counted on to get the country back to its can-do, problem-solving ways.  Who are they supposed to think about?

As Professor Dorf commented to me in conversation the other day, there are still people who are regarded as thoughtful or moderate conservatives, but these people increasingly sound like total nut-jobs.  It is not just that the crazy right has scared off the moderates so that many old-style reasonable conservatives now end up as Democrats or even liberals (along our distorted left-right continuum, compared to other countries), but that people who were previously moderates have come to toe the crazy line.  We are not talking about people who were never reasonable or thoughtful, but who were wrongly labeled as such.  Paul Ryan is not the model here.

Instead, the people who have been thought for good reason to be principled conservatives, and who could see ways to improve matters in a bipartisan manner, have either gone away (e.g., former Indiana Senator Dick Lugar, after his primary defeat to a Tea Party candidate) or ... how to say it ... gone away.  The well deserved mockery attending Senator Lindsey Graham's insane call to send ground troops into Syria, "before we all get killed back here at home," makes it hard to take his own website seriously when it calls him "Senator Lindsey Graham - A Conservative Problem Solver‎."  Despite having once earned respect as not purely partisan conservatives, people like Graham, John McCain, and even Chuck Grassley have recently gone off the deep end.

Faced with this, how is a young person to find reasons not to be apathetic?  The people who were once plausibly regarded as thoughtful moderates could fall into one of three categories: (1) They were actually deep-down crazies who were toeing the non-crazy line until they could come out of the closet.  (2) They were non-crazy, but by toeing the crazy line for a few years, they have become true crazy believers.  (3) They are non-crazy, but they are doing what they can to get along in a crazy world.  Hopeful people of all ages dearly want to believe that the third explanation is true, but the more we see of McCain, Graham, Grassley, and the others, the more #1 and #2 seem more likely.

In short, I think that, as a descriptive matter, Rigsbee is correct that the two generations in question each had good reasons to be cynical and bitter, and that the two generations differ in how they processed those emotions into productive anger (my people) or unproductive apathy (his people).  As a predictive matter, I do not see much reason for hope.  It is not, after all, that post-millenials (or whatever we are calling them this week) were born apathetic.  And it is not even that the problems are so much bigger now.  (Yes, climate change is huge, but the social changes wrought by the Sixties were rather enormous, too.)  The political system is broken, and it seems that every day the Supreme Court and other institutions do their best to make the system less democratic.  Who would not respond to all of that with cynicism, bitterness, and apathy?
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 01 Oct 2014 12:30
by Sherry F. Colb

In my Verdict column for this week, I discuss protests against the practice within some ultra-Orthodox circles of using a live chicken for the ritual of Kaporos.  The ritual precedes Yom Kippur and symbolically transfers the penitent's sins onto a hen or a rooster, who is then slaughtered.  

Protesters have condemned the cruelty involved in the ritual.  In my column, I analyze the nature of the protests and suggest that they could inadvertently serve to enable and encourage hypocrisy and bigotry by those who daily consume the products of animal torture and slaughter -- the flesh (meat) and the lacteal of ovulatory secretions (milk and eggs) of mammals, birds, and fishes -- but who want to believe that they can credibly rail against the animal cruelty of a small minority of the population.

When I was clerking for Justice Blackmun, the case of Church of Lukumi Babalu Aye v. Haileah came before the U.S. Supreme Court.  The Court had recently announced, in Employment Division v. Smith, that Native American users of peyote for religious riturals had no First Amendment right to religious accommodations from the government in the form of exemption from otherwise generally applicable drug laws (but see a different perspective in Burwell v. Hobby Lobby Stores).  The Court explained in Smith that the Free Exercise of religion protects members of a religious group only from discrimination against them on the basis of religion but not from the adverse impact of a generally applicable law.  

In Church of Lukumi, practitioners of Santeria claimed that a Hialeah, Florida, city ordinance that prohibited animal sacrifice violated their Free Exercise rights because the city, which claimed to be addressing animal cruelty through its ordinance, in fact singled out the petitioners for their religious practice while leaving alone and even affirmatively endorsing other forms of animal cruelty by the general population.  The petitioners prevailed, and the Supreme Court struck down the Hialeah ordinance.

At the time this case came before the Court, I inferred from the structure of the Florida law under consideration that the people of the City of Hialeah were deliberately targeting members of the Santeria faith rather than sincerely trying to protect animals from harm.  After all, if Floridians were really concerned about violence against animals, they would not have entrenched a state constitutional right to hunt and would also stop the daily cruelty of animal farming more generally.  The professed concern about animals was, to my mind, therefore bogus.

Looking back on the Hialeah ordinance now, however, I think I might have partially misjudged the people of Hialeah.  They did, of course, evidence anti-Santeria prejudice, and I would not give them a free pass for that bigotry.  My guess at this point, however, is that the people who created the ordinance in question really did feel repelled by the animal cruelty that they witnessed in the streets, when people sacrificed goats, chickens, and other animals for religious reasons. Most of us do not regularly see animals being slaughtered for any reason, so we (or at least those of us who have not already been desensitized to such violence) would likely find such a spectacle extremely disturbing if we did witness it, and we would find it disturbing in large part because animals were suffering tremendously.

What does this tell us, then?  I think the word "hypocrite" captures well what it tells us.  The word literally means one who is insufficiently critical.  If John criticizes a member of the Santeria faith for sacrificing a chicken, but he then turns around and eats a slaughtered chicken or an egg -- and thereby registers his support for the slaughter of more chickens -- John is being insufficiently critical of animal cruelty. In particular, he is criticizing members of the Santeria faith for their animal cruelty while remaining complacent about his own.

I think it is useful to think of this as literal hypocrisy rather than, say, as an instance of being "hypercritical" (or as "hypercrisy").  If it were hypercrisy, it would mean that John does not actually care about animal cruelty (as evidenced by his consumption of animal products) but that he is being critical of the Santeria practitioners for the sake of being critical or exclusively out of some prejudice against an unfamiliar group.  Under the hypercrisy model, the proper stance for John would be to stop criticizing Santeria. Once he did that, he would have achieved the correct equilibrium, in which he criticizes neither himself nor those belonging to an unfamiliar religious group, a kind of "homeostacrisy."

On a hypocrisy approach, however, we would acknowledge that what happens to the animals during animal sacrifice is terribly wrong but that we must take a closer look at our own conduct toward animals and stop hurting them ourselves rather than exclusively condemning others for their wrongdoing. Invalidating the Hialeah ordinance as hypocritical, then, occurs because the ordinance does too little, not because it does too much (although either under- or over-inclusiveness makes a law suspect under an equality analysis).  

To give a different example, consider the period after Michael Vick was first charged with cruelty for what he did to the dogs in his custody.  People were extremely angry at him, and quite a few people who lived in my neighborhood in NYC at the time approached me with petitions aimed at condemning Vick and urging harsh treatment of him by the criminal justice system.  

Thinking back, I have no doubt at all that the people expressing anger and circulating petitions were honestly and sincerely horrified by the cruelty that Michael Vick had perpetrated against his dogs.  It would be false to say that these people were just looking for an excuse to criticize Michael Vick.  

Yet most of the people circulating petitions and declaring their outrage were simultaneously consuming animal flesh and secretions and thereby participating in violence just as great against animals just as vulnerable and capable of suffering as Michael Vick's dogs.  Such people were accordingly engaged in hypocrisy (for failing to take notice of their own misconduct) rather than hypercrisy (for condemning Vick's animal cruelty at all). 

The remedy for hypocrisy is to look in the mirror and take in the fact that one is doing exactly the sort of thing that one is condemning another person or group for doing.  This is what I found myself taking in when I had stopped consuming mammals but had continued to consume birds, when I stopped consuming birds but continued consuming aquatic animals, and finally, when I realized that being a lacto-ovo vegetarian implicated me in horrific violence against mother cows, baby calves, hens, and roosters.  

Returning to the issue that began this post, I believe that most of the people condemning the practice of using chickens for Kaporos are honestly and truly upset to see the suffering that the ritual inflicts on innocent birds. They are accordingly not hypercritical (or, to use my new word, "hypercrites"), as they have in fact identified something that is morally reprehensible to condemn.

But if they do not simultaneously condemn -- or at the very least stop engaging in -- the violence of animal agriculture, then they are hypocrites, people who are insufficiently critical of misconduct that they most clearly see when they are not personally invested in perpetuating it.  Hypocrites would do best to expand their critique to their own behavior, particularly at a time of year associated with atonement and renewal.  Now would be a most auspicious time for people to undertake the removal of animal products -- the wages of animal torture and slaughter -- from their lives.  If we want a world in which others refrain from violence, committing to becoming vegan is really the least we can do. 
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Tuesday, 30 Sep 2014 15:15
-- Posted by Neil H. Buchanan

A colleague recently forwarded to me a link to a law student note, Unconstitutional Debt Ceilings, 103 Georgetown L. J. Online 29 (2013), in which a 2013 Michigan Law graduate provided a short argument to the effect that the federal debt ceiling is unconstitutional.  Because Dorf on Law brings in new readers all the time, I cannot presume that everyone reading this post is aware that Professor Dorf and I have written a series of academic articles, Verdict columns, and blog posts regarding the debt ceiling, in which we emphatically reach the same result.  (I also published a book on the subject last year: The Debt Ceiling Disasters.)  I thus read the student's note with interest.  [Note: I initially misread the star-footnote, thinking that the author of the note had been a Georgetown Law student.  Although I went to Michigan, my mostly positive assessment below was formed when I thought that the author attended GW's cross-town rival.  So there was clearly no "homerism" involved.]

The note does not cite any of the Buchanan-Dorf scholarship.  I say that not to be grumpy, but because it means that the note provides an opportunity to watch someone reinvent the wheel, and then to compare his wheel with ours.  (The oversight is surprising, however, because the one thing that I thought I knew about law review editors is that they are obsessive about preemption checks.)  It was interesting to read the note and to watch how the author struggled with the various issues, beginning with the 14th Amendment argument and then working his way toward an argument that looks very much like a preliminary version of our "trilemma" argument.  (Readers who are unfamiliar with that argument can find a brief version of it in this Verdict column from early 2013.)

Working without reference to any existing legal literature is not easy, and the author of the note inevitably makes a few errors.  He frequently makes gratuitous, and inaccurate, statements about how terrible government debt is.  That, however, is more a matter of a law student making unschooled statements about economic issues.  A much more important error, however, is this argument (on p. 35): "When debt increases faster than GDP, the country becomes more highly leveraged, endangering the government's ability to repay its debt" (emphasis in original, footnote omitted).  This is simply not correct, because U.S. federal debt is denominated in dollars, which the U.S. government can create.  No amount of debt endangers the government's ability to repay the debt.  Excessive debt creation can have other effects, such as causing inflation to increase (as the note points out), but that is a very different issue.

Still, the author of the note is merely replicating an error that Professor Tribe committed in his original 2011 NYT op-ed regarding the debt ceiling, and which Tribe subsequently repeated in his mini-debate with me here on this blog.  So, if a law student is going to make a fundamental analytical error, he could do worse than repeating an error that was committed by one of the top legal scholars in the country!  A similar excuse is available for the author's acceptance (in the same paragraph) of the idea that the Standard & Poor's downgrade of U.S. debt in 2011 was caused by "excessive debt," an argument that the author simply repeats from a Bloomberg magazine article.  True, S&P talked a lot about high debt levels, but the downgrade was caused by the debt ceiling-related political circus, not by any change in the government's debt forecast (since the debt forecast had actually just been revised downward).

Still, the note is quite valuable, especially because the author did some very good research and found wonderfully on-point quotations from two Supreme Court cases, supporting the idea that the debt ceiling cannot be used to change the spending decisions made by Congress.  As Professor Dorf and I have argued, one of the fundamental reasons that the debt ceiling must give way to the spending laws (and the tax code) is that the political balancing act that creates spending legislation is the essence of representative government.

The note quotes Justice Kennedy, from Office of Personnel Management v. Richmond, 496 U. S. 414 (1990), arguing that the Appropriations Clause's "fundamental and comprehensive purpose ... is to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents or the individual pleas of litigants."  Similarly, the note explains that Clinton v. City of New York, 524 U.S. 417, 439 (1990), prohibits "unilateral Presidential action that either repeals or amends parts of duly enacted statutes."

Thus, as we have argued, the claim that the President can merely "prioritize" spending, if the debt ceiling becomes binding, is wrong.  (As a matter of politics, it is amusing to note that the House Republicans' lawsuit against President Obama claims that he wrongly chooses to execute only parts of laws, not the laws in their entirety.  I will surely write about that issue again in the near future.)

Therefore, although the note is too short to cover the issues in depth, and the author makes a few errors along the way, it is a valuable addition to the small canon of work on the debt ceiling that has emerged in the last few years.  Indeed, Professor Dorf and I have frequently noted the lack of substantive engagement with our arguments, and we thus welcome such work, even if the engagement is only indirect.

Unfortunately, another recent article to have come across my desk is far less laudable.  In 31 Yale J. on Reg. 269 (2014), a business law professor is aware of our first article (or at least its title), but things quickly go awry: "Two legal scholars have argued that [issuing debt in excess of the debt ceiling] is one of the 'least unconstitutional' options.  The problem, however, is that this option may not be constitutional at all, and even if it is, the resulting uncertainty will be costly.  The Fourteenth Amendment does not explicitly authorize the executive branch to borrow to avoid default. Nor does it appear to provide any implicit authorization: its provision prohibiting the government from questioning the 'validity' of its public debt was historically included solely to prevent a southern Democratic majority from repudiating Civil War debts."

Where to begin?  (1) We did not argue that exceeding the debt ceiling is "one of" the least unconstitutional options.  We called it the least unconstitutional option, and we explained why that was so.  (2) Everyone knows that "uncertainty will be costly," but the question is whether it will be more costly than the alternative -- the first-ever default by the federal government.  Calling it "costly" says nothing.  (3) No one would ever say (and we certainly have not) that the Fourteenth Amendment authorizes borrowing -- much less explicitly.  (4) The Civil War debt history does not prevent a constitutional provision from being applied to other circumstances.  And in our most recent article, we show that even the narrowest version of the "repudiation" argument ends up supporting the idea that the debt ceiling cannot be used to justify defaulting on scheduled payments.

The bottom line, unfortunately, is that there is nothing new to report about debt ceiling scholarship.  One mostly good and one not-so-good addition to the very thin pile of articles have not changed the bottom line: Both Obama and the Republicans are wrong, with the Republicans being more wrong for having started this craziness.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 29 Sep 2014 04:30
By Michael Dorf

In a terrific essay in The Atlantic last week, Garrett Epps took the opportunity of the lull before the start of the Supreme Court Term to note the seeming perversity of the Roberts Court's views about how to define vulnerable minorities in need of judicial protection. Juxtaposing the results and reasoning of last Term's decisions in McCutcheon v. FECTown of Greece v. Galloway, and Schuette v. BAMN, Epps notes that the conservative majority seems to think that "rich people and Christians are minorities, but [racial] minorities are not." Of course, these cases involve different doctrines and it's possible to construct an argument for each result without exactly contradicting any of the other results, but still, the pattern is arresting.

Here I want to examine a premise of the analysis Epps provides--that it is the special role of the courts to look out for vulnerable minorities. That view was given its canonical form in footnote 4 in the 1938 Carolene Products case, and later developed at length in the work of John Hart Ely, especially his book Democracy & Distrust (D&D). In a 2005 paper in the Yale Law Journal I called D&D "the single most perceptive justificatory account of the work of the Warren Court and arguably of modern constitutional law more broadly." I continue to think that, but I wonder whether the conservatives wouldn't really rather be rid of the Elysian cast of constitutional law.

Liberals for the most part embraced Ely at least half way. They argued that Ely's argument for judicial review that is "representation reinforcing" was insufficient to show that this was the only role of judicial review. But they agreed that this was an important role for judicial review.

By contrast, it is not clear to me that conservatives ever embraced Ely's views more than opportunistically. In academic work, originalists attacked Ely's views as ahistorical. In the courts, conservatives were happy enough to invoke Ely's critique of Roe v. Wade and modern substantive due process more broadly, but in rejecting Ely's views about affirmative action in favor of "color-blindness," they rejected the core of his theory: Treating majority-disadvantaging laws as indistinguishable from minority-disadvanting ones is virtually impossible to reconcile with Ely's broader theory.

Nonetheless, even if judicial conservatives would rather construct constitutional doctrine on non-Elysian grounds, the basic fabric of modern constitutional doctrine--here and in other constitutional democracies--takes for granted that protection of minorities is a central purpose of judicial review. As Judge Posner put it in the 7th Circuit SSM case, "minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law."

Is there a serious argument that rich people and Christians are the sorts of groups whom the courts should protect under the rubric of minority rights? I'll put aside Christians to focus on rich people. Conservatives certainly believe that rich people are vulnerable minorities--and if one thinks about the matter in originalist terms, they have a point.

The Federalist Papers repeatedly bemoan the evil of paper money printed by the States under the Articles of Confederation for exactly the reason one would expect the wealthy to object to such policies: fear that the increase in the money supply would favor poor debtors at the expense of wealthy creditors. One need not subscribe to the conspiracy theory of the Constitution made popular by Charles Beard--who saw the Constitution chiefly as the reactionary tool of the moneyed classes--to recognize that much of the protection for "minority rights" in the 18th century Constitution aimed to protect the minority of the wealthy against confiscation by the rabble.

But whatever the merits of a wealthy-protective approach to the Constitution on originalist grounds, since 1937 that view has been rejected as a matter of official doctrine. Indeed, the whole point of the Carolene Products footnote is that special judicial solicitude for "discrete and insular minorities" stands as one of a small number of exceptions to the general rule that laws regulating the economy--including those that can be said to disadvantage capital in favor of labor--are to be presumed constitutional. So a general disposition towards treating the wealthy as a suspect class cannot be reconciled with Elyism, without the exception swallowing the rule.

And indeed, conservative judges and justices appear to get this. That's why, despite repeated calls for reviving Lochner by some conservative academics, no Justice has expressed interest in doing so.

BUT to say that the wealthy are not a discrete and insular minority is not to say that they are entirely fair game. After all, both the Carolene Products footnote and D&D's defense of it list other exceptions to the presumption of constitutionality. The footnote refers to the Bill of Rights generally, while Ely paid special attention to the First Amendment, for which he thought robust judicial protection was essential to ensure the proper operation of the political process. And so we come to campaign finance regulation, which has been limited by the Court's First Amendment jurisprudence. How does campaign finance regulation in particular fit within Ely's views?

In her 2012 Harvard Law Review ForewordPam Karlan explains how, depending on how one approaches the matter, the Court's campaign finance cases could be understood as either an application of Ely's more general views about free speech or, as backwards. She notes that campaign finance regulation itself could be seen as fulfilling the Elysian goal of clearing the channels of political change by reducing the distorting impact of money on the domain of politics.

In a response in the online Harvard Law Review Forum, Steven Calabresi is less equivocal. He says that Karlan gets Ely wrong with respect to campaign finance:
Karlan criticizes the Roberts Court for its decision in Citizens United v. FEC . . . but even she concedes that Ely had criticized campaign finance laws out of concern that “the Burger Court was balancing away freedom of speech that the Warren Court had protected more robustly.” The whole complaint about campaign finance laws is that they protect incumbents from well-financed challengers. It would thus be hard to imagine a more clear-cut case where Ely’s theory of judicial review would be applicable than with campaign finance cases.
It's true that some Justices who view campaign finance regulation with suspicion sometimes express the worry that these restrictions serve as a kind of incumbent protection, but that is hardly "the whole complaint." In McCutcheon, for example, the word "incumbent" appears exactly once, and that's in the Appendix to Justice Breyer's dissent. The majority opinion of CJ Roberts focuses chiefly on how the aggregate campaign contribution limits constrain the right of private donors to "participate in electing our political leaders" by giving money to candidates. Is special juidical solicitude for donor-side rights justifiable in Elysian terms?

If the question is whether the rich need the courts' help in protecting their own interests because they lack political power, the answer is obviously no. But perhaps that's because the rich have political power only in virtue of their ability to buy elections. If they couldn't buy elections, then the mass of the middle and lower classes would use the franchise to secure redistribution. So, in this view, when the outcome of the legislative process disadvantages the rich, there's no great need for judicial worry because the rich can take care of themselves through the political process. But if government starts tinkering with the ability of the rich to influence the political process itself, then the rich will no longer be able to protect their interests via politics. In doctrinal terms, the continued vitality of the New Deal Settlement--most centrally the overruling of Lochner--necessitates rulings like McCutcheon and Citizens United.

In case there's any doubt, let me be clear that I do not hold the view articulated in the previous paragraph. It seems to me most dubious in assuming the purchase of politicians by the wealthy as an unproblematic baseline. To my mind, even in a regime of campaign finance regulation, the wealthy would not be entitled to any special judicial solicitude, because while they would be unable to exert outsized political influence, they still would not be especially disadvantaged in the political process.

But I nonetheless wonder whether the view I have just articulated might explain how at least some of the conservative Justices on the Roberts Court think: To the extent that they take the D&D paradigm seriously, they see the need to protect the rights of the rich to influence politics through money as a lynchpin of the existing constitutional order.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 26 Sep 2014 13:23
-- Posted by Neil H. Buchanan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Except when Putin does it.

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

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

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

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

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

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