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Date: Tuesday, 18 Mar 2014 11:30
by Eric Segall

Last week in Atlanta, the Georgia bar celebrated the 225th anniversary of the United States Constitution by holding a hall of fame legal conference.  The participants included Supreme Court Justice Antonin Scalia as well as appellate heavyweights Richard Posner and Alex Kozinski, and a bevy of our most prominent constitutional law professors, commentators, and Supreme Court reporters. Although there were many themes to the conference, the most consistent thread was the tension between those who believe in a “living” constitution and those who believe in a Constitution defined by its “original meaning.”

The proceedings began with ultra-liberal Erwin Chemerinsky and arch conservative Richard Epstein debating whether the Constitution is dead or alive. Chemerinsky observed that if the Constitution only has the meaning it did when ratified, then racial segregation in public schools would be constitutional, women would not have equal rights, and Congress would be disabled from passing minimum wage laws and overtime regulations.  Epstein emphatically denied that a dead Constitution would lead to racial segregation or the denial of equal rights for women, but he was positively giddy about the idea that Congress would be deprived of most of its power to regulate the national economy (and didn’t deny such would be the effect of a “dead” Constitution).

Chemerinsky insisted that everyone, including Justices Scalia and Thomas, as well as Epstein himself, believes in a living Constitution when it suits them to do so.  Though Epstein denied the charge, he gave the game away when he said that all regulations that reduce the value of a person’s property constitute a takings under the 5th Amendment and require just compensation from the government.  I don’t know if such a radically private property protective world would be better or worse for our economy, but it is much more in line with an imaginative future than any recognizable past.

The second day of the conference brought together Supreme Court reporters and bloggers.  Amy Howe justifiably lamented that SCOTUS Blog doesn’t have a media pass to the Supreme Court (an absurd oversight by the Justices given the Blog’s important role in covering the Court).  Adam Liptak of the New York Times had one of the best one-liners of the three days when he responded (politely) to a question from Georgia Supreme Court Justice David Nahmias who was concerned about how judges are covered in the media.  Liptak said in a dead pan voice, “if we get a leak that is news worthy and if that makes your life more difficult that is of absolutely no concern to me."

Both Liptak and Howe agreed that television cameras should be allowed in the Supreme Court, but warned everyone present not to hold their breath.

The afternoon of the second day brought a panel on the Second Amendment (which I organized) and another heated conversation about how judges should go about interpreting a document ratified when it took a full nine seconds to load a gun to fire a single bullet. Nelson Lund suggested a robust reading of the Second Amendment strongly protecting gun rights. Sandy Levinson and Adam Winkler argued that the private right to own guns should be protected, but they would allow the right to be over-ridden by most reasonable legislation, and I argued that Judges Posner and Wilkinson have persuasively made the case that the Second Amendment should only apply to the militia, meaning not at all. We all found common ground, however, and unanimously agreed that the Court’s reasoning in its landmark gun case, DC v. Heller was unpersuasive, inept, and completely oblivious to the most relevant and important history of the Second Amendment.

On Friday the really big guns came out. First Judges Posner and Kozinski, along with Justice Nahmias, talked about what it is like to be lower court judges who have to wrestle with Supreme Court precedent. Whether the Constitution is dead, alive, or something in between, they all agreed that they have a duty to apply it as the highest Court tells them to, but they also agreed that in real life rarely did the Court issue a decision that was clear enough for them to actually follow.

Judge Posner made his usual case that judges often have discretion when deciding cases and that facts and consequences should matter much more than legal rules and prior cases.  He also quipped that “there is nothing as ridiculous as the canons of construction, other than the Blue Book,” referring to the writing manual law students see in their nightmares.

Judge Kozinski told a long and eloquent story about the trials and tribulations of trying to decide between deciding a case the way the Supreme Court did a long time ago, or trying to predict whether the Justices will veer from that old law in the next case.  He persuasively suggested that trying to figure that out is a fool’s errand (a lesson most of us should take to heart).

Justice Scalia was the last person to take the stage.  For about forty minutes, he ranted and raved about how liberals “don’t really want a living Constitution, they want a dead one where rights apply everywhere,” and how “abortion, same-sex sodomy, and (maybe) assisted suicide” were not protected then and therefore “shouldn’t be protected now.” His diatribe about the evils of a changing Constitution may have been more persuasive had he explained exactly when in our history corporations became people whose first amendment speech rights made them immune from campaign finance reform.

Justice Scalia delivered a number of interesting and entertaining one liners:

"Everyone was an originalist before the Warren Court.  Judges distorted the Constitution the old fashioned way-they lied about it."

"I don't have to be a historian; I just have to be a judge who can tell the good from the bad.”

"Congressional committee reports are signed by no one and probably written by a teenager."

"That question is a softball ... it reminds me of my confirmation hearing where Strom Thurmond asked me what I thought of judicial activism."

That last line came while Scalia was answering written, prescreened anonymous questions. The very next unsigned question was one that I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case (Shelby County v. Holder) which announced a brand new constitutional principle-that Congress could not treat different states differently without a really strong reason-given that this limitation is nowhere in the text of the Constitution nor supported by its original meaning.  Scalia fumbled a bit, said he didn’t read the case that way, and then asked who wrote the question.  I was sitting in the front row and made eye contact with the moderator to see if he wanted me to identify myself. He motioned for me to rise so a microphone was brought over and I nervously repeated the question. I don’t often argue with Supreme Court Justices in front of a full house. Scalia again fumbled, and then said I read the case wrong and the decision only required a rational basis (not a strong reason) for Congress to treat different states differently. I will let history be my judge on this dispute (I’m right) but I was most interested to hear Scalia go on to say that, even if Congress had a rational basis for treating different states differently at the time of the Civil War, that rational basis no longer exists in today’s United States, so the Shelby County Court was correct to rule the way it did. In other words, what “equal state sovereignty” meant in 1868 is very different than what it means today, as a matter of constitutional law.

I agree with Scalia’s approach, and would use the same method of interpretation for principles like “equal protection of the law,” and “cruel and unusual punishment,” and the living Constitution lives on for at least another day.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Monday, 17 Mar 2014 11:00
By Mike Dorf

Late last year, I blogged about the then-proposed King Amendment to the Farm Bill, which would have precluded states from regulating agricultural products more strictly than sister states.  The amendment was not enacted but a pending federal lawsuit--originally filed by Missouri but now joined by four other states plus the governor of a fifth, aims to achieve through litigation the core of what the King Amendment aimed to achieve through legislation.  According to the amended complaint in Missouri v. Harris, California cannot legally enforce its law forbidding the sale of eggs produced by methods other than those approved in Proposition 2 by California voters in 2008.

In 2008, California voters approved Prop 2 by a nearly two-to-one margin. The provision regulates the conditions of confinement of animals raised for food in California, requiring that each animal be given sufficient room to lie down, stand up, turn around, and spread his or her limbs. Thus, effective in 2015, California will no longer permit gestation crates for pigs, veal crates, or battery cages for hens.  In 2010, California enacted a law that forbids the in-California sale of eggs produced anywhere, unless they were produced in accordance with the same standards as those that implement Prop 2. The lawsuit by Missouri et al challenges that application of California standards to eggs produced outside of California on grounds that it violates the dormant Commerce Clause and/or is pre-empted by the federal Egg Products Inspection Act.

Regular readers of this blog know that I am ambivalent about such regulations. If animal agriculture is inevitable, then I think that measures like Prop 2 are marginally better for the captive animals than leaving the industry unregulated because such measures do reduce suffering a little--although even the pigs, cows, and chickens raised for food under so-called humane conditions are subject to horrific suffering. Perhaps campaigns for laws like Prop 2 raise consciousness more generally, so that people who voted for Prop 2 in 2008 will come to value animal interests more broadly and eventually stop participating in the mistreatment and killing of animals. But there is also the possibility that the marginal improvements like Prop 2 reassure people who really do care about animal interests that they can eat their bacon cheeseburgers with a clean conscience. In my view, the question of whether measures like Prop 2 ultimately do more harm than good is a complex empirical one about which we do not have sufficient information to reach a definitive conclusion.

All of that is by way of full disclosure: As a critic of Prop 2 from "the left", as it were, I have less of a moral investment in its surviving a legal attack than one might think. Put differently, I'm interested in this topic chiefly as a constitutional law scholar, and only secondarily as a vegan.

The complaint cites various bits of the legislative history of the California legislation to show that the purpose of extending Prop 2 to out-of-state egg producers was to "level the playing field." Complying with Prop 2 will substantially increase the capital cost and somewhat increase the marginal cost of egg production, and thus absent the legislation applying the same standards to out-of-state producers, Prop 2 would confer a competitive advantage on the out-of-state producers. Accordingly, the complaint alleges that the legislation is protectionist in violation of the anti-discrimination norm of the dormant Commerce Clause.

The law itself cites a health purpose, not a protectionist purpose.  The law cites a Pew Commission report stating that animal products pose fewer risks to human health when the animals producing those products are treated well. The complaint alleges that the health benefits of the law are illusory, pointing to studies that reach different conclusions, and arguing that, in any event, the health justification was pretextual in light of the legislative history.

This claim strikes me as weak. The law is not facially discriminatory. It imposes the same standards on all eggs offered for sale in California. Thus, the burden will be on the plaintiffs to show that their health studies are clearly right and California's studies are clearly wrong. To the extent that I have a view about this matter, I think I'm probably closer to that of the plaintiffs, but for reasons that they will hardly like and certainly wouldn't introduce in evidence.  Namely: The harmful effects of egg consumption on human health are so large that it's hard to take seriously the state's asserted interest in human health, even if Prop-2-compliant eggs are slightly less dangerous to humans than non-Prop-2-compliant eggs.

But even if the plaintiffs succeed in showing that the real purpose of the legislation was to "level the playing field," that does not count as a discriminatory purpose where, as here, the field is being leveled from a point that is made unlevel by another California law. Suppose that a certain kind of bean grows fastest in soil that is naturally found only in Missouri. If California were to enact a law that requires that sort of bean to be grown in the inferior kind of soil found in California, that would be a de facto protectionist measure.  Although neutral on its face, the law would simply aim to take away an advantage that Missouri beans naturally enjoy.

By contrast, where, as here, another provision of California law confers an advantage on out-of-state egg producers, a law that "levels the playing field" in the sense of applying the same standards to out-of-state egg producers yields equal treatment.  That's why the Ninth Circuit rejected the same sort of argument when brought by out-of-state foie gras producers who challenged the state's application of the same standards to them as applied to California producers under a different statutory provision.

The foie gras decision also pretty much disposes of the other dormant Commerce Clause claims--that the law unduly burdens interstate commerce and that it regulates extraterritorially. The standard for winning a challenge to a neutral law on the ground that it unduly burdens interstate commerce is very high: the plaintiff must show that the burden on interstate commerce clearly outweighs the law's in-state benefits.  The plaintiff states have studies showing high compliance costs but (much to my chagrin), these somewhat higher production costs may well be offset by the marketing opportunity provided by shifting their facilities to "humane" egg production. The key point here, though, is that "undue burden" dormant Commerce Clause challenges rarely succeed.

Likewise, the claim that the California law regulates extraterrititorially is both precluded by the foie gras case and by basic logic. Any state law that imposes product regulation that takes the form of limiting the sale of an item produced in a certain manner would be invalid under the plaintiffs' theory, but that is plainly not the law.

The plaintiffs have a better argument that the California law is pre-empted by the federal law, but here too I think they should lose. The key statutory language provides that "no state or local jurisdiction may require the use of standards of quality, condition, weight, quantity, or grade which are in addition to or different from the official Federal standards." The plaintiffs say that if the California law is a health measure, and thus doesn't fail the nondiscrimination test of the dormant Commerce Clause, then it is pre-empted as an additional "quality" standard that differs from the federal standard.

I think that argument would work if the California law only aimed at protecting human health. But the law's obvious purposes include the promotion of (or, in my view, the marginal reduction in assaults on) the welfare of egg-laying hens. And the text of the California law says: "It is the intent of the Legislature to protect California consumers from the deleterious, health, safety, and welfare effects of the sale and consumption of eggs derived from egg-laying hens that are exposed to significant stress and may result in increased exposure to disease pathogens including salmonella." (Emphasis added).

The linguistic context of that sentence suggests that the law aims at human welfare, and if so, then it would appear to be a "quality" standard that falls within the scope of federal pre-emption. But it is very hard to figure out how human welfare is enhanced by better conditions for laying hens, apart from health and safety, which are also part of the law's purpose. Thus, I think that read in the overall context, the California law has animal welfare as one of its central purposes. And as such, it strikes me that the law is not pre-empted, because the federal Egg Products Inspection Act is not concerned with animal welfare at all.

But does California have an interest in promoting animal welfare in places outside of California? Is promotion of that interest really an effort to regulate extraterritorially in violation of the dormant Commerce Clause after all? I think the pretty clear answer here is no.  Last year the Ninth Circuit upheld California's fuel standards against (among other things) a claim that in regulating based on carbon intensity, California was regulating extraterritorially in violation of the dormant Commerce Clause.  As in the foie gras case, so too in the carbon tax case, the court affirmed the proposition that a state can validly assert an interest in the process by which a product sold in the state has been produced--even if the production process occurred out of state.

So, on the merits, it looks like the plaintiff states should lose their challenge.  I would note two caveats, however.  First, the court may not reach the merits because there are threshold questions of standing and ripeness.  Second, the plaintiffs do have one somewhat stronger claim that the California legislation discriminates against out-of-state egg producers in that California egg producers were given seven years to reconfigure their plants in order to bring them into compliance with Prop 2, but that the out-of-state producers were only given five years to reconfigure their own plants (because the legislation came two years later than Prop 2). If this is a valid claim, then, pursuant to the law's severability clause, it would entitle the out-of-state producers to an extra two years to comply with the law; it would not result in the law's invalidation.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 14 Mar 2014 13:00
-- Posted by Neil H. Buchanan

How long will the Tea Party wait for satisfaction?

There was no political brinksmanship regarding the debt ceiling last month, with the House Republican leadership allowing a vote which resulted in the suspension of the debt ceiling until next March 15.  Does that mean that Professor Dorf and I have misspent almost three years of our middle age, devoting large chunks of our time to writing legal analyses about an issue that was ultimately dealt with -- however haphazardly -- by the political system?

Hardly.  There is plenty of legal scholarship written in anticipation of possible legal problems that have not yet come to pass.  For example, good work has been done (see, e.g., here) on proposed balanced-budget amendments, even though Congress has not (yet) passed such an amendment.  (Self-interest alert: I will probably write an article about balanced-budget amendments sometime soon.)  Given that there is still a debt ceiling statute, and Republicans could go back to their hostage-taking strategy at any time, it is important to have a body of work out there that could (unfortunately) become relevant.

In any case, the fourth Buchanan-Dorf Columbia Law Review piece is now finalized and available here.  I summarized the arguments in that piece in a Dorf on Law post back in January, describing how even a non-trilemma-based analysis leads to the conclusion that the debt ceiling statute is unconstitutional.  The short version of our argument is that, even if the President defaults on some obligations as they come due, in an effort not to exceed the debt ceiling, we will in fact exceed the debt ceiling, because we will have forced the people to whom we were supposed to pay money to wait to receive their funds.  That is, we will have forced them to lend money to the government.

Note that I say "we," as in the American people, rather than "he," as in the President, because in fact it is Congress that will have exceeded the debt ceiling by passing spending and taxing laws that require either issuing Treasury debt or forcing obligees to lend money to the government.  Nothing the President can do would prevent the government from exceeding the debt ceiling, given Congress's actions.

Because of the agreement to suspend the debt ceiling through March 15, 2015, this issue will not be politically relevant for at least another year.  The question is whether the Republicans will, in fact, try at that point again to extort policy concessions from Democrats by threatening to force the government into default.  Professor Dorf has expressed his educated guess that "[r]eports of the debt ceiling's demise are, alas, exaggerated."  Even so, some pretty savvy political observers disagree, such as Greg Sargent of the Washington Post, who argued last month that "GOP debt limit extortion is dead."

Sargent could be right.  It could be true that the establishment Republicans have decided that the Tea Party cost it too much credibility in last Fall's government shutdown debacle, and that playing with the debt ceiling has become unacceptable.  Indeed, three years ago I asked whether the Republican money men were regretting enabling the inmates to take over the asylum.  It is certainly possible that the last three years have broken the fever on the debt ceiling.

Like Professor Dorf, however, I doubt it.  For one thing, there is no sign that even the supposedly centrist players ever really understood what was going on.  For example, in the lead-up to last month's non-drama, the Center for a Responsible Federal Budget -- a deficit-scold organization that is a solid part of the Washington establishment -- issued a Q&A about the debt ceiling that continued to conflate the debt ceiling with the debt itself, using the opportunity to say that the debt ceiling must be increased, BUT that increases in the debt ceiling often have been (and should be) combined with spending cuts.  (They misunderstand the history on that point, but that is irrelevant for current purposes.)

In other words, although they tut-tutted and did not endorse actually failing to increase the debt ceiling, they essentially approved of using the debt ceiling to extract more spending cuts from Democrats.  This must mean that they liked the 2011 capitulation by the White House that led to so much subsequent harm.  So, without actually calling for extreme tactics, the "responsible" budget people are on the record as saying that the White House's call for "clean" debt ceiling increases is not the way to go.

Meanwhile, establishment Republicans are hardly against using the debt ceiling to extract concessions.  Larry Lindsey, who served in the White House under the elder President Bush, and who has been active in high-level Republican circles for decades, recently described the debt ceiling as an "inelegant" but useful way to attack "out of control entitlements."  These are hardly the words of someone who is trying to steer the base away from reviving their debt ceiling strategy.

Even so, having another crisis in the future still requires that Republicans do what Sargent says they will not do, which is to make the affirmative strategic choice to use the debt ceiling as a political weapon once again.  Why would they do that?  As Professor Dorf pointed out, the political numbers are disturbing.  House Speaker John Boehner was barely able to find the minimum number of Republicans necessary to join Democrats in passing the most recent suspension bill.  Even though Boehner received credit from his lieutenants, he did not receive their support.  A Washington Post article quoted Republican House member Tom Cole of Oklahoma, a member of the House Republican leadership: "'I think he wants to get the issue taken care of.  John Boehner is the adult in the room.' (Cole voted no on the debt limit increase.)"  Nice use of a parenthetical!  Maybe Cole considered this a "free" vote, but this is not a promising sign.

More to the point, the message that Boehner sent to the Tea Party in February was not, "Shut up and move on.  We're not doing this debt ceiling nonsense anymore."  Instead, that article reported, "[a]head of the midterm elections, Boehner argued that now is not the time to get drawn into weeks of dramatic headlines and fiscal battles with President Obama. 'We’re not going to make ourselves the story,' he said."

In short, the message was most definitely not, "We're not doing this anymore."  It was, "Now is not the time, because we have mid-terms to win."  The message that the Tea Party received, therefore, was that the debt ceiling issue cannot be used in even-numbered years.  When the debt ceiling wakes up again next Spring, with a few weeks or months of extraordinary measures then carrying the next possible drop-dead date into April or May, the ultra-extremist majority in the House will know that that is their moment, their only real chance to use the debt ceiling.  If they allow another suspension of the debt ceiling for several months or another year, they will then be told to shut up again, lest they blow the party's chances in 2016.

It is hard to imagine that Tea Partiers will be willing to wait until 2017, at the earliest.  Patience has not been their hallmark.  Moreover, they expect to win the presidency in 2016, so they would not be in a position to use the debt ceiling as a weapon in 2017.  And perhaps most importantly, 2015 is their last chance to use the debt ceiling specifically against Barack Obama.  Given that the debt ceiling is still an impeachment trap, it is hard to imagine them not wanting to set the trap once again, to have their final go at the Kenyan/commie/muslim/fascist/mom-jeans-wearing imposter.

But this is all merely a series of educated guesses that Professor Dorf and I have worked through, based on our interpretation of recent history.  Is there anything to back this up?  Indeed, shortly after our first conversation about these very issues, The Hill ran a piece that began: "The White House might have gotten a clean debt-ceiling increase this time, but things likely won't be as easy next time around."  The money quote is from a Republican strategist: "You got the one pass. But if you do take control or come close, saying 'OK, after the next election' isn't going to fly with the base. The base is tired of hearing 'next election.'  The base is only going to stay patient for so long."

In short, as much as I would like to see the country spared another round of debt ceiling brinksmanship, it seems highly likely that the stars are aligning for a donnybrook next Spring.  Until then, I think we all will enjoy the opportunity to think about other things.  The end may well be nigh, but in the meantime, the orchestra can continue to play.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 13 Mar 2014 14:56
-- Posted by Neil H. Buchanan

In my new Verdict column, I confront the widely held belief that the U.S. spends too much on elders and too little on children.  I confess that, when I first started hearing that claim several years ago, it "felt" true (in Stephen Colbert's now-class sense of "truthiness").  We know that we have big federal programs to support retirees, and we also know that support for youth-related initiatives is spotty and inadequate.  No matter how one feels about the financing of Social Security and Medicare, it is easy to fall into the trap of thinking that society as a whole overspends on the geezers.

Of course, this meme feeds all too smoothly into the generational conflict that budget hawks have been trying to gin up for years.  Even though the astroturf deficit-scold groups have been rather clumsy in trying to create outrage among 20-somethings (e.g., supposed "youth activists" on college campuses turn out to be paid shills), they have succeeded in convincing a large number of post-Baby Boomers that the government is screwing them over to lavish benefits on old people.

In my column, my central argument is that this claim -- "We're overspending on seniors, and underspending on kids" -- is merely a divide-and-conquer tactic.  Even if the underlying claim were true, we do not see any of the deficit scolds saying that the right answer is to "level up," bringing spending on kids up to the levels spent on elders.  That is because doing so would require spending more money, which conflicts with the anti-government ideology that is really driving these front groups for the wealthy.

More to the point, these groups are afraid that efforts to increase funding for kids will come out of the pockets of the rich.  We can see this most obviously in the the freaked out response by Republicans -- and even "centrist" Democrats like NYS Governor Andrew Cuomo -- to NYC Mayor Bill de Blasio's effort to increase taxes on high-income New Yorkers to pay for universal pre-K.  If, instead, young and old are at each others' throats, the conversation never comes back around to how to finance adequate programs for all.

Here, I want to add some further thoughts on two questions that I raise in that column.  First, I note in passing that the underlying assumption behind the "too much for geezers, too little for kids" trope is that fairness would require equal spending on each group.  Yet no one ever offers a reason why that should be true.  We are talking about two groups whose only common feature is that they are not currently working to produce goods and services in the economy.  The two groups are of different and varying sizes, with very different needs.  Why would we even expect that spending on the two groups should be equal?

For that matter, why would it even raise a question if we were to find out that the ratio of spending on one group versus the other was 1.5:1, or 2:1, or 6:1, or 20:1?  In employment discrimination cases, legal burdens are based in part on whether the racial or gender mix deviates significantly from the proportions in the general population.  That, however, is because we start from the assumption that a non-biased workplace would, as a matter of probability, replicate the society at large (within ranges determined by statistically independent variation).

In terms of government spending, there is no similar presumption.  For some reason, however, we act as if it is not just suspicious, but conclusively damning, that spending on elders appears to exceed that on young people.  I note in the column, by the way, that this appearance of unequal spending turns out to be a mirage, and that the proportion really is close to one-to-one.  But that is pure happenstance.

In short, we have an entire political debate that is, as legal scholars like to say, deeply under-theorized.  This is hardly a shock, of course.  After all, the balanced-budget obsession is based on no theory at all, other than (at best) "Neither a borrower nor a lender be."  There, however, there actually is a well-developed theory about what a well-designed fiscal policy would look like.  The so-called Golden Rule of budgeting (which I discuss here and here) tells us, as a long-run proposition, to borrow to finance investments (including, ahem, investments in children, such as early childhood nutrition and education programs) and to pay for non-investment expenses on an ongoing basis.

No such theory is available to determine the appropriate balance between spending on the young and spending on the old.  There are theories, and seriously engaged debates, over when and how to spend on people in particular situations (the most obvious being end-of-life medical care choices), but there is no reason at all that such decisions should, in the aggregate, lead to any particular old-versus-young spending ratio.

All of which reinforces the conclusion in my column, which is that this is political smoke and mirrors to drain off populist energies from what could actually result in progressive policy changes.  As I have concluded in a similar context, the relevant distributive justice question here is not about the young versus the old, it is (as ever) about the rich versus everyone else.

The other issue that I raise in today's column is the different ways that our society chooses to care for its two groups of nonworkers, children and retirees.  As I put it in the column, our system boils down to this: "Money for the old, attention for the young."  That is, having decided that people should be allowed to stop working at some point in their lives and live a dignified retirement, we have allowed this to happen essentially by giving them checks (and by promising to pay for most of their health care).

By contrast, we pour an enormous amount of social resources (mostly the labor of parents) into rearing children.  Most of this social investment is extremely difficult to measure, but there is no question that we put a great deal of effort into turning children into adults.  If you have any doubts about that statement, or even if you do not, just stop to think about the different things that untold numbers of adults would be doing right now if there were no children to worry about.  Not only would entire professions disappear, but there would be no driving to soccer practices, no homework to help with, no fights over TV stations to mediate, and so on.  I am not saying that these social investments are bad ideas, but only that we rarely stop to think about how completely our lives (even the lives of childless people) are affected by the social decision to allow children to develop in ways that we now consider normal.

The problem is that some children do not get enough attention.  That is one consequence of decentralizing an important social function like child rearing.  If we were still relying on "attention" rather than "money" to take care of old people, that same problem of unevenness of care would arise for elders, too.  That is an additional reason why the decision to make retirement a shared social enterprise has been such an important and successful social initiative.  Many fewer elders slip through the cracks than used to.

How do we stop children from slipping through the cracks?  The politically plausible answer is targeted check-writing.  Of course, we generally do not just send money to kids, for good reason.  Even so, the push for funding for school lunches (and breakfasts and dinners), for after-school programs, and even for controversial in-school programs like sex education, amounts to a decision to substitute "money" when "attention" is not forthcoming for some children.

There is always an alternative.  Brave New World anticipated one dystopian vision of a society that solves the problem of uneven attention by taking child-rearing away from individuals.  My money/attention dichotomy is somewhat misleading, of course, because the money is used to buy a different kind of attention, but the point is that we could monetize child-rearing to parallel the ways in which we have monetized senior care.  (A recurrent scandal in senior care, by the way, involves claims that the money has not brought forth adequate attention from the surrogates whom families have indirectly hired to take care of their parents and grandparents.)

Even short of institutionalized child-rearing for society as a whole, perhaps the most useful way to frame the debates about youth poverty, teenage pregnancies, drug use, and so on is to say that we are trying to figure out what to do when it appears that money has to be spent because no one is paying adequate attention to the children.  In this sense, yes, it really is a matter of "throwing money at the problem."  But the money must be spent, because the children are not otherwise receiving adequate attention.  And all of us end up paying for that.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 12 Mar 2014 11:30
By Michael Dorf

My latest Verdict column discusses recent controversies regarding claims for exceptions from general laws, comparing and contrasting claims for exceptions grounded in four freedoms that receive protection in the First Amendment (and other sources of law): religion; speech; press; and association. Here I want to discuss a point of contact that I do not address in the column--what I'll call the sincerity problem.

In legal regimes that entitle religiously-scrupled persons to exceptions from general laws--like the one created by the federal Religious Freedom Restoration Act (RFRA) and similar state constitutional or statutory provisions--there arises a threshold question: Does the claimant have a sincere religious belief? That matters because the entitlement to an exception turns on the religious character of an obligation. If Jim can't work at his government job on Sundays because he goes to church on Sundays, that will trigger protection under a RFRA-style regime, but if Joe can't work at the same job on Sundays because that is the day when he watches sports on television, Joe receives no such protection.

But what if Joe says that his religion requires him to watch sports on tv on Sundays?  Courts will not ask whether such a religious belief--here, the religious belief that God has commanded people (or perhaps has commanded only Joe) to watch sports on tv on Sundays--is true.  Secular courts do not pass judgment on the question of whether a religious belief is true or false.  Nonetheless, the self-serving nature of the belief, coupled with the fact that it is idiosyncratic, will likely lead a court to conclude that Joe does not in fact sincerely believe that God has commanded him to watch tv sports on Sundays.  In theory one can imagine people concocting self-serving religious beliefs and then trying to persuade themsevles to hold such beliefs, but in fact the few efforts along these lines routinely fail, and so almost no one bothers.  (My favorite case is United States v. Kuch, in which the district court rejected as insincere the claimed religious belief that the defendant was obligated to smoke pot. I discussed it at some length here, drawing connections to Festivus.)

Now let's see how these principles apply to expressive association.  As a general matter, federal constitutional free speech doctrine parallels federal constitutional free exercise doctrine: That is, laws that do not target speech, but have the effect of burdening speech in particular cases, do not produce exceptions for speakers.  The leading case here is Arcara v. Cloud Books.  Moreover, there is no EFRA (Expressive Freedom Restoration Act) that requires that general laws be subject to strict scrutiny when they incidentally infringe speech. Thus, it is something of an unexplained mystery why the Supreme Court sometimes treats general anti-discrimination laws as subject to strict scrutiny when they happen to be applied to expressive association--as in Hurley v. Irish-American Gay, Lesbian and Bisexual Group and Boy Scouts of America v. Dale.  Perhaps the Justices think that anti-discrimination laws are never neutral because they always target association, but that's not a sufficient explanation, because the Constitution doesn't protect a general right of association: it protects a right to (and a right not to) expressive association and (not relevant here) a right to intimate association.

In any event, despite not being well justified, the Court's case law sometimes does subject general anti-discrimination law to scrutiny when it bumps up against expressive association. Exactly when that occurs is uncertain.  In Elane Photography v. Willock, the New Mexico Supreme Court read the circumstances in which expressive association exceptions will be granted to anti-discrimination laws fairly narrowly.  The Supreme Court will soon decide whether to grant cert in that case. Understandably, the cert petition relies heavily on Hurley and Boy Scouts, but the NM Supreme Court read those cases as largely inapposite because they did not involve the application of anti-discrimination laws to commercial enterprises, and the opp cert draws the same distinction.

And for good reason. Suppose that the Court grants cert in Elane Photography and holds that commercial enterprises have a right of expressive association to exceptions from anti-discrimination (and other) laws. As in the religion cases under RFRA-like regimes, there is a threshold question of sincerity, but unlike in the religion cases, there is no further requirement that the sincerely held belief be distinctively religious. The absence of that additional qualifier makes Elane Photography a bomb that holds the potential to blow up anti-discrimination law.

To see just how reactionary the position of the Elane Photography petitioner is, consider a comparison. Even under the expanded version of the Arizona RFRA that Governor Jan Brewer vetoed late last month, the owner of a strip club could not keep out female customers unless he could show that he had a distinctly religious objection to permitting women into the club--a task that would seem difficult, in light of the fact that, you know, he owns a strip club. But if the petitioner in Elane Photography were to prevail, then all that the owner of the strip club would have to show is that he doesn't agree with the message conveyed by admitting women to his club.  Indeed, under the view advanced by the Elane Photography petitioner, the racist owner of a restaurant would be presumptively entitled to an exception from the obligation to maintain racially integrated facilities--so long as he was sincere in his belief that he disagreed with the message conveyed by racial integration. And, as a racist, he almost certainly would be sincere in that belief.  The core point is that the Elane Photography petitioner has staked out a position considerably to the right of the position taken by the Arizona legislature that was itself too far to the right even for Jan Brewer.

Can Elane Photography win on narrower grounds? The Court might distinguish between expressive activities like photography and ostensibly non-expressive activities that might run afoul of anti-discrimination law. Thus, Professors Volokh and Carpenter, as well as the Cato Institute, argue in their amicus brief that a ruling for Elane Photography would not entitle "caterers, hotels, and limousine companies" to violate anti-discrimination law because catering, hoteling and driving are not expressive activities.  However, they notably do not discuss intermediate categories like flower-arranging and baking, nor, more importantly, do they come to grips with the fact that scouting is not even arguably an inherently expressive activity; yet the Boy Scouts prevailed in the Supreme Court on the theory that association itself sends a message. (Their brief only cites the Boy Scouts case once, in a footnote, for an unrelated proposition.)

Moreover, the Court in Boy Scouts was at pains to allow the Boy Scouts to define themselves by their own message, without any inquiry into the inherent nature of the association, expressive or otherwise. Here is CJ Rehnquist for the Court in Boy Scouts:
associations do not have to associate for the “purpose” of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection. 
Let's see what happens when we substitute "business" for "association":
[Businesses] do not have to [do business] for the “purpose” of disseminating a certain message in order to be entitled to the protections of the First Amendment. A[ business] must merely engage in expressive activity that could be impaired in order to be entitled to protection. 
Thus, accepting the Boy Scouts logic in a commercial case would allow any business to throw in a racist, sexist, or homophobic message -- such as a sign professing white supremacy on the entrance to the hotel or on the side of the limousine -- and it will generate strict scrutiny of anti-discrmination law as applied to it.

The Cato/Volokh/Carpenter brief also attempts to cabin its argument by noting that exceptions to the public accommodations provisions of anti-discrimination laws do less to undermine such laws than do exceptions to the employment provisions of anti-discrimination laws. I think that's probably right, but there is nothing in their argument that would admit a principled distinction between public accommodations and employment. Indeed, the employment relation creates a greater impression of endorsement by the employer than does the mere willingness to serve customers, so by the logic of the Elane Photography petitioner, there ought to be a stronger case for exceptions from employment restrictions, not a weaker one. And in fact, Boy Scouts itself was the non-profit version of an employment case: The Boy Scouts of America objected to accepting respondent Dale as a troop leader.

Accordingly, despite the efforts of Cato and Professors Volokh and Carpenter, if the SCOTUS were to grant cert and rule for Elane Photography, it would open up a pandora's box of businesses seeking exemptions from anti-discrimination law. That box should remain tightly closed.

Postscript: My colleague Steve Shiffrin and I filed an amicus brief on behalf of the state in the New Mexico Supreme Court in Elane Photography.  The brief chiefly made arguments similar to those I have set forth above.  We then argued that, even if the court were to treat the application of the anti-discrimination statute to a commercial business as raising free speech concerns comparable to those at issue in Hurley and Boy Scouts, Elane Photography should nonetheless lose on the ground that photographing a same-sex ceremony would not actually be inconsistent with the beliefs or views its owners had articulated.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 11 Mar 2014 04:30
By Michael Dorf

Yesterday I attended a talk by George Mason Law Professor Ross Davies on the history of solo actions by Supreme Court Justices. To oversimplify, Davies argued that, in general, the Court gives its members a great deal of room to freelance in their extra-judicial activities when those activities do not purport to take the form of adjudication. He made the further point that in the exercise of this discretion, individual Justices have reached widely divergent answers about what is appropriate. As an example, he pointed to the enormous variation in the time that individual Justices have said must be allowed to pass before their papers become public record.  E.g., Thurgood Marshall's papers became public immediately upon his death; David Souter has embargoed them for 50 years following his donation of his papers.

Although Prof. Davies did not offer a policy prescription, it struck me that one approach that builds on his observations might be for the Court--or, where appropriate, other institutions, like Congress--to resolve as a matter of formal policy some of the questions that are now governed either by individual discretion or some loose sense of custom. If so, some such policies might be extended to matters that arise in an adjudicatory context. Here I'll focus on the four/five problem for capital cases.

Although nowhere codified in the Supreme Court Rules, it has long been understood that it takes four votes to grant a petition for a writ of certiorari. That customary practice is so well established that it need not be codified. Likewise, it is equally well established that to issue an order, a majority of the voting members of a quorum of the Court must vote in favor of the order. Absent a recusal or a vacancy, that means five. This too is a well-established practice.

Now consider what happens when a petitioner under sentence of death seeks cert. It is possible that four Justices will vote to grant the cert petition, but that no fifth vote can be found to stay the execution. Thus, the Court developed a practice whereby to honor the "Rule of Four" for granting cert, if there were only four votes to grant cert, one of the Justices who voted to deny cert would nonetheless vote to stay the execution so that the Court would not find itself in the awkward circumstance of having granted review in a case, only then to have the case mooted by the fact that the petitioner was executed.

But that informal practice of the courtesy fifth vote was never made official, and it has occasionally broken down. In Herrera v. Collins, four Justices voted to grant cert but there was no courtesy fifth vote for a stay. Fortunately, the Texas Court of Criminal Appeals issued stays that prevented Herrera's case from being mooted by his execution. But in Hamilton v. Texas (1990), there was no such intervention: four votes to grant cert; no fifth vote for a stay; so Hamilton was executed while his case was pending before the Court. To be sure, the merits of Hamilton's case made this result somewhat more complicated: Hamilton himself was not seeking review; he had decided not to raise any further challenges to the death penalty; the cert petition was filed by a "next friend." But still, even in a case like Hamilton, there is something macabre about permitting a state to moot a case by executing the petitioner.

In addition to the inspiration taken from Prof. Davies' talk, I raise this issue now because it may bear on the disposition of the cert petition currently before the Court in Hernandez v. Stephens (and for which my colleague Sheri Johnson is counsel of record). The case presents a number of very important issues regarding how the Texas courts have implemented the rule of Atkins v. Viriginia--perhaps none more important than the question of whether the Fifth Circuit erred when it ruled that Atkins permits a state court to find that a defendant is not intellectually disabled, notwithstanding IQ scores in the disabled range, if that score is (just barely) brought up to the bottom of the non-disabled range when "scaled to Mexican norms." The Fifth Circuit appears to be endorsing the view that whether someone counts as intellectually disabled--and thus death penalty-ineligible--can depend on his national origin. Even the SCOTUS conservatives ought to be interested in this case on equal protection grounds.

The Court should grant cert in Hernandez but if it does not, it should at least hold the petition pending its disposition of Hall v. Florida (which I discussed in an earlier Verdict column). Both Hall and Hernandez present questions about the proper role of state law in Atkins intellectual disability determinations; thus, even if the Court does not regard Hernandez as cert-worthy, its ruling in Hall could lead to what Supreme Court lawyers call a GVR--grant, vacate, and remand--for reconsideration in light of Hall.

What has that all got to do with Herrera and Hamilton? Texas has set an execution date for Hernandez that would have the state killing him before the SCOTUS could hear plenary argument in his case (if the Court grants cert) and likely before it would resolve Hall (which was only argued last week). So, whether the Court grants or holds the petition in Hernandez, it will take either five votes from the Supreme Court or the cooperation of the Texas courts to ensure that Texas does not moot the case by killing Hernandez before his petition is considered.

That sort of thing has also happened. In 1987, in Watson v. Butler, four Justices voted to hold the petition pending the outcome of another case on the docket. But, as Justice Brennan explained: "Three votes suffice to hold a case, but it takes five votes to stay an execution. The Court thus permits Mr. Watson's legal claim to stay alive while condemning Watson himself to die under a sentencing scheme that within a matter of months the Court may conclude is unconstitutional." One hopes that Hernandez will not be the occasion for a repetition of that sort of grisly irony, but more generally, the Court should rationalize its stay rules with its cert grant and hold rules.

Postscript: Speaking of the death penalty, Adam Liptak has a new NY Times story about claims by condemned prisoners that they have a right to know what method of execution the state plans for them. The story quotes an earlier blog post of mine in which I said that the Supreme Court may be skeptical of "opportunistic" attacks on methods of execution by lawyers who oppose the death penalty in all circumstances. The Times story accurately quotes me and links to my post, but a too-casual reader might get the erroneous impression that I think that such claims are problematic because opportunistic. Here I'll just reiterate what I said in the blog post: I was describing how I thought the Justices might react, not offering a normative justification for that reaction.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Monday, 10 Mar 2014 11:30
By Clifford Rosky

Just last week, I filed an amicus brief in Kitchen v. Herbert, the challenge to Utah’s constitutional amendment that bans same-sex couples from marrying.  The brief was filed on behalf of Utah’s largest LGBT organizations, Equality Utah and the Utah Pride Center, and it was prepared with the generous help of attorneys at Zimmerman Jones Booher.  In writing this brief, we tried to do something a bit different with United States v. Windsor: Rather than trying to avoid or resist the Court’s discussions of federalism, we showed that the Court’s analysis of the State’s authority to define marriage actually supports the invalidation of state laws under Windsor.

In Windsor, Justice Scalia and Chief Justice Roberts kicked off a national debate about how the Court’s invalidation of the federal Defense of Marriage Act would apply to state laws.  While Scalia predicted that it was “inevitable[] to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Roberts argued “it is undeniable that [the majority’s] judgment is based on federalism.”  “[I]n future cases about the constitutionality of state marriage definitions,” Roberts warned, “the State’s power in defining the marital relation . . . will come into play on the other side of the board.”

Since Windsor was decided, the litigation strategy in the states has proceeded largely as Scalia and Roberts predicted.  In addition to making the familiar due process and equal protection claims developed in earlier cases, plaintiffs have now added a long list of quotations from Windsor.  Following the blueprint laid out in Justice Scalia’s dissent, they have plugged in “this state law” wherever the majority opinion mentioned “DOMA.”

In reply, the States who have chosen to defend these laws have quoted extensively from the Windsor majority’s frequent bows to the State’s primary authority to regulate domestic relations: “domestic relations . . . has long been regarded as a virtually exclusive province of the States,” “the definition of marriage is the foundation of the State’s broader authority to regulate domestic relations,” “there is no federal law of domestic relations,” and so on.

In an attempt to have the final word on this matter, plaintiffs have responded by quoting the Windsor Court’s repeated warnings that although the State’s authority to define marriage is broader, it always remains “subject to constitutional guarantees.”  In one instance, the Court’s warning include an intriguing cite: “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, Loving v. Virginia, 388 U.S. 1 (1967).”

To date, this strategy has yielded a remarkable string of victories for plaintiffs: Since Windsor, all six federal judges to consider the question have ruled that states may no longer refuse to issue marriage licenses to same-sex couples, or refuse to recognize same-sex marriages performed in other states.  In the next few months, we will begin to see how the these rulings will hold up on appeal.

After reading Windsor more times than I’d care to admit, I noticed an interesting idea that I hadn’t seen mentioned by plaintiffs yet, which I developed in our amicus brief: In describing the relationship between federalism and marriage, the Windsor Court seems to be offering an explanation of why States have the primary authority to define marriage.  The explanation begins on page 2692, where the Court describes the significance of New York’s decision to recognize and allow same-sex marriages.  As the Court says, the State’s decision was “without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.”

In the next sentence, the Court offers the first clue about why marriage is primarily reserved to the States, rather than the Federal Government: “The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.”  The thesis of this sentence seems fairly straightforward:  In the federal system, we give States more authority to regulate our “daily contact” because States are local—smaller than the Nation, less populated, more socially interactive.  By reserving this kind of authority to the States, rather than the Feds, we enhance our ability to govern how we interact with each other in our daily lives.  Because marriage is quintessentially personal, it is quintessentially local.

In the next paragraph, the Court goes on to explain how this general theory of federalism applies specifically to marriage.  Within a few sentences, it becomes clear that the Court is not about to countenance a popular vote on the validity of same-sex marriages.  First, the Court writes that the State’s authority to define marriage is derived from the recognition that marriage is about more than just benefits: “The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.”  What more, you ask?  Above all, the Court signals that marriage is a personal union between two adults: “Private, consensual sexual intimacy between two adult persons of the same-sex . . . can form ‘but one element in a personal bond that is more enduring.’’  “This status is a far-reaching legal acknowledgment of the intimate relationship between two people.”

On the following page, the Court adds one final thought on the link between federalism and marriage, which seems especially telling: “The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people.”

I think that this sentence—perhaps more than any other—strikes a decisive blow against state laws that ban same-sex couples from marrying.   If anything, the Court’s theory of federalism and marriage indicates that excluding same-sex couples from marriage under state law, rather than federal law, has an even more profound impact upon them, by imposing inequality even more deeply into their daily lives.  To take the most obvious example: Unlike DOMA, state laws actually prohibit same-sex couples from marrying in the states where they live—and in some cases, from entering into any domestic union at all.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 07 Mar 2014 16:46
-- Posted by Neil H. Buchanan

On nearly any contested question, people who are thoughtfully engaged in the issue will regret the loss of nuance that comes when one is forced to choose a side.  Even on those issues for which the answers and solutions seem manifestly clear, there are still details that need to be explored, and it would be best if we could think about them without fear that asking honest questions will be taken as a sign of weakness or bottom-line ambiguity.

Consider a few examples.  The debate over energy policy necessitates some excruciating inquiries into the tradeoffs among environmental harms -- types of damage, long-term versus short-term, and so on -- from different energy sources, along with the costs and benefits (and limits) of conservation.  In light of that, I have written (for example, here) that the least-bad choice for the United States today is to rely more on coal and less on oil and nuclear power.  In the two years since I wrote that post, fracking has emerged as a headline issue, making natural gas suddenly a very prominent part of the debate.  For the purposes of this post, I need not argue whether or not the available information about fracking is enough to conclude that it is worse or less-bad than coal.  Assume for now that I would still conclude that coal is the least-bad choice.

When I wrote that post in which I reluctantly came down in favor of coal, of course, what I really argued was that we need to put a lot more money into developing alternative sources, as well as intensifying conservation efforts.  Until those policies could take effect, we would need to make a choice among the high-volume energy sources.  As difficult and counter-intuitive as it was to say so, it seemed (and seems) to me that coal is less terrible than its alternatives, taking everything into account.

Notwithstanding my attempts to be nuanced and to acknowledge the uncertain nature of the inquiry, I had identified myself as "pro-coal," and for some purposes, that is the end of the story.  I received irate emails and comments from people who wanted to talk about how bad coal is, which I had already acknowledged.  (It was not quite as bad as people who responded to my arguments about the debt ceiling by pointing out that the Constitution gives only Congress the power to borrow money -- duh! -- but it was categorically similar.)  The highly contentious nature of U.S. political debates regarding energy, especially the presence of truly dishonest pro-coal propaganda from right-wing and industry sources, makes it nearly impossible to say, "You know, this is a difficult question."

In some ways, the energy debate is similar to the U.S. political atmosphere regarding policies related to Israel.  People I have met from Israel tell me that they cannot believe how one-sided the U.S. political discussion is, with any deviation at all from the accepted line being attacked on a bipartisan basis as "anti-Israel."  The political debate in Israel itself is, I am told, much broader -- even though it is obviously still quite heated.  Yet in the U.S., acknowledging nuance is treacherous.

Another example, closer to my professional interests, is the non-debate over tenure.  Nearly any thinking person knows that there are tradeoffs created by a system of tenure, and that supporting the institution of tenure is ultimately a matter of saying that the costs are swamped by the benefits.  Yet it would be dangerous indeed, especially in the United States in the last few years, to say or write anything that says, "Let's think about ways to tweak tenure, to make it better."  You're either for it or against it!

Such a reaction, moreover, is actually quite reasonable.  The problem is that it is now necessary to make a different cost-benefit calculation, assessing the likely net damage from acknowledging problems publicly, and from allowing for the possibility that the system could be changed for the better.  Opening up that possibility, under current political conditions, all but invites a policy overreaction.  An attempt to give tenure a careful, critical look could all too easily result in the destruction of an essential social institution.

These thoughts were inspired by an email that I received recently from a biologist, who offered the observation that I discussed yesterday regarding the political concerns facing biology departments.  He noted that legislatures do care about the political consequences of science, making political questions very much a legitimate matter of concern for supposedly apolitical "hard" scientists, even those who work in universities.  The remainder of my post yesterday grappled with how academics should respond to politics, in light of threats to funding from anti-intellectual (and anti-thought) politicians.

In that same email, my correspondent noted that the recent hyper-politicization of climate science and evolution (his two specialties) had created an unfortunate reaction by scientists that is, viewed through the standard prism of intellectual inquiry, unduly rigid and hostile to constructive engagement with doubt.  In particular, this biologist noted that he had recently attempted to offer a course in which students would confront gaps in scientific knowledge.  As I understood it from his brief description, it appeared that he was planning to look not only at, say, the parts of the fossil record that are incomplete.  That inquiry alone would be extremely dangerous in today's political environment.

More broadly, he wanted to equip students to understand the limitations of scientific knowledge, to allow them to respond intelligently to those people who seize upon scientific uncertainty and ambiguity to try to undermine the entire academic enterprise.  For example, do scientists have fully supported stories of cause-and-effect explaining how medications affect the human body?  Surprisingly, they often do not, because much of what counts as medical knowledge amounts to thinly supported beliefs that are based on crude empiricism.

This philosophy-of-science inquiry is among the most interesting, yet neglected, questions in all of academia.  In my original field of economics, the doubts that should appropriately be included in the basic undergraduate curriculum  (and certainly in the core graduate requirements) are shunted into under-enrolled elective courses that are thought of as "soft."  Better to prove one's scientific mettle by taking another econometrics course!  Sadly, it turns out that this repression of doubt is present in real sciences as well.

Again, however, I can see why my correspondent's colleagues pushed back so hard against his offering that course.  (He ultimately had to offer it through a non-science program within the university.)  Unlike in economics, where a little philosophical modesty could only improve matters, biologists understand all too well that, at least with regard to evolution and climate issues, nuance is dead.  It shouldn't be, but it is.  It would be all too easy to imagine a legislator holding a press conference to scream: "Even our local university's biology department admits that the science on evolution is contestable.  Yet they won't hire anyone who believes in intelligent design.  Teach the controversy!"  That the legitimate doubts do not at all support the teaching of intelligent design would surely be lost under the political Klieg lights.

The real losers from this loss of nuance are, of course, the students and society at large.  When legitimate questions can no longer be addressed openly and critically, for fear of political fall-out, knowledge cannot advance.  This is an old story, but it is disappointing to see that it has now infected even the academic scientists whose work is so important to understanding these issues.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 06 Mar 2014 18:09
-- Posted by Neil H. Buchanan

Two weeks ago, I wrote a pair of posts (here and here) responding to a shameful op-ed column in The New York Times by Nicholas Kristof.  Kristof purported to argue that the world is being impoverished by the increasing unwillingness of American professors to engage in public policy debates, because they are supposedly too busy being irrelevant and egg-headed.  That, however, was merely a diversion.

In my second post, after I had dismissed the "cover story" of Kristof's column (the demonstrably false claim that professors are refusing to enter the public square), I noted that Kristof was doing nothing more than arguing that professors are too liberal.  The question was why he would devote his Sunday op-ed space to that argument.  "But if Kristof is a liberal (and most evidence suggests that he can be reasonably described as left of center), then what is the point of joining in what is usually the tired right-wing pastime of professor-bashing?  [A satisfying answer to that question] has to be able to explain why a liberal would attack a group of people whom he thinks are also liberal."

Upon further reflection, I am now surprised by how surprised I was by Kristof's column.  The answer to my question of liberal-on-liberal attacks is old news -- so old that people have some simple shorthands to describe the phenomenon.  This was, after all, merely Kristof's "Sister Souljah moment," his gleeful indulgence in "hippie punching."  As I put it, in response to a reader's comment on my first post, Kristof's op-ed amounted to nothing more than this: "Professors don't shade their views to protect political sensibilities, which makes me uncomfortable, because I've bought into the absurd notion of 'balance' that has ruined journalism."

This is, therefore, a very old debate.  Are professors too liberal, and if so, should anything be done about it?  Now that I have seen through Kristof's smokescreen (probably later than almost anyone else who read that op-ed, I concede), I will turn to a part of that argument that has long annoyed me.  In my second post linked above, I wrote: "Kristof appears to be saying that the way to assess the health of an academic field is to ask whether its practitioners line up with the current partisan make-up of the country.  When did that become a meaningful criterion for intellectual value?  Should biology departments also be concerned about political affiliations?"

In context, that was clearly a rhetorical question.  If the question in any academic field is how to maximize intellectual value, it would be strange indeed if there were even a rough overlap between the political attitudes of professors and the range of views represented on the U.S. political spectrum.  In fact, given that the current Republican Party so completely rejects what are often called Enlightenment values, it would be nearly impossible to imagine Republicans' attitudes being well represented in the quintessential Enlightenment institution that is the modern university.  Universities focus on evidence and reason, while the current Republican Party rejects evidence and reason whenever they get in the way of blind faith and predetermined views.

As a baseline prediction, therefore, one would imagine that even professors with personal attitudes that would generally count as conservative would be put off by today's Republicans.  And as I have recently argued, even people with conservative views can easily operate within the Democratic Party's broad range.  Moreover, if we take seriously the Econ 101 idea that people vote to protect their narrow financial interests, even a conservative professor would understand who supports her professional endeavors, and who is actively undermining the intellectual pursuits that make her work possible.

Unsurprisingly, therefore, it does turn out that professors are more liberal than the public at large.  Publications like Inside Higher Ed regularly report with breathless enthusiasm on polls showing that professors are on average fairly liberal.  Although such stories generally carry slanderous quotes about, for example, how departments are skewed by "leftist groupthink," there is no proof that the generally more liberal views in academia are caused by "thought police."  I have certainly seen, in economics departments, how something that one could describe as groupthink can take over in ways that badly skew the field.  Of course, that skew is strongly to the right, even though the actual economic evidence strongly supports left-leaning views.

I am not saying, of course, that every department in every field is free of political bias.  I am saying, however, that the evidence that professors are more liberal than the population can be easily explained by self-selection into a non-faith-based endeavor, along with pure self-interest.  This conclusion is supported, moreover, by the finding that even supposedly apolitical departments are more liberal than the population at large.

For example, in the 2004 Presidential election, the voting population went 51-45 for Bush over Kerry (with 4% voting for other candidates).  According to a study of professors' votes in that election, social scientists (including the sociologists whom Kristof specifically attacks) went 81-18 for Kerry.  But science and math departments went 72-24 for Kerry, and even business/management departments split 49-49.  It is hard to imagine that there is a serious tendency toward uniform political views in hiring decisions among, say, physicists and chemists, that would explain why they voted 3-1 for the Democrat.

Which brings me back to my rhetorical question from two weeks ago: "Should biology departments also be concerned about political affiliations?"  If the idea is that we should allow academic departments to hire the best candidates, and the best candidates (for various independent reasons) end up being more liberal than the population as a whole, who should care?  Especially given that there seems to be no evidence that college professors successfully impart any political viewpoints onto their students, it is not even plausible to complain that colleges are brainwashing impressionable youth, remaking America in their more-liberal image, as Republicans like Rick Santorum like to claim.

There is, however, a way in which my question is not rhetorical at all, which I have tried to capture in the (somewhat fanciful) title to this post.  In response to my earlier posts, a biology professor responded to me in an email, saying: "Given that basic (vice applied) research is invariably better funded by left-leaning politicians, unfortunately the answer is 'yes.'"  That is, bio departments must, as a matter of practical reality, worry about political affiliations.  The king's wizards ultimately serve at the pleasure of the king, and if the king and his lackeys decide that the wizards are displeasing, then there will be no more wizards -- or, more likely, the king will explicitly make political views part of the process for selecting future wizards.

So, if funding is ultimately a political game (notwithstanding the various protections currently existing in our system, all of which are politically tenuous), is it possible to please the king and his court without being nakedly political?  Can academics do anything, other than forcing themselves to change their research conclusions to please the politicians, that takes politics into account?

One possibility is to start explicitly playing the perceptions game.  I am a registered Democrat, but (as readers of this blog know) I am pretty disgusted by the Democrats.  I could register Republican, on the theory that they need to hear from an honest voice from within their ranks.  Or, I could simply register as an independent, or refuse to register at all.  If others followed my lead, the annual rankings that show that law schools have many more registered Democrats than Republicans would change.  Those annual rankings were never meaningful in the first place, so this gaming of the system would hardly feel as if it was disrupting the integrity of an honest inquiry.

Short of deliberate manipulation of politicized processes, however, is there anything that professors/universities can or should do to protect the funding that is essential to carrying out their socially valuable roles?  I honestly think that deliberately manipulating hiring decisions, to respond to dishonest calls for "intellectual diversity," would only make matters worse.  It would amount to a confession of something that is not true, because it would have to be framed as, "We are so sorry that our processes have systematically excluded qualified conservatives.  We'll start doing better now, by giving special consideration to people who are identifiable as conservatives."

That strikes me as an attempt to court favor by agreeing to corrupt the system.  It has no limit, because it is always possible for the anti-intellectuals to say that there need to be even more conservatives.  Then, when the conservatives gain a majority, they can engage in exactly the kind of ideological freeze-out that they complain of now.  Again, the contrast between economics and law is instructive.  When Chicago-school economists were able to do so, they simply took over the journals and the hiring processes, making it impossible to publish anything (and therefore to get hired) if one was not willing to work from the narrow set of conservative models that pass for "science" in that field.  Whatever else one might say about law schools, it is still quite easy to publish conservative arguments in the top journals.

In short, I think the American academy is essentially on the right track.  That is, we are trying to run an apolitical system within a political world.  There are plenty of departures from the ideal, of course, but the alternative -- giving up on the idea that we should try to judge merit on non-political grounds -- is far worse.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 05 Mar 2014 12:30
by Sherry F. Colb

My Verdict column this week discusses the recent Supreme Court case of Fernandez v. California, which held that one co-occupant can give the police valid consent to a search, even if the other co-occupant expressed his opposition to the search earlier (and is absent from the premises only because the police removed him in the course of a lawful arrest).  My column takes the occasion of this decision to talk about how the Court classifies  "consent" searches as "reasonable" searches and contends that the classification (and its doctrinal development) are less than ideal.  In this post, I want to talk about the relationship between consent and non-consent more generally.

In its opinion in Fernandez, a majority of the Court contends that the consenting co-occupant's autonomy is best honored by treating her consent as decisive, notwithstanding the earlier objections of her now-absent (and abusive) boyfriend.  In response to this claim, Justice Ginsburg suggests in a footnote of her dissent that the woman who consented to the search may have felt pressured to do so by the police and did not truly experience herself as exercising any real autonomy under the circumstances.  This is a very important point and one that, I argue, should have received more attention in the dissent.

Let us put to one side, however, the question whether the woman in Fernandez did or did not truly consent to the police search at issue in the case.  I want to focus here on the asserted relationship between consent and non-consent in facilitating autonomy.

As the majority in the case suggests, it dis-serves the autonomy of a person who sincerely wishes to consent to a search if we ignore that consent or allow someone else (in this case, a battering boyfriend) to overrule the consent from afar.  In the case of police searches, of course, it may seem odd to maintain that prohibiting a search to which a homeowner has consented will substantially undermine the woman's autonomy.  The Fourth Amendment, after all, protects people's interest in security against unreasonable searches and seizures rather than the affirmative interest in being searched, upon a voluntary consent.

If we turn from the area of search and seizure, however, to the area of sexuality, we can quickly see that the ability to have one's privacy against unwanted intrusions honored is significantly connected to the corresponding ability to have one's interest in pursuing wanted sexual interactions honored as well.

When I was growing up, I attended an ideologically conservative, Orthodox Jewish elementary school.  In this school, our curriculum was divided into religious subjects, taught by religiously devout teachers, and secular subjects (such as math, science, social studies, literary arts, etc.), taught mainly by secular, religiously nonobservant teachers.  In my religious classes, I learned about the concept of "modesty" or "tzniyut," in Hebrew.  One aspect of modesty in Orthodox Judaism requires women and adolescent girls to avoid wearing clothing that might be described as sexy or provocative.  Different groups of Orthodox Jews interpret this requirement in different ways, but in my school, we were taught to wear skirts that covered our knees and shirts that covered our elbows and were not very tight.  The goal was to obscure the salience of the female form.

The teacher who taught us about modesty told us that Judaism (and by extension, other religions that impose rules of modesty on women and girls) respects females and aims to protect them from harassment and mistreatment.  By contrast, the teacher claimed, secular America embraces pornographic images that implicitly value women only for their bodies and sexual attractiveness.  At the time, this sounded plausible to me, and the highly sexualized images of women that we saw all around us (on billboards, in magazines, in television advertisements, etc.) seemed to confirm the claim.  In a religious setting, a woman could obscure her sexual attractiveness and nonetheless be taken seriously as a thinking person, I concluded.  The secular world highlighted women's sexuality and used it to degrade and subordinate women.

What I failed to appreciate at the time was that "modesty" of my school and the hyper-sexualized imagery of the world outside were not quite the opposites that my teacher had maintained.  They instead represented the two "options" for women in settings in which women are given little autonomy:  you can either be a Madonna (the mother of Jesus, not the singer) -- a good girl who refuses sexual advances and maintains her purity -- or a Whore, one who is sexually available to the highest bidder.  One cannot, however, choose to be neither of these and instead dress however one pleases, consent to sex with some people, and refuse to consent to sex with others, and be taken seriously on one's own terms.  One cannot, in other words, be an autonomous sexual agent, in the way that men can be autonomous sexual agents.

The very idea of "provocative" clothing implies that men (those who are, in this scenario, "provoked" by a woman's revealing clothing) are not really responsible for their sexual behavior.  Once a woman turns them on, they simply must act on their arousal by harassing or assaulting the woman in question.  The woman therefore has only one choice to make -- will she hide her sexuality and stay safe (or at least have people take her sexual assault seriously, if it occurs) or will she act on her own sexual urges and then assume the risk that she will arouse men in whose sexual company she is uninterested.  Stated differently, the woman's non-consent is honored, but only so long as she never consents. Once she consents, she waives the right to withdraw that consent in the future, either from the particular man or, if she is unmarried, from any man.

My teacher said none of this, of course, but I think that it was implicit in the suggestion that it is women's responsibility to dress modestly and thereby avoid "attracting" unwanted attention.  To say that one has to cover one's body to avoid being harassed or assaulted is to strongly imply that if one is harassed or assaulted after failing to cover up, it is one's own fault.  When I attended college, long after I had learned about modesty, I came to believe  in the contrasting slogan chanted at "Take Back the Night" rallies:  "However we dress, wherever we go, yes means yes and no means no."  In other words, dressing provocatively or walking around alone at night does not constitute any sort of "waiver" of bodily and sexual integrity.  To suggest otherwise is to (improperly) blame predatory behavior on the victim.

How is all of this relevant to the Fourth Amendment?  Its relevance is, as I suggested above, not very clear when the issue is whether to permit a consent search to go forward.  Unlike sexual autonomy, it is rare that anyone would feel very strongly about her right to say yes to a police request for consent to search her home.  The Fourth Amendment importance of consent to non-consent, however, has application beyond the consent search context.  For example, people regularly decide to share their privacy (in their persons, houses, papers, and effects) with other people, and that ability to include others in their private zones is in fact part of what makes the privacy so valuable to people in the first place.

Yet the Supreme Court has consistently viewed people's decision to share their privacy with others as akin to a forfeiture of that privacy.  Examples include the fact that none of the following receives privacy protection under the Fourth Amendment against police intrusion:  the garbage one has left outside the curb of one's home (in part because one has consensually "shared" the garbage with the garbage collector and thereby effectively waived any interest in its privacy); the secrets one confides in a close friend who is actually an undercover police officer wearing a wire and electronic transmitter (because one has consensually "shared" one's confidences with a perceived friend); and -- most significant to the legality of the NSA's surveillance --  the phone numbers that one calls from one's telephone (because one has consensually "shared" that information with the telephone company).

In each of these examples and many others, the person in question could not really function in the world without "sharing" information or visual access to one's life to someone, a third party -- whether a close friend or a business whose services one needs.  Yet the Court has often treated such life-enhancing (or life-necessitating) sharing as a waiver of one's privacy against police intrusions into the private areas of one's life.

It is true, of course, that if one broadcasts information or visual (or audio) access to one's life to "everyone" (for example, by yelling secrets across a crowded street), then police invade no reasonable expectation of privacy by also listening in.  However, individuals sometimes choose to share their privacy in a less indiscriminate manner, much as people decide to have consensual sex with some but not other individuals. For police to treat such limited exposures as a relinquishment of privacy from government surveillance shares something in common with the decision to treat "promiscuous" women as subject to lawful harassment or worse.

Ultimately, for the law to show respect for an individual's right to say no (i.e., the right to privacy against unwanted intrusions), it must show due regard for the same individual's right to say yes to some intrusions and nonetheless retain the option of saying no to others.  In that way, the options of consent and non-consent are intimately linked, and there truly is an autonomy interest (even as the Court perhaps opportunistically invokes it in Fernandez) in deciding when one wishes to share one's most private spaces with others, of one's own free will.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Monday, 03 Mar 2014 21:51
By Mike Dorf

In the late 19th century, all of my great-grandparents came to the United States from the area around the city of Lvov, in Galicia, a region that has traded hands among various nations over the centuries. Historically part of Poland, when my great-grandparents left, Lvov was officially known as Lemberg, as it had been part of the Austro-Hungarian Empire since the late 18th century. Today, Lvov is Lviv, a city in the west of Ukraine.

Nonetheless, until the current crisis, I had never really thought of Ukraine as my familial "old country." The descendants of nearly all of my great-grandparents' families who remained in Galicia were certainly killed by the Nazis, and although there remains a remnant of the Jewish community in Lviv, it is just a remnant. Thus, I have tended to regard events in Ukraine much in the way I regard events in other foreign countries to which I have no personal connection. I am not indifferent, but I have felt no special concern for Ukraine.

Indeed, if I am to be fully honest, I will also add that my lack of attachment to Ukraine was based in part on my understanding that many Ukrainians were willing participants in the liquidation of their Jewish neigbhors--an understanding based on reading historical accounts and many discussions with my late mother-in-law, who grew up in the same region as my own ancestors (in the town of Stryi, just to the south of Lvov), and survived the Holocaust, even as nearly all of her family was killed. Of course I don't blame the children and grandchildren for the sins of the parents and the grandparents, but because Ukraine--as part of the Soviet Union--never underwent the sort of soul-searching that (West) Germans did after the war, the old attitudes survived longer in the east, or at least so I had come to believe.

Without denying that antisemitism remains a potent force even in areas that were made nearly "Judenrein" by Hitler, I have learned in recent days that the Ukrainian revolution that (for now) toppled Yanukovych was in fact multi-ethnic--and that even as the Kremlin describes the new government in Kiev as "fascist" and "Nazi", it was in fact chiefly the ancien regime that sought to exploit antisemitism. Writing in The New York Review of Books, Timothy Snyder provides an eye-opening description that paints the revolution in Kiev as essentially liberal democratic, and the Russian reaction as fundamentally authoritarian. David Remnick makes complementary points about Putin's intentions in The New Yorker.

Writing for a blog that reaches as many sophisticated readers as DoL reaches is a great privilege, but it can sometimes feel like a burden. When something important happens, I feel an obligation to say something--preferably something that I know at least a little bit about. In thinking about the situation in Crimea and the rest of Ukraine, I asked myself whether I had anything special to contribute. I thought about writing a post in which I would argue that the tendency of the United States to invade other countries in violation of international law (see, e.g, GW Bush, Iraq) undermined our leaders' ability to criticize other countries for the same behavior. Yet that seems mostly beside the point.

To be sure, I suppose that the posture of America and the West since the fall of the Berlin Wall  has tended to reinforce the Kremlin's fears of encirclement, and some of that Western posture has consisted of making nearby war in violation of international law (see, e.g., Clinton/NATO, Kosovo). But if the question is whether Putin would have hesitated to take the steps he is now taking if the U.S. and the West had greater credibility on the legal issues, I think the answer is clearly no. Questions of international law have played the same role here as they played in Hungary in 1956, in Czechoslovakia in 1967, and in Georgia in 2008. That is to say, none.

And so, without a point to make about the law, I am left to state an expression of solidarity. Snyder asks the following question about the Kiev Revolution:
Has it ever before happened that people associated with Ukrainian, Russian, Belarusian, Armenian, Polish, and Jewish culture have died in a revolution that was started by a Muslim? Can we who pride ourselves in our diversity and tolerance think of anything remotely similar in our own histories?
Understandably not wanting to bring about nuclear armageddon, neither the U.S. nor the E.U. will provide direct military support to Ukraine. In such circumstances, perhaps the most we can do is to stand with the Ukrainians who began this revolution.  In time--and perhaps already--their revolution will take on a nationalist tinge, with all of the associated ugliness. But that will mostly be an effect of the Russian intervention, not its cause.

When JFK said "ich bin ein Berliner", he was expressing solidarity, not threatening military action in what was understood to be the Soviet sphere of influence.  The least we can do now is to express the same. So for me, for the first time, and at least for the time being, I'll say: Я український.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Monday, 03 Mar 2014 14:00
-- Posted by Neil H. Buchanan

[Note: My Dorf on Law post this past Friday, in which I examined the rhetorical power of invocations of slavery in public policy debates, discussed the film "12 Years a Slave" at some length.  I did not know as I wrote that post, of course, that the Best Picture Oscar would be awarded to that movie at last night's gala.  Indeed, I had forgotten all about the Oscars.  In any event, even though the award was not necessary to validate what is one of the most important films of recent years, it was a well deserved recognition of a powerful achievement.]

My most recent Verdict column, published last Thursday, asks if "conservatives really want people never to retire."  Obviously, I am not claiming to have heard any conservatives say that they do not want people to be able to retire.  Instead, I argue that the inevitable logical extension of their arguments must be either that they do not want anyone to be able to retire, or perhaps that they only want people who are wealthy to be able to retire.

That is, I am not asking, "Can conservatives really mean it when they say that they do not want people to be able to retire?" but rather, "Don't conservative arguments naturally imply that people would not be able to retire, even though conservatives have never said so, and even if they would be uncomfortable with that implication?"  My column shows that, applying standard orthodox economic reasoning, conservatives' logic would, indeed, seem to lead to that unexpected conclusion.

In the recent squabble over whether "Obamacare will kill 2.5 million jobs," a prominent conservative economist was horrified when liberals applauded estimates that some people would be "unlocked" from their jobs by the availability of health care coverage through the Affordable Care Act (ACA).  The Congressional Budget Office had published estimates that, by 2023, people might choose to reduce their labor supply in an amount aggregating to 2.5 million fewer worker-years of work.

This reduction in labor supply would be the result of some unspecified (and unknown, because the economic model used to generate the estimate cannot provide the specific sub-totals) combination of people working fewer hours because of a fear of losing health-care subsidies due to income phaseouts, moving among jobs because people no longer need to stick with a bad job merely to hold onto good (or any) health insurance, or retiring early from jobs because they will no longer need to wait until age 65 to qualify for something like Medicare.

It is that final category (early retirement by physically beaten-down people, who will no longer need to continue to harm themselves by hanging onto jobs because of the medical benefits) that provides the point of departure in my column.  Looking at that category in particular, liberals have said, "And that's good!"  That is, we asked why it would not be a good thing for people to exercise their free choice to end their participation in the paid work force.  The ACA makes it possible to do so, by giving people a broader range of choices than they faced prior to the ACA's enactment.  Conservatives said, in essence, that liberals were wrongly celebrating a distortion in the labor market.  That is, these additional people will only be able to retire because of the ACA, and the ACA is a government policy that distorts the labor market, so those people should not be able to retire.

As always, the "should" in the previous sentence raises a red flag, because orthodox economists' obsessive desire to maintain their scientific veneer requires them ritualistically to deny that they have anything to say about normative matters.  They might (or might not) be able to stop themselves from saying that the increased early retirements are bad, but they can at least claim that the change in the labor market will be inefficient, leaving it to the listener to draw the obvious normative implication.  Maybe, these economists will grudgingly allow, the proverbial "philosophers and politicians" will conclude that there are moral (or simply unprincipled) reasons to tolerate the economic inefficiency that the ACA will surely cause, but the orthodox economic view is that the shift in labor supply is surely evidence of the ACA's economic inefficiency.

As I argue in my column, however, that reaction by conservatives exposes their opportunistic use of the pre-ACA laws as the correct standard of comparison in determining whether a policy is efficient or inefficient.  If the reduction in labor supply is presumptively inefficient, then these economists must have silently assumed that the labor supply without the ACA is efficient.  Or, at the very least, they must be assuming that reducing labor supply moves us in the wrong direction, even further away from some other hypothetical efficient equilibrium, from which real-world policies that have been enacted by stupid politicians have already moved us.

At this point, however, we start pulling on the thread of what it means to have a hypothetical standard of comparison that represents the "no government intervention" world so dearly loved by conservatives.  If their argument is that people should not be able to rely on provisions of the ACA to retire -- and note that I am deliberately dropping the pretense that they are not really saying "should" and "should not" in their pronouncements -- then what should people be allowed to rely upon in their retirement?

Surely, they cannot be allowed to rely on Social Security or Medicare (and definitely not Medicaid, which is means-tested).  "Get your government hands off my Medicare!" is still one of the most revealing moments of ignorance in recent political history, but it was not merely one confused retiree who said it.  One of the most celebrated conservative economists once said: "[J}ust wait till you see Medicare, Medicaid, and health care done by the government."

But the government's retirement programs are not the only things that are out of the picture, in terms of constructing a hypothetical standard of comparison to determine whether a reduction in labor supply is efficient (moving toward that hypothetical standard) or inefficient (moving in the opposite direction).  Government-subsidized retirement savings plans like 401(k)'s are out, because those tax code-based subsidies, by the logic of orthodox economics, would presumptively move the economy away from the efficient amount of saving toward a world with too much saving.

But then, any amount of saving (other than storing physical commodities in fallout shelters) is only going to be possible if financial institutions are forced to honor their legal commitments, by a government that defines and enforces laws of contract that are not given by God.  Certainly, there can be no government-provided deposit insurance, protecting depositors against bank runs.  Pushing the logic yet a further step back, the money that would be deposited into those government-protected accounts would have to come from one of two sources,  either (1) the fruits of one's labor, the wages of which have been paid in full because the government has made it clear that it will enforce at least the most minimal labor laws (unpaid labor being theft, after all), or (2) the proceeds of inheritances and gifts, which exist only due to property laws, estate laws, and so on.

I am, of course, now talking about the familiar "baseline question" that I have discussed frequently here on this blog.  This discussion, however, helps to clarify some confusion in academic discussions about the required role of government in making economic activity possible.  Frequently, people will say that this is "the Murphy/Nagel point," referring to an already-classic 2002 book by the NYU philosophers Liam Murphy and Thomas Nagel, The Myth of Ownership.  Indeed, I have made that error in casual conversation myself.

In fact, Murphy and Nagel's innovation was not the observation that economic activity is only possible when a government exists.  Economists of earlier generations (that is, economists who had not yet completely bought into the current orthodoxy, but instead were willing to think more broadly) were fully aware of the absurdity of talking about "no-government worlds," or "states of nature" where economic activity magically took place without government-created and -enforced rules.  Early legal realists were aware of this as well.  Neither Murphy nor Nagel would claim to have been the first to make this point.

Their argument was that the logical absurdity of talking about a no-government world makes it logically incoherent to talk about (much less measure) "before-tax income."  That is, because there is no economy without a government, and there can be no government (even a minimalist one) without tax revenue, it is not meaningful to ask how much money a person would receive as a result of market transactions, if there were no taxes being collected.  Because different tax laws will change economic behavior in different ways, measurements of pre-tax income will differ, depending upon how the government is presumed to be collecting the money necessary to allow economic activity to proceed in the first place.

This is why so much of the discussion in the Murphy/Nagel book is directed against "street libertarianism," with its claims (by people like George W. Bush) that "government should let people keep their money."  Ownership is a myth, after all, because we cannot know what is ours until the government's laws (including tax laws) have been put into effect, and differing versions of those laws -- each of which is as "natural" as any other -- will result in different people owning different things.

When I talk about the "baseline problem," I proceed from the same premise, but I am making a different point.  Because there are no pre-political arrangements of economic endowments, there can be no meaningful way to define "efficiency" in the orthodox economic sense.  Orthodox economics, after all, must have a baseline against which to compare the real-world outcomes that we actually experience.  If we cannot define what is efficient (even theoretically), then we cannot know what is inefficient, or even what is more efficient or less efficient.

I first discussed the baseline problem, without using that label, in 1998, in a draft of an article that was not ultimately published until 2005, as a book chapter under the title "Playing With Fire: Feminist Legal Theorists and the Tools of Economics."  Like Murphy and Nagel, I would never claim to have been the first to notice that there is no such thing as a no-government world.  Like them, I am working from that premise to undermine a political claim that has been cloaked in apolitical garb.  In my case, the claim in question is that there is a way to know that people's responses to a change in policy can meaningfully be condemned as inefficient.  (I also do not claim to be the only person ever to have made this basic claim about efficiency.  I do think that I am extending it in some new, and hopefully useful, ways.)

To summarize: Murphy and Nagel use the "no state of nature without government" premise to make a point about taxes, while I use that same premise to make a point about economic efficiency.

Because this post is already far too long, I will stop here.  In a future post (or, more likely, in a series of future posts), I plan to explore the question of whether there are meaningful ways, short of a fully specified baseline, to compare two policies (or two states of the world), and call one more efficient than the other.  That, it turns out, is a very difficult question.

For now, however, we can at least stop to enjoy the moment when a top-line conservative economist inadvertently revealed how meaningless is the notion of efficiency.  If the ACA is bad (or inefficient) because it will change people's decisions in the marketplace, then everything is bad/inefficient.  But then nothing is good or efficient, except whatever it is that might serve the political purpose of that economist and his comrades in Congress.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Friday, 28 Feb 2014 19:24
-- Posted by Neil H. Buchanan

My new Verdict column, published yesterday, is mostly devoted to an extension of my analysis of the "baseline problem" (which I also discussed in a Dorf on Law post two weeks ago).  On Monday, I will publish a post that summarizes that column, and that further develops the core of my argument.

Today, however, I want to take a bit of a detour.  In yesterday's column, as I will explain below, I struggled with how to use the example of slavery to further my argument.  Based on my difficulty in using that example, I have been thinking about the great potency of references to slavery in modern policy discourse, and why that power is problematic, in ways that merit further scrutiny.

We can, I think, stipulate that there are situations in which the slavery example is directly implicated.  If, for example, one were to note that United States history includes prominent examples of shameful policies, it would be strange indeed if slavery did not lead the list -- and it would be outright suspicious if it were omitted from the list entirely.  Along with internment of Japanese-American citizens during WWII, and other race-related policies and legal decisions (Jim Crow, Plessy), we would add to the list the disenfranchisement of women for over a century of our history, the continuing failure to address gender-, class-, and race-related economic and social inequality, and we might add Lochner as well as the anti-labor policies of the early industrial era.  But slavery is clearly the leading example of national shame, and talking about it in that context would be essential.

The next category might be thought of as conversations in which slavery is one of many pertinent, illustrative examples, but not a necessary one.  For example, earlier this week, in a post about the right's "religious freedom" political strategy, Professor Dorf wrote: "By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation."

That is a powerful example, and it explicates Professor Dorf's point well.  One could imagine him choosing a different example (although I cannot think of any), but mentioning slavery there was anything but a reach.  Even so, we are already treading into territory where one starts to become a bit nervous, because once slavery is part of an analogy -- X is "like slavery" in one way or another -- then we must take great care to be sure that slavery is not somehow trivialized.  Again, I think Professor Dorf's use of the analogy easily passes this test.  He uses a powerful example, but not in a way that uses the uniqueness of slavery to exaggerate the power of his actual point.  One could, however, imagine another author being less careful.

In fact, I might be an example of that less-careful kind of author.  In my Verdict column today, I describe the difficulty that I have faced in trying to explain how the notion of economic efficiency is contingent on the laws under which economic activity is carried out.  I have, at various times, made the point that abolishing slavery would be inefficient (under the standard economic analysis), in a world where slavery is legal, while enacting a slavery regime would be inefficient, in a world where slavery was not currently legal.

Although that example is correct and directly pertinent, it is only one of an uncountable number of examples that could be mustered to make the same point.  I have deliberately used the slavery example to convince people that the stakes in economic efficiency analysis are anything but boring or sterile, but rather that human freedom itself can be implicated by the analysis.  Unfortunately, the impact of that example is possibly too great.  As I noted in my column, one smart and well-meaning person has told me that his reaction to my example was: "All right, so slavery is always a special case.  What else ya got?"

As frustrating as that reaction was, I do understand it.  Seen in all of its horrors, slavery is uniquely awful.  During my Tax Policy Seminar last semester, the discussion at one point slipped into some casual (but not ill-spirited) opining about how some policy or another was "like slavery" in some meaningful way.  Finally, one student said, "We need to remember that nothing is like slavery."  He reminded his fellow students (and me) that slavery was far more than forced labor without pay, extending to grotesque violence and the complete dehumanization of the people who were enslaved.

Early in each semester, I discuss in my basic tax law course the "tax protester" arguments against the legality of the federal income tax (and, for that matter, all taxes).  The low/high point of that discussion each term is when I note the protesters' claim that the federal income tax violates the 13th Amendment's abolition of slavery and involuntary servitude.  Part of that argument (if one can call it an argument) is surely based on the idea promulgated by a prominent right-wing anti-tax group, which annually announces the day on which people are "free" from taxes.  The idea is that, if taxes were to add up to, say, 25% of one's gross annual income, then somehow one spends the first three months of the year "working for Uncle Sam," and then after March 31, one is "free" to work for one's own benefit.

Although the think-tank that promotes that nonsense does not go so far as to join the tax protesters in their misapprehension of the 13th Amendment, the idea of being free to work for oneself, versus being in the servitude of others, is clearly what animates that annual public relations stunt.  This argument, moreover, has what would generally count as an impressive academic pedigree.  The conservative philosopher Robert Nozick described income taxes as being "on a par with forced labor," because it forces a "person to work n hours for another’s purpose."

When I discuss that argument in class each semester, I generally roll my eyes (because, among other things, most of the students are already laughing in disbelief, even as I describe the protesters' offensive analogy to the 13th Amendment), and then I try to say something substantive by pointing out that no one is forced to work for the government.  That is, if one does not want to pay taxes, one is "free" not to earn an income.  Admittedly, that might sound flippant.  Am I really saying that the choice is to work for the government or to live in a hut?  That is hardly better than forced labor!

The deeper point, however, is that if one does choose to work for an income, one is still not being forced to work for the government rather than oneself.  There is no time during which one is not working for oneself -- "First, I work 3 minutes for you, then I work 9 minutes for me."  The existence of taxes simply changes the terms of the labor exchange, where one ends up not earning as much as one might have thought from looking at the top-line number on the labor contract.  Each minute that one works, one is working for oneself, to receive a wage that is not as high as the gross wage would make it seem.  One can argue at length about whether taxes are too high or low, but they are certainly not involuntary servitude.

Again, however, this argument concedes far too much.  This semester, when we reached that point on the syllabus, I had just seen "12 Years a Slave," a brilliant film that depicted the horrors of slavery in ways that I had never before seen.  That film emphatically makes the point that my student made last Fall: Nothing is like slavery.  In last month's Harper's, J. Hoberman offers a moving review essay discussing "12 Years a Slave" (here, unfortunately behind a paywall), which emphatically made that point as well.  The essay's title, "Here There Is No Why," hauntingly captures the completeness of slavery's dehumanization.  There are no rules, and there need be no explanations.  Things happen, because other people make them happen -- and those people are able to make them happen with the imprimatur of a state that treats slaves as non-people.

About ten years ago, there was a brief flurry of activity among tax policy scholars regarding "endowment taxation."  The idea was that there might be efficiency-based reasons (which end up being too ridiculous to summarize here) to tax people not on their income, but on their potential income.  Under such a system, a person who could be working as a Wall Street lawyer, earning $2 million per year, would be taxed on that amount, even if she had decided to quit her job and live on the beach.  This became known among tax scholars as "enslaving the beachcomber."

One can understand the greater allure of the slavery analogy here.  Unlike Nozick's argument about income taxes, which ultimately relies on a false segregation of working time into "free time" and "forced time," an endowment tax could essentially prevent a person from quitting a high-paying job (unless she had savings from which she could pay her taxes).  The former lawyer might be "forced" by such a tax system to return to lawyering, which would be an impingement on her liberty.

But come on!  She would not be forced to work for a particular law firm, or in a particular city.  In fact, she would not necessarily even have to practice law, if there were non-law jobs that she would prefer that would pay enough to cover her taxes.  She would remain free to marry whom she wished (SSM issues very much acknowledged here), to live where she wished (within the constraints that all of us face, given economic realities in our lives), to travel on vacations, and so on.  She would not be whipped, raped, or separated from her children.

These powerful images are important to bear in mind, no matter how uncomfortable they are, because it is essential to remember what it means to casually call something "like slavery."  Something called "Godwin's Law" holds that "[a]s an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1."  The idea is that, no matter the subject of discussion, at some point someone will become angry or desperate enough to claim that the other side is "a bunch of Nazis," or something similar.

Slavery, too, holds the power to distort rational discussion.  My example, showing how slavery can be efficient or inefficient, depending upon one's viewpoint, does not deny the awful reality of slavery.  If anything, I could argue that as people think more about slavery's horrors, the idea that it can be called economically efficient only strengthens my point.  But I get it.  For good reasons, people respond to the use of slavery as an example with trepidation.  There are too many idiots out there saying too many stupid things about slavery to imagine that this topic can be analogized casually.  It is not off the table, but especially now that millions of people have been educated about what pre-Civil War slavery in the United States actually meant, using slavery as an example must be done with the greatest of care.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 27 Feb 2014 02:10
By Mike Dorf

In vetoing Arizona SB 1062, Governor Brewer pointed to its possible "unintended and negative consequences."  I've been thinking about those consequences and I came to a surprising conclusion: If SB 1062 had been enacted, its chief statewide effect--indeed possibly its only statewide effect--would have been to create a religious right of businesses to discriminate on the basis of sex.  That's right, sex. Not sexual orientation.  Or at least not mostly sexual orientation.  Let me explain.

As numerous commentators have noted, even without SB 1062, it is already permissible under Arizona law for private parties to discriminate on the basis of sexual orientation--even if they are merely ordinary bigots rather than religiously motivated bigots.  Thus, while the intention of the sponsors of SB 1062 may have been to provide a shield for sexual orientation discrimination, at the state level that shield was not necessary. I suppose they may have worried that in the future the Arizona legislature would provide protection against sexual orientation discrimination, but of course a future Arizona legislature could also repeal or modify the religion exception, so if that was their worry, their remedy was pretty weak.

Moreover, as I explained in my Verdict column earlier in the week, if federal anti-discrimination law were amended to provide protection against private sexual orientation discrimination, then an Arizona exception for religiously motivated discrimination would be ineffective under the Supremacy Clause. To be sure, it might not be needed even there, depending on how broadly or narrowly the courts construe the federal RFRA, but at least for now, SB 1062 looked like it would have provided broader exceptions than the federal RFRA.

Thus, the question arises: Would SB 1062 have provided exceptions to any state law? By common law and by its state constitution, Arizona treats some businesses as common carriers with obligations to serve the general public, presumably including gay people.  SB 1062 also would have provided exceptions to local ordinances, like the Phoenix one, that included sexual orientation on the list of forbidden grounds for discrimination.

But what about at the statewide level? There, the real bite of SB 1062 would have been with respect to antidiscrimination law that applies to most or all businesses. So, are there categories of discrimination that are forbidden by Arizona law but permitted by federal law, such that SB 1062 would have broadened the exception to them? I did a little research and found that the answer is yes.

Federal civil rights law forbids discrimination in public accommodations "on the grounds of race, color, religion, or national origin." Arizona civil rights law forbids discrimination in public accommodations "because of race, color, religion, sex, national origin or ancestry."  Did you see that? Arizona law, but not federal law, forbids discrimination in public accommodations based on sex and ancestry.  Let's put ancestry aside because nearly all actionable ancestry discrimination will already be covered by one of the other categories. That leaves sex discrimination as the one category of discrimination in public accommodations banned by Arizona state law but not federal law.

My first thought on making this discovery was "Really?" It doesn't violate federal law for a restaurant to keep out female customers? Holy crap! Why didn't I know that?

Other than inexcusable ignorance on my part, the answer is that state public accommodations laws tend to apply to a bigger list of proscribed categories of discrimination than federal public accommodations law does. And that's true of Arizona too. Under current law, a Phoneix Hooters can't keep out women.

SB 1062 would have changed that, at least for a Hooters (or other business) owned by a religious sexist. A business owned by someone who thought it unGodly to serve women wearing pants, or to serve women with uncovered hair, would have been sheltered by SB 1062.

Was that sort of "unexpected consequence" a realistic scenario? Maybe.  Charges of sex discrimination in public accommodations do arise from time to time.  Moreover, given the tendency of religions to regulate gender relations, it's not hard to imagine a case in which a religious objection would ground refusal to comply with the sex discrimination prohibition.

Now it's important to remember that SB 1062 would have taken the form of an expansion of Arizona's RFRA, which, like the federal RFRA, allows for the application of laws that substantially burden religious freedom, so long as the laws satisfy strict scrutiny. If SB 1062 had gone into law, would the Arizona courts have said that the state's interest in sex equality trumps religious freedom? Maybe, but there's no guarantee.

After all, the same strict scrutiny test applied (as a matter of expressive association under the First Amendment) in Boy Scouts of America v. Dale; yet there the SCOTUS casually dismissed the idea that an equality interest satisfied strict scrutiny.  There are differences in context, to be sure, but the very idea of religious exceptions to civil rights statues appears to imply that sometimes the equality norm will fail to overcome the religious objection.

So, although they may not realize it, the women of Arizona (and for that matter the men, who also could have been denied service based on their sex under SB 1062) owe Governor Brewer thanks.

[NB: This is a revised version of the post, to take account of local ordinances. Thanks to Garrett Epps.]
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Wednesday, 26 Feb 2014 05:11
By Mike Dorf

Continuing with the theme of religious exceptions to general laws that I explored on SCOTUSblog and here on DoL in connection with the pending Supreme Court cases on the ACA contraception mandate and RFRA, my latest Verdict column looks at the Arizona bill now on Governor Jan Brewer's desk that would expand the state's RFRA, and at similar bills around the country. As I explain in the column, these bills differ somewhat from each other. Whereas other state bills would explicitly license religious exceptions to laws forbidding sexual orientation discrimination, the Arizona bill would expand the state RFRA generally. If enacted, it would provide broader religious exceptions (including exceptions for for-profit businesses) from laws restricting race discrimination, protecting the environment, etc. Nonetheless, the clear impetus for the Arizona bill is the same as the impetus for the more expressly homophobic bills that have been introduced in sister states: Fear that people with religious objections to same-sex marriage or to homosexuality more broadly will have to set aside those objections to comply with anti-discrimination law.

The conclusion of the column (spoiler alert!) is that the Arizona bill (whether or not signed by Gov. Brewer) underscores the need for the expansion of federal anti-discrimination law to cover sexual orientation discrimination.  Under the Supremacy Clause, federal protection against sexual orientation discrimination would supersede any state exceptions. To be sure, absent an explicit proviso, even a federal statute would be subject to the federal RFRA--and there's a risk that the SCOTUS will construe the federal RFRA to provide religious exceptions for for-profit businesses in the pending cases. Indeed, even without the federal RFRA, it may not yet be possible to secure congressional legislation from Congress expanding anti-discrimination law to cover sexual orientation without including a too-broad religious exception.

But the key word in the foregoing sentence is "yet." Given the long-term trend of public opinion, it is pretty clearly only a matter of time before sexual orientation discrimination is widely regarded as odious. Yes, there will be outliers, and they may never go away.  Aftet all, it's 2014 and the Russian government is employing Cossacks as paramilitary, so history is long. But even now, social conservatives in much of the country are giving up on fighting against LGBTQ equality generally, and focusing their attention on securing religious exceptions. My question for today is this: Is that focus a strategic blunder?

To contextualize that question, consider the following vastly over-simplified account of the last 60 or so years of contestation around social issues.

The first great organizing tool for the creation of the modern socially conservative right was race. From signs calling for the impeachment of Earl Warren through Nixon's Southern Strategy, the modern GOP's aging base of white Southern Christians was built on prejudice against, and fear of, African Americans. Race retains potency today, but for at least the last several decades, open appeals to racism have been outside the mainstream of national politics. For a (long) time, they were coded by discussion of crime, welfare, affirmative action, etc., and those issues have not disappeared, of course. However, race has become only one arrow in the socially conservative quiver.

With the emergence of the modern women's movement in the 1960s and 1970s, social conservative activists rallied around opposition to the ERA, but even though they won that battle, they lost the war--a result that is not especially surprising: It's hard to "other-ize" half the population when they are your own family members.

To my mind, the most effective issue--indeed the only issue with real staying power--for social conservatives, has been abortion. Opposition to legal abortion is rooted for many people in views about the proper role of women, but that's not all it's about. It is possible to think that abortion raises serious moral issues while holding generally progressive views about sex and sex roles.

Accordingly, I believe that the socially conservative right made a strategic blunder when, roughly in the early 1990s, so much of its energy was diverted into opposing LGBTQ rights. Whereas opposition to abortion can be, and I'll admit often is, justified on the ground that it aims to protect innocent vulnerable life, opposition to LGBTQ rights was and is gratuitously mean. The point has emerged clearly whenever trial courts have sought evidence that might be used to support laws banning same-sex marriage or otherwise denying basic rights to LGBTQ Americans: The laws' supporters stumble to articulate nonoffensive justifications, at best relying on "tradition."

Of course, the traditions that have been unsuccessfully invoked to defend anti-gay laws are often rooted in, or at least closely tied to, religious views. Concurring in the since-overruled Bowers v. Hardwick, the late CJ Burger wrote that "Judeo-Christian moral and ethical standards" were a sufficient basis for outlawing "homosexual conduct." But that was never a good argument. In a country with separation of church and state, religious doctrine is an insufficient basis for denying any group of people their basic rights.

However, religious exceptions appear to stand on a different footing. Someone who claims a religious exception from some general obligation does not say that her religious beliefs are a sufficient basis for public policy. She only asks that the contrary views of the majority not be the basis for compelling her to act or refrain from acting in a manner that contradicts her religious faith. Accordingly, there is a strong initial appeal to the move from religion as the basis for discriminatory laws to religion as the basis for opting out of laws combating discrimination.

Nonetheless, I believe that the right's shift towards seeking broad religious exceptions will fail, and may even be a strategic blunder on par with its opposition to LGBTQ rights in the first place. The reason is simple: Religion is not a trump card when the rights and interests of others are involved. Sure, the Supreme Court unanimously upheld a ministerial exemption from anti-discrimination law in the Hosanna-Tabor case. In my view, the Court erred by rooting that principle in the Constitution rather than in statutory construction, and I think the scope of the exception it recognized is too broad, but I understand the argument that the Catholic Church shouldn't have to ordain female priests as fundamentally different from the argument that a for-profit employer shouldn't have to provide contraception coverage or a for-profit florist shouldn't have to serve same-sex couples. In the one case, the exception is largely about the internal regulation of the religion; in the others, it's about interactions with the rest of society. There are borderline cases, of course, but the basic distinction is easy enough to grasp.

By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation.

Finally, even if social conservatives succeed in securing religious exceptions from laws securing equality for LGBTQ Americans, those exceptions will eventually become unusable. Even today, the federal RFRA and state-level equivalents would, in theory, permit people who hold religious objections to racial equality to resist anti-discrimination laws based on race. But virtually no one raises such claims because the same forces that made expressly racist views outside the mainstream of public opinion have made expressly racist religious views impermissible. Nearly all churches that once maintained such views no longer do so because religious views do not exist in a vacuum. Even (perhaps especially) "fundamentalist" religious views are formed in reaction to the broader social context.

Postscript: Readers should not infer from the foregoing that I am no longer pro-choice. For reasons that are connected to my views about non-human animals, I think that mid-to-late-term abortions of sentient fetuses raise serious moral issues, although I don't think that the immorality of (some) abortions necessarily justifies making them illegal. Professor Colb and I are working on a book that explores the complex connections between abortion and animal rights.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 25 Feb 2014 13:00
by Lisa McElroy

In a recent blog post on the Wall Street Journal’s website, Jacob Gershman quoted from a poem and article penned by Georgetown legal writing professor Kristin Tiscione.  Those who are fortunate enough to know Kris know that she is a thoughtful, professional, highly competent professor who has taught an entire generation of Georgetown students.

Although the poem artfully expressed the frustrations of the 94% of legal writing professors who are not eligible even to apply for tenure, it was the comments that caught my eye.

The first two comments on the post compare podium professors to doctors and legal writing professors to nurses.

I’d like to start out by saying that the commenters who said things like “Why should a nurse be paid the same as a doctor?” were incredibly insulting to nurses.  Anyone who has ever had to stay overnight in a hospital – even for a happy reason like delivering a healthy baby – knows that nurses represent the front lines of health care.  Hospitals are nothing like they’re portrayed on Grey’s Anatomy.  In almost all of them, the nurses take care of patients’ psychological and physical needs.  The doctors visit patients for a few minutes at most, once or twice a day.

But when the Robert Wood Johnson foundation recently suggested in a draft report that nurses be paid the same wages for the same work – in other words, paid like doctors – that idea resulted in, shall we say, objections from doctors.  Or so the New York Times – the so-called paper of record – reports.  

Why might that be?  I ask especially because, as an abstract to an article published last year in the New England Journal of Medicine explains, “[Investigators] report that primary care physicians and nurse practitioners often work side by side but inhabit different universes, at least perceptually. Daniel Kahneman, the psychologist and Nobel laureate who helped found the emerging field of behavioral economics, would find this unsurprising. He contends that all humans are influenced by powerful unconscious mental filters that shape how they perceive the world around them. Given the heated debate over the roles of physicians and nurse practitioners in providing primary care in the United States, those filters are probably working overtime when these professionals reflect on their practice experiences and the literature on their respective performance.” (emphasis added)

The abstract goes on to say, “The differing views of physicians and nurse practitioners about their work can have troubling consequences.”

Substitute in “podium professors” for “physicians” and “legal writing professors” for “nurse practitioners,” and you’ve got the crux of the debate that goes on in almost every American law school. And it’s a heated one.

Now, I also think that the comparison of “legal writing professors” to “nurses” is an uninformed one, in many ways.  Even when nurses do the same work as doctors, they are educated differently.  Their training is much shorter.  Their responsibility level is much lower – nurses of many levels of licensing cannot prescribe medication, for example, nor do they have to deal with the responsibility of figuring out the right medicine to prescribe.

But legal writing professors graduated from law school.  In fact, according to a study published recently in the University of Louisville Law Review, 28% of legal writing professors responding to a recent survey had received a J.D. from a “top twenty” law school.   Thirty-six percent had post-undergraduate degrees from a top twenty law school.They incurred the same debt as professors who teach podium courses.  They sat beside them in the same classes.

The difference?  Well, the same study shows that most legal writing professors have far more practice experience than the average podium professor.

And yet, at most law schools, legal writing professors earn far less than podium professors. Sort of like nurses providing the same care as doctors make a lot less than their physician counterparts.  Huh. 

But, you might say, legal writing professors don’t do the same job as podium professors.  And, at many law schools, you might be right.

Most legal writing professors are not required to publish law review articles to keep their jobs.  Most podium professors are.

But most podium professors are not required to give detailed feedback on student writing.  To meet one-on-one with students on a regular basis.  To counsel and coach students through the process that is legal analysis.

To work on the front lines of student care.

That’s an awful lot of responsibility vis-a-vis students.  It’s pretty much ensuring that these students are qualified and competent to represent clients in the practice of law. 

I’m not necessarily arguing that all legal writing professors should automatically be eligible for tenure.  I’m not unrealistic enough to think that tenured faculties (including the one of which I am proud to be a part) will change their thinking about the “publish or perish” tradition.

But Kris Tiscione’s poem, the WSJ blog post, and the comments on the blog should make us think about equal pay for equal – albeit somewhat different – work. 

I’ll tell you what.  Next time I need an IV inserted, or a dressing changed, or a kind word uttered, I sure hope there’s a nurse around, one who’s paid a living wage. 

And for my law students?  I hope that they’ll benefit from the incredible community of legal writing professors, people who struggle to get by but give their hearts and souls to their work. 

My last hope?  It's that, not too long from now, Kris Tiscione will have grounds to write a more optimistic poem.  And when that happens, I hope the Wall Street Journal will report on it.
Author: "noreply@blogger.com (Lisa McElroy)"
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Date: Tuesday, 25 Feb 2014 03:01
By Mike Dorf

I just wanted to take a moment to note the tragically premature death of my dynamo of a colleague, Ted Eisenberg. A first tribute to Ted can be found here.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Monday, 24 Feb 2014 12:30
By Mike Dorf

[N.B. I posted a nearly identical version of the following essay on SCOTUSblog's symposium on the contraception mandate cases. I'm reposting/cross-posting here on DoL for the benefit of those readers who didn't read it there.]

The Supreme Court granted certiorari in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius to resolve a question of statutory construction:  Does the Religious Freedom Restoration Act of 1993 (RFRA) entitle a for-profit corporation to an exemption from the requirement of providing employees with health coverage that includes contraception, on the ground that the owners of the corporation have religious objections to providing such coverage?  That is an important question that the other participants in this symposium and the Justices themselves are now considering.

In this essay, however, I want to ask an antecedent question: Why is RFRA constitutional as applied to the federal government?  In particular, I want to focus on a separation-of-powers objection to RFRA that the Court has never fully considered.  Before coming to that point, though, I shall distinguish three other sorts of constitutional objections that have been made against RFRA.

First, as applied to the federal government, RFRA falls within Congress's enumerated powers, notwithstanding the Supreme Court's decision in City of Boerne v. Flores.  There the Court held that, as applied to states and their subdivisions, RFRA was not a valid exercise of Congress's power to enforce the Fourteenth Amendment.  Because RFRA as applied to state and local government cannot plausibly be understood as an exercise of any other enumerated power, it was effectively held invalid under the Tenth Amendment.  But as a limitation on federal power, Congress clearly had the power to enact RFRA, because in that context RFRA is simply the withholding of federal power.  When it provides exceptions to laws passed under the Taxing Power, RFRA (un)exercises the Taxing Power; when it provides exceptions to laws passed under the Commerce Power, RFRA (un)exercises the Commerce Power; and so forth.

Second, concurring in Boerne, Justice Stevens opined that RFRA violates the Establishment Clause because it favors religion over non-religion.  No other Justice addressed that issue, however, and in Cutter v. Wilkinson the Court unanimously rejected an Establishment Clause challenge to the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Justice Ginsburg wrote for the Court that RLUIPA did not grant religious persons special benefits but merely lifted government-created burdens. That should not have been a fully satisfactory response to the Establishment Clause objection, because it fails to answer the question of why the government can lift burdens it has created for people with religious scruples but not for people with other sorts of scruples.  Nonetheless, Cutter pretty clearly forecloses an Establishment Clause challenge to RFRA because RFRA is materially similar to RLUIPA.

Third, shortly after the Supreme Court's decision in Boerne, a student note in the Columbia Law Review (paywall link only) argued that RFRA was invalid even as to the federal government because Congress lacks the authority to amend the entire U.S. Code in one fell swoop.  According to the author of the note (who was my student at the time), by purporting to amend the U.S. Code wholesale, RFRA accomplished through ordinary legislation what the Constitution's Article V permits to be accomplished only through an amendment:  reversing the Supreme Court's construction of the First Amendment in Employment Division v. Smith.  In my view, this argument proves too much, unless one is also prepared to say that statutes like the Dictionary Act -- which defines terms for the U.S. Code on a wholesale basis -- are also invalid.  Absent the violation of some external norm, as in a case like United States v. Windsor, in which the Court invalidated Section 3 of the Defense of Marriage Act on equal protection grounds, there is no constitutional bar to Congress amending its own statutes on a wholesale basis, even if the effect can in some respects be said to mimic what might alternatively be accomplished via a constitutional amendment.

If the foregoing three objections were all that could be said against the constitutionality of RFRA as a limitation on federal action, then it would be hard to quarrel with the Supreme Court's having taken the issue for granted in a unanimous decision finding a right to a religious exception to the application of the federal Controlled Substances Act to a hallucinogenic tea in Gonzales v. O Centro Espirita Beneficenteuniao do Vegetal.  Yet there remains one more objection to RFRA that the Court has not considered.

Justice Scalia's opinion in the Smith case offered a number of grounds for the conclusion that the Free Exercise Clause does not entitle religious objectors to exceptions from neutral laws of general application, but one crucial piece of his argument for the Court was that judges are simply not competent to make the sorts of judgments needed to administer an exceptions regime.  The clearest expression of this view appears in footnote 5, in which he states, in response to an argument offered by Justice O'Connor in her concurrence in the judgment: "it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice."  But the point is also plain enough in the text of the Smith opinion, where Justice Scalia states that it is simply not "appropriate for judges to determine the 'centrality' of religious beliefs."

It is not entirely clear which part of the Constitution Justice Scalia (and four other Justices) thought would be violated by judges weighing the importance of general laws against the significance of religious practice, or by having judges determine the centrality of religious beliefs.  The claim appears to sound in anti-Establishment principles.  It is a cousin of the principle that courts should not pass judgment on whether religious propositions are true or false.

But Justice Scalia takes a very narrow view of the Establishment Clause in other contexts – for example, in his concurring opinion in Van Orden v. Perry, in which he contends that "there is nothing unconstitutional in a State's favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments."  Thus, it is hard to believe that he would base the Smith rule on anti-Establishment principles without even saying so.  And he did not join Justice Stevens in the latter’s anti-establishmentarian concurrence in Boerne.

Moreover, quite apart from how it would fit with Justice Scalia's other views, the opinion in Smith itself cannot be read to condemn religious exceptions as violating the Establishment Clause.  The opinion specifically approves of democratically accountable bodies granting specific religious exceptions.  If the balancing needed to decide whether an exception was warranted violated the Establishment Clause, it would violate that Clause regardless of which government officials – legislators, executive officials, or judges – did the balancing.

Accordingly, we might read the Smith majority opinion to say that the plaintiffs were asking the Court to perform a non-judicial task.  In this view, Article III – or perhaps separation of powers – makes judges especially unsuited for this sort of balancing.  Justice Scalia's disapproval of balancing in Smith thus calls to mind his disapproval of balancing generally, both in his academic writing and in his work on the Court, as when he complained that the Court's dormant Commerce Clause balancing test is "like judging whether a particular line is longer than a particular rock is heavy."

If Smith does rest on some principle that the Constitution forbids courts from weighing the importance of a religious practice against the importance of a general law, then RFRA would be invalid under this principle, for Congress has no power to require the courts to undertake a non-judicial task. Just as Congress cannot authorize the Court to hear cases in which the plaintiff lacks standing or cases that would call for an advisory opinion, so too, in this view, Congress cannot require the Court to apply a test that the Constitution makes the courts incompetent to apply.

Why, then, does the Court apparently think that it can apply RFRA notwithstanding Smith's pronouncement that the application of the compelling interest test to weigh religious freedom against government interests is unconstitutional?  Consider five possibilities, which are not meant to be mutually exclusive.

First, it is conceivable that the Court has not explained how RFRA is consistent with Smith's declaration that courts cannot balance religion against state interests because the issue has not been squarely presented to the lower courts and preserved on appeal.  If so, then the Court will apply RFRA in Hobby Lobby as well, and will continue to apply RFRA without addressing this issue unless and until some case squarely presents it.

Second, one might read Smith to say that weighing religious freedom against government interests is very difficult for judges, and generally something that they should try to avoid, but not that doing so is unconstitutional.  This reading is a bit difficult to reconcile with the adamancy of the Smith pronouncements, but supported by the fact that the Smith Court does not expressly say that it would be unconstitutional for the courts to engage in the "horrible" balancing, and the absence of any statement of what part of the Constitution such balancing would violate.

Third, perhaps the weighing that the Smith Court thought was forbidden under the Free Exercise Clause is different from what RFRA requires.  Justice Scalia's chief objection in Smith appeared to be to the necessity for determining whether a practice is "central" to a person's religion, but RFRA focuses instead on whether the law "substantially burdens" religious practice, a test that does not expressly call for a centrality inquiry.  But given that RFRA purports to "restore" the very pre-Smith test that Smith rejects, and that Justice Scalia's Smith opinion indicates that this test can avoid swamping the government with exception requests only if it includes a tacit inquiry into centrality, this approach would require a substantial retreat from the Smith principle under discussion.

Fourth, we may be witnessing such a retreat.  Smith divided the Court more or less on ideological lines, with liberal Justices favoring an exceptions regime and conservative Justices opposing one.  Since then, liberals generally have continued to promote religious exceptions, and conservative hostility to them has reversed.  Outside of the courts, that trend began with RFRA itself, which passed with overwhelming bipartisan support.  It has accelerated in recent years, as conservatives have come to embrace religious exceptions from laws forbidding sexual orientation discrimination and, as Hobby Lobby itself illustrates, laws that impose obligations respecting abortion or contraception.  Arguably, the Supreme Court's unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, finding that the First Amendment requires a broad "ministerial exemption" from federal anti-discrimination law, shows that the bipartisan approval of religious exceptions has now taken over the Court itself.  Although the Hosanna-Tabor Court distinguished rather than overruled Smith, the cases stand in considerable tension, as I discussed on my blog when the former was handed down.

That leads me to my fifth and final possibility: Perhaps a majority of the Court has come to think that Smith was wrong in claiming that the crafting of religious exceptions from generally applicable laws is inconsistent with the judicial role.  If so, that would be welcome news, because the claim never had much going for it.  As noted above, the First Amendment grounds for saying that balancing is forbidden seem quite weak (because the Smith Court allows legislators to do the balancing on a law-by-law basis), while Justice Scalia's general hostility to balancing is surely not a constitutional principle. Indeed, based on traditional iconography of the scales of justice, it would seem that, notwithstanding Justice Scalia's objections, judges are especially well suited to engage in balancing.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Saturday, 22 Feb 2014 18:01
-- Posted by Neil H. Buchanan

Two days ago, I wrote a Dorf on Law post in response to a NYT op-ed column by Nicholas Kristof.  Kristof, writing in last Sundays' "Review" section, argued that professors have made themselves irrelevant to the great public debates, by becoming too specialized and obscure (and none-too-subtly suggesting, as I will discuss below, that academics are too liberal).

I argued in response that Kristof is simply wrong to suggest that the media and political worlds are starving for enlightened guidance from an indifferent academy.  What Kristof identifies as a matter of under-supply (not enough professors trying to influence the public discussion) is in fact a matter of inadequate demand on two fronts: people in the media who don't know and don't care to find out if there are actual experts available to weigh in on important topics (with media outlets preferring instead to propagate an incestuous conversation among the usual roster of generalist pundits), and a political culture that is not the least bit interested in hearing from experts whose points of view do not fit neatly into the established political narrative.

My post on Thursday focused on the media and political responses to the debt ceiling, precisely because that is the special case in which the number of people with published academic expertise is quite low: exactly two, in fact.  (To be clear, there are a few papers that have been published about ancillary questions regarding the debt ceiling.  But the Buchanan-Dorf papers are the only ones that have directly addressed the full range of questions that matter for the public debate.)  That the top media and virtually all politicians failed to rely on those experts could not be excused by the argument that there were too many good choices.

And that shows precisely why Kristof's broader argument is so weak.  On every other policy topic, there are literally hundreds (if not thousands) of qualified academics clamoring to be heard.  I am not surprised when, say, my writing about Social Security's non-problems, or about the benefits of increasing the national debt, or in favor of raising taxes on the rich is not picked up excitedly by the media and politicians.  I am momentarily disappointed, of course, but I understand that there is a more than adequate supply of people who are also writing about these subjects, and there are even enough who are taking the relatively counter-intuitive positions that I take.

Every university of which I am aware hires full-time media consultants to promote the work of its professors.  Getting even one mention in a top newspaper leads to congratulatory emails from colleagues and administrators.  The environment is fiercely competitive, such that it is more than a little exasperating to be told by Kristof -- a guy who is famous because he has been given two automatic slots per week on the world's most influential media real estate -- that we are not trying hard enough.

Viewed kindly, Kristof's column could be read as saying: "Professors, I admit that I'm ignorant!  Please help me reduce how often I embarrass myself."  Viewed less kindly, however, one cannot help but suspect that Kristof is fully aware that there is no lack of input being offered by professors from American universities.  If so, then what could be the real point of his column?

The answer, I think, comes in two parts.  First, as one of the letters to the editor of the Times put it: "This is a high-minded, left-leaning form of anti-intellectualism."  (Of course, wouldn't you know it, the author of that letter is a professor of poli sci and humanities at a liberal arts college.  That's just what we would expect him to say!)  To a large degree, Kristof is simply reviving the typical rant against the ivory tower, acting as if research that is not immediately translatable into public debates is per se worthless.  He wrings his hands and says that he hates to criticize, but he obviously is excited to join in the ignorant slander.

But if Kristof is a liberal (and most evidence suggests that he can be reasonably described as left of center), then what is the point of joining in what is usually the tired right-wing pastime of professor-bashing?  The second part of the answer, therefore, has to be able to explain why a liberal would attack a group of people whom he thinks are also liberal.  Kristof is, I think, saying that he finds it inconvenient to try to rely on professors in public policy debates when so much of the work in academia is supportive of liberal arguments.  "How can I call you guys independent experts, when so many of you say liberal things?"

Putting it together, Kristof's argument thus becomes: "Hey professors, you're too obscure and abstract and wasting everyone's time.  Oh, and when I can understand what you say, you don't agree with Republicans enough!"

For example, Kristof goes to the favorite whipping boy of the anti-academic crowd, sociology, as follows: "Many academic disciplines also reduce their influence by neglecting political diversity. Sociology, for example, should be central to so many national issues, but it is so dominated by the left that it is instinctively dismissed by the right."  But the "hard" sciences are central to so many national issues, too, and they are also instinctively dismissed by the right.  Climate change, evolution, epidemiology?  Anyone?  Anyone?

Academics (including sociologists) would love to study the public health effects of firearms, but the right has prevented them from even gathering the necessary data to engage in the research.  Similarly, gathering data on high-end incomes has been stymied for decades by right-wing politicians, fearful of what the evidence will reveal.

Kristof appears to be saying that the way to assess the health of an academic field is to ask whether its practitioners line up with the current partisan make-up of the country.  When did that become a meaningful criterion for intellectual value?  Should biology departments also be concerned about political affiliations?

On some levels, I ought to have been a perfect audience for a column like Kristof's.  After finishing a Ph.D. in economics from a top university, I ended up moving into law, in large part because of many of the problems that Kristof identifies: narrowing areas of specialization, lack of concern for even minimally competent writing, disdain for the practical over the abstract and theoretical, and intolerance of dissent (in Kristof's well-chosen words: "Rebels are too often crushed or driven away.")

Yet we quickly discover that economics is one of the fields that Kristof still admires, because it "is a rare academic field with a significant Republican presence, and that helps tether economic debates to real-world debates."  He salivates over the "empiricism and rigor" of the field, saying that the importance of economics in public debates is a direct result of those supposed qualities.

But the existence of conservative economists, along with liberal economists, is hardly proof that economics is healthy as an academic discipline.  The core requirements to being an economist in good standing -- the very things that Kristof otherwise decries, such as specialization and obsession with quantification -- are inherently conservative, in the sense that one must build one's models on assumptions (such as the insane idea that people are hyper-rational actors) that are preordained to lead to Republican-friendly results.  Attempts to deviate from those assumptions are only minimally tolerated, and only after a person (such as Paul Krugman) has proved that he can play the game the way the conservatives play it.

To the extent that "empiricism and rigor" should matter in economics, the liberals win in a landslide.  When the very high-profile Romney economic advisors in 2012 tried to defend the empirically indefensible claims by their campaign about Romney's tax proposals, they talked about "six studies" that supposedly proved that Romney's plan could work.  It turned out that four of the six "studies" were not studies at all, but simply an op-ed and some online articles.  But even the actual "studies" belied what Kristof still believes to be true: The silly idea that economics as a field converges on what become accepted "truths" by engaging in rigorous, empirical research.

Consider the major policy debates of the past several years.  Would high deficits post-2008 cause interest rates to spike upward?  Conservative economists loudly said that they would.  Liberals said no.  In reality, rates hit historic lows.  Would the Federal Reserve's aggressive actions to save the economy cause inflation to rise out of control?  Conservatives were absolutely certain that it would, liberals just as certain that it would not.  In reality, inflation has dropped so low that we (and especially Europe) are in danger of entering a disastrous deflationary spiral.

The "science" of economics told us that austerity could be expansionary, supposedly supported by studies by a Harvard economics professor.  Those studies turned out to be based on selective empiricism, and more importantly, they were quickly proved utterly false.  Another economics paper told us that there is a 90% debt-to-GDP limit, above which an economy would quickly be destroyed.  That turned out to be wrong, not just in failing to think about the direction of causality (which is one of the things that intellectual rigor would presumably require), but because the study was based on bad computer coding.

More to the point, none of these embarrassments have at all chastened the right side of the aisle in economics.  None of the economists in question have revised, or even questioned, their views.  Writing for lay audiences, they continue to trot out the silliest stuff as if it is science.  (The controversy last week regarding the report on the "2.5 million lost jobs from Obamacare" is just the latest example.)  And when the facts are against them, they simply resort to insisting that their theories embody the received truth.

In short, if economics were truly a rigorous, empirically-driven science, economics departments would quickly begin to look like Kristof's vision of sociology departments -- not because they would be "neglecting political diversity," but because the rubber has now hit the road on nearly every major economic policy question, and the conservative side has lost every time.  His belief that the "Republican presence" in economics "helps tether economic debates to real-world debates" is simply wrong.  The Republican presence in economics tethers real-world debates to non-real-world wishful thinking.

Holding up economics as a model for other academic fields is thus a scary thought.  Even more scary is the sight of a nominally liberal pundit trashing academics for failing to be sufficiently sensitive to the wishes of people who simply will not accept critical thinking.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Friday, 21 Feb 2014 18:32
UPDATE: The follow-up post is now available here:  http://www.dorfonlaw.org/2014/02/blaming-professors-part-ii-kristofs.html

Dear Readers,

Normally, my Friday post would have been published by now.  Because of unforeseen circumstances, however, I will publish the follow-up to yesterday's post tomorrow morning.

My apologies for the delay.  Thank you for reading Dorf on Law.

Neil H. Buchanan
Author: "noreply@blogger.com (Neil H. Buchanan)"
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