• Shortcuts : 'n' next unread feed - 'p' previous unread feed • Styles : 1 2

» Publishers, Monetize your RSS feeds with FeedShow:  More infos  (Show/Hide Ads)


Date: Friday, 12 Sep 2014 11:00
by Michael Dorf

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let me close with four caveats.

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

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

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

(4) Finally, I also want to be clear that I am not saying that I agree with the application of the principle I have identified here in either Miller or Bond. I am only saying that the principle--that background purposes can identify a lack of clarity that does not appear on the face of statutory text--is sound. The principle makes the results in Miller and Bond more plausible than they would be without it, but I am not claiming that it necessarily renders either decision correct.
Author: "noreply@blogger.com (Michael C. Dorf)"
Send by mail Print  Save  Delicious 
Date: Friday, 29 Aug 2014 11:00
by Michael Dorf

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is it possible that a court might nonetheless construe the veto power of the Texas governor in the maximalist fashion I have criticized? Sure. And it's also possible that one or more of the Texas charges will be held inapplicable to Perry's alleged conduct on purely statutory grounds, or that he might be acquitted on the facts. But nothing I've seen thus far from Professor Volokh or anyone else supports the broad claim that a purely discretionary power to veto on policy grounds implies immunity from criminal prosecution for the exercise of the veto power on corrupt grounds.
Author: "noreply@blogger.com (Michael C. Dorf)"
Send by mail Print  Save  Delicious 
Previous page
» You can also retrieve older items : Read
» © All content and copyrights belong to their respective authors.«
» © FeedShow - Online RSS Feeds Reader