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Date: Wednesday, 20 Aug 2014 12:00
by Sherry F. Colb

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whatever its source, I would suggest that it may be time for the Supreme Court Justices (and perhaps for Americans more generally) to apply some critical scrutiny to their willingness to allow extremely long prison sentences to fall under the radar, while money awards -- which take less away from defendants than incarceration does and which, unlike incarceration, may directly help in restoring the wellbeing of injured victims -- trigger outrage and cries of "unconstitutional."  At the very least, there is a tension here, if one is truly concerned about proportionality, that deserves our attention.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Tuesday, 05 Aug 2014 13:27
-- Posted by Neil H. Buchanan

My Dorf on Law post last Thursday asked: "Is the Attack on Social Security Finally Over?" Along with its companion piece on Verdict the same day, that post noted that the political fear-mongering campaign against Social Security, which has been a perennial favorite for nearly all Republicans as well as many Democrats (including President Obama), appears to be in remission.  The annual Social Security Trustees' report was issued last week to virtually no notice (buried on page A14 of The New York Times, for example), and the shouting shows on TV and radio were notably quiet on the subject.

I did not imagine, of course, that this meant that Social Security would remain politically unimportant for very long.  The forces arrayed against such a successful government program have too much to gain, both politically and financially, to leave it alone forever (or even for a few years).  Even so, it seemed possible that the dishonest attacks on Social Security were temporarily on hold.

But it was not to be.  The very next day, the Times ran an op-ed by Boston University economist Laurence Kotlikoff, "America’s Hidden Credit Card Bill," in which Kotlikoff rolled out some very old, and completely dishonest, attacks on Social Security, and on government in general.  I am all too familiar with Kotlikoff, because my first law review article, published in Tax Law Review in 2005, was in substantial part dedicated to debunking the "fiscal gap" and "generational accounting" snake oil that he was repackaging in Friday's Times op-ed.  Even at the time that I wrote that article, a decade ago, I was relatively late to the game, because Kotlikoff's approach had been widely discredited and rejected by people who had studied it.  I added a few additional arguments to the list, before moving on to the main argument of my article, but mine was hardly a lone voice rejecting Kotlikoff's approach.

As shocking as it was to see that Kotlikoff's nonsense was still undead, however, I calmed myself while reading the piece by imagining that this was another of the periodic efforts by the Times's editors to show that they are open to all viewpoints.  Imagine my horror, then, when Kotlikoff reported at the end of his piece that legislation requiring the government to adopt his dishonest "generational accounting" method was introduced last year by two relatively liberal Democratic Senators, Tim Kaine of Virginia and Chris Coons of Delaware, along with two Republicans.

Which led me to ask the question in the title of this post, based on the recurring bit on John Oliver's (fantastic) new HBO show, "Last Week Tonight": How is this still a thing?  In the remainder of this post, I will focus on Kotlikoff's dishonest rhetoric in his op-ed, and in my next post (on Thursday), I will describe the content of the fiscal gap/generational accounting approach that he ceaselessly pushes.  The bottom line is that this should never have been "a thing," and Kotlikoff's efforts to keep it going are fundamentally fraudulent.

The title of Kotlikoff's piece refers to government debt as a "credit card bill," and a "hidden" one at that.  So we know that something evil is afoot.  What is that evil thing?  He tells us that governments cannot permanently spend more than they collect in tax revenues (which is not actually true, but he is just getting started), but they "can certainly leave the bill for their current spending to the young and to future generations."  So the "hidden credit card bill" is apparently a call to arms for younger people to be angry, and Kotlikoff immediately tells us that governments have reasons not to borrow "in broad daylight," but instead to hoodwink people.  But to whose benefit?

Well, apparently old people are living too long, and they are receiving excessively generous benefits from programs like Social Security (which, Kotlikoff incorrectly tells us, pays "hefty retirement benefits").  He tosses out two scary, context-free numbers that CBO has published regarding Social Security's "unfunded obligation": "$24.9 trillion 'through the infinite horizon' (or a mere $10.6 trillion, as calculated through 2088)."  Actually, he does provide context of a sort, saying that the higher number is "nearly twice the $12.6 trillion in public debt held by the United States government," but he gives no reason why it is meaningful to compare those numbers (debt for all time in the future, and total national debt today).   And, as I will explain in detail on Thursday, it is not actually meaningful to do so.

Kotlikoff then invokes the standard notion that Social Security is protected by "the political power of some 100 million Americans 50," who supposedly are selfishly protecting their own benefits at the expense of their kids.   He bizarrely focuses on his 94-year-old mother, who is apparently still going strong and will "keep collecting those Social Security checks for a long time."  So, are we supposed to cut her benefits now?  He never quite gets around to saying what should be done about current retirees.

Instead, he offers the most breathtakingly dishonest argument that I can recall reading in many years.  He equates the government's legal requirement to pay interest and principal on its official debts with its scheduled payments to future retirees.  Noting that his mother collects checks for interest payments on her "small remaining holdings of Treasury Bonds," which "look identical" to her Social Security checks, Kotlikoff confronts (and then immediately sidesteps) the basic problem with his claim that the government's "unfunded obligations" are the same as actual debt: future benefits and taxes can (and almost certainly will) be changed.  That is, whereas the government must pay principal and interest, on schedule, for the official debt, if it decides that it does not want benefits to exceed revenues twenty years from now, it can simply amend the Social Security Act (now or later) to make that happen.

Kotlikoff's response?  "True, Social Security benefits could be cut by Congress and the president. But so can official debt, as Argentina’s likely default reminds us."  Even he cannot maintain that preposterous equivalence for long, however, so he immediately says that "[i]nformal default via the inflationary, easy-money policies of the Federal Reserve since 2007, is more likely."  Odd that those "inflationary, easy-money policies" since 2007 have seen no resurgence of inflation at all.  But I digress.

By this point, then, Kotlikoff is simply playing a medley of the anti-government right's favorite hits.  Government is hiding things from us.  It is captive to greedy seniors.  It is trillions of dollars in debt.  It might become Argentina, or maybe it will simply hyper-inflate the debt away.  He even manages to mention that China is one of our formal creditors, just to keep up the scare-mongering.

Finally, he gets back to his hobby-horse, claiming that the government's total debt (not under CBO's official estimate, but under his preferred "alternative" scenario) is -- are you sitting down? --$210 trillion. And last year, it was $205 trillion.  "Thus $5 trillion was the true deficit" last year.  I will have to wait until my next post to explain where those numbers come from, and why they are so preposterous, but consider two things here: (1) Kotlikoff is claiming that, in 2013, when the spending cuts to which Obama had already agreed were hitting discretionary spending, when the taxes included in the Affordable Care Act had started to take effect (as part of that net-deficit-reducing health care law), and when health care cost inflation in general had continued to come in below forecasts, the government supposedly found itself $5 trillion deeper in "real" debt than it was at the beginning of the year.  (2) Kotlikoff provides no clue that these scary-sounding numbers are computed by aggregating supposed costs and benefits each year into the infinite future, a time during which the GDP's net present value is in the quadrillions (as Paul Krugman and others quickly noted in response to Kotlikoff's piece).

Perhaps most galling, Kotlikoff's final paragraph begins with this: "What we confront is not just an economics problem. It’s a moral issue."  This moral issue is whether we will deceive people, or "systematically measure all the bills and set about reducing them."  It is pretty rich for Kotlikoff to invoke morality and honesty as values, given his calculated (in a literal meaning of that word) dishonesty.  After all, this is a man who is more than willing to distort what others say to score points, as his rant against Krugman for calling Paul Ryan "stupid" (which Krugman did not do), and his sanctimonious call for economists "to act like grownups in speaking with the public," amply demonstrate

Kotlikoff admits (with rather awkward phrasing) that "none of we economists know anything for dead sure," yet he acts as if it is dead certain that his way to calculate the government's obligations is honest, and all other approaches are dishonest.  As I will explain on Thursday, the one thing that is dead sure is that the "fiscal gap" and "generational accounting" are political weapons, far divorced from the truth.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 04 Aug 2014 11:00
by Michael Dorf

When I was an undergraduate thirty-some-odd years ago, I spent a considerable portion of my extracurricular time engaged in organized debate. I participated in parliamentary debate--sometimes called "off-topic" debate--an import from the Commonwealth countries that was seen as something of a refuge from "on-topic" or "NDT" (for National Debate Tournament) debate. In the latter, students would debate the same topic over and over again throughout the year, with an emphasis placed on research (in those pre-computer-age days, symbolized by gigantic files of index cards), and on the ability to speak incredibly fast so as to overwhelm the opposing side. In parliamentary debate, by contrast, topics changed constantly and were announced only minutes before each debate round so that in theory, each debate was extemporaneous. I say "in theory" because many teams cheated by preparing a battery of cases that could be squeezed into the various vague topics. I understand that this trend has continued so that the use of prepared cases is no longer considered cheating.

I recently learned from friends whose son is currently a high school debater that the high school version of extracurricular debate has now diversified to include an intermediate category of "public forum" debate, in which topics change monthly. (High school debate has long included another branch, called Lincoln-Douglas, that is somewhat closer to parliamentary debate.) Presumably the more frequent change of topic means that the files for each debate are smaller, and therefore there is less of a premium on speaking fast--although I could well be wrong about that. The monthly change of topic might just mean that the students participating simply spend more of their between-debate time doing research.

In any event, I have not paid much attention to the world of competitive debate over the last three decades. Although I am occasionally invited to judge one or another college debate, I invariably decline. Given my day job, it would feel too much like a busman's holiday.

Because I have not kept up with the world of competitive high school or college debate, I base my remarks here on my recollection of how things were in the 1980s, but I don't think that will render my observations dated, because I am using that recollection simply as the inspiration for some thoughts on legal education.

Former debaters have gone on to have successful careers, many of them, not surprisingly, in law, including in legal academia. E.g., the two main contributors to this blog were successful parliamentary debaters, while such noted legal academics as NYU President John Sexton and my colleague Steve Shiffrin were once very successful on-topic debate coaches, and my own mentor, Larry Tribe, was a champion on-topic debater. Because on-topic debate has been the dominant form of high school and collegiate debate in the U.S., I think it's fair to say that within the law professoriate, those who were high school or college debaters were more likely to have been on-topic debaters than off-topic debaters. Nonetheless, legal education in the U.S. looks a lot more like parliamentary debate than like on-topic debate: We allot no time for research of the facts; instead we just dive right into the normative argument.

Consider standard Socratic instruction, when it works as it is supposed to. The professor might begin by asking easy questions that aim to ensure that the students understood what the facts, holding, and reasoning of the case were. Then come the harder questions. What if the plaintiff had not consented? Or suppose that both parties had been partly at fault? Whatever. The point of such questions is first to explore the limits of the rule that the case is taken to establish and second to see whether any sensible rule (or standard) that justifies the result in the case is in fact justifiable overall. I have engaged in this sort of exercise countless times as a teacher, and it is very useful in training students to think analytically.

But the Socratic method as just described has a pretty serious limitation: Often the question of what the "best" rule or principle is will depend on the answer to some empirical question. E.g., Should contributory negligence be a complete defense (the traditional common law rule) or should the rule be one of comparative negligence, whereby the plaintiff's own negligence merely reduces recovery (as in many states now)? Should each side bear its own legal fees (the "American rule" absent a fee-shifting statute) or should the loser pay the winner's legal fees (the "English rule")? The answers to such questions depend in part on the incentive effects of each regime, their respective adiministrative costs, etc. A student who says this sort of thing will earn praise from the professor, but the class does not then embark on a review of the empirical evidence. We are in law school, after all, not fact school.

There is some pushback in the other direction. In my own field of constitutional law, the last couple of decades has witnessed some greater effort by legal academics and political scientists to take account of one another's work. And various scholars have engaged in inter-disciplinary empirical work that bears on law. Such work has long been a side interest of mine (including a current grant-funded project on the efficacy of smoking warnings). And even after the premature death of my colleague Ted Eisenberg, the "grandfather of empirical legal studies," Cornell Law School remains a leader in that field. But even as some of us in the legal academy spend some of our scholarly time investigating empirical questions, legal instruction remains a mostly fact-free zone.

In a follow-up post, I'll discuss the limited demand for facts from policy makers, but here I want to conclude with a clarification about what I'm suggesting with respect to legal education. I do not mean to endorse the on-topic debate model for legal education. For one thing, at least as I encountered it, that model was seriously flawed in its own right. The problem was not just the fast talking, which is mostly self-limiting: Former on-topic debaters who grow up to interact with regular humans learn to slow down so that they can be understood. The deeper problem was the indiscriminate use of authority--so that a quotation of Hayek (or of a contemporary Hayekian) could be used to "rebut" a quotation of Keynes (or a contemporary Keynsian), or vice-versa. According to a well-known story, an enterprising debater once wrote a letter to the editor of Time magazine so that he could later invoke "Time magazine" as an authority for a proposition in a debate. The story may be apocryphal but the lesson is true: all sources of authority are not equal, but the debate format gives the debaters an incentive to invoke unreliable sources as though they had greater weight.

Perhaps that caution points to at least a small reform in the way we teach law school classes. As noted, in my experience, the (kinder gentler version of the) Socratic method is useful for teaching analytical thinking. Evaluating the weight of sources should be part of such thinking.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 01 Aug 2014 12:00
By Lisa McElroy and Katie Rose Guest Pryal, a UNC-Chapel Hill law professor who studies mental health issues and disability.  Read Professor Pryal's regular Chronicle of Higher Education column here.

Ask any new law school graduate to name her biggest fear, and you’ll likely receive a predictable answer. She’s afraid she will fail the bar exam.

The fear of failing the bar is ubiquitous among recent law grads; it’s not limited to the 40% or so of law students who live with psychiatric disabilities like anxiety and depression. For that 40%, we can only guess that the summer-long terror of failing to pass the most important exam of their lives is even worse.

Speaking anecdotally, we know what that terror is like. We both live with psychiatric disabilities. We both took the bar exam. When we took it, though, the exam was as much within our control as it is possible for it to be. Way back then, we hand-wrote our exam answers in bluebooks, using yellow No. 2 pencils that we brought to the exam in clear Ziploc bags.

Back then, no one we knew worried that the exam itself would have SNAFUs. We worried about our own failures, not those of the administrators.

Fast forward to July 2014. This past Tuesday, the company tasked with processing the essay portion of most states’ bar examinations failed epically. Perhaps because the company did not anticipate the number of students who would be uploading files simultaneously (how could it not?), its system locked out thousands of test takers, preventing them from submitting their exam answers.

On some law school blogs and websites, bar candidates were reaching out to each other for support. Others took to Twitter using hashtags like #barmageddon to seek camaraderie (often via dark humor). But some of these posts are heartbreaking to read. Here are just a few.

"All I wanted to do after that stressful day was come home and chill out. Instead I spent an hour more stressed out over the bar than I have been at any time including prep and during the test itself."

"I’m on the verge of a nervous breakdown, literally, and I just want to relax and try to collect myself for tomorrow."

"This is so stressful and I just wanted to review for the MBE tomorrow and relax."

"I need a klonopin."

"This sucks so, so bad. I can’t even put into words the stress."

"Ugh this is so stressful. Examsoft basically freezes every time I try to open it now. It gets stuck on that stupid rainbow pinwheel."

Because these posts were anonymous, it’s impossible to tell whether the applicants involved were merely feeling situational stress or were dealing with mental health crises triggered by Examsoft’s server issue.

The incident made us think more mindfully about the concern we have every year—how the applicants with psychiatric disabilities are coping with the fear of failure.

There are so many hurdles for students with psychiatric disabilities (i.e., mental illness) to jump over in order to even sit down for the bar exam in the first place—the most egregious of which might be the invasive questions that bar examiners ask of examinees in the name of determining “character” and “fitness to practice law.” So these students are already walking into this exam feeling alienated from the entire process because the questionnaire they had to fill out made them feel this way. If they had to ask for any accommodations, that process was likely arduous and invasive as well.

Now, after forking over thousands of dollars and giving months of their lives to studying for just this one multi-day exam that will determine whether they will be able to practice a profession they have been attending school for years to prepare for, the computer system crashed. For some students, this crash is merely stressful. For other students, those who have psychiatric disabilities, walking into days two (and three) of the bar exam were going to be torture. Because of the “fitness” questions, they were already questioning whether the law profession even wanted them. After #barmageddon, they were likely questioning whether they were cut out for it at all.

New law school graduates—if you’re reading this—you are cut out for this. If we could do it, you can do it. You are not alone. And if you are tempted to post on a message board or Twitter where unkind comments might abound, think about posting here, instead. We won’t respond like this:

“Cry me a river. ExamSoft screwed up, but the state bars remedied the situation by extending deadlines. What damages have you suffered? Neurotic anxiety for a few hours? This is why nobody likes law students.”

No, we’ll hear your fear of failure for what it is: real, terrifying, and misunderstood.

Psychiatric disabilities will be misunderstood in law schools (and in the legal profession) until more people speak out and correct misperceptions. The only upside to #barmaggedon? Perhaps it gives many an incentive to start.
Author: "noreply@blogger.com (Lisa McElroy)"
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Date: Thursday, 31 Jul 2014 14:58
-- Posted by Neil H. Buchanan

[Note: This post is a companion piece to my latest Verdict column: Message to Young People: Social Security Will Be There For You, Unless You Let Wall Street Take It Away From You.]

This year's go-round on the Social Security "drop-dead date" carousel was notable for its near invisibility. In previous years, the annual release of the Trustees' report would be breathlessly reported by every media outlet, with commentators decrying the failure of politicians to deal with this supposed crisis in the making.  This year, not so much.

Indeed, I would not have devoted this week's Verdict column to the topic, except that it appears that young people have actually come to believe the anti-Social Security hype.  True, they are not up in arms about it, but they appear to have adopted a desultory "We know we're screwed, but what else is new?" attitude.  It seemed worthwhile to take another crack at trying to help young people see that this is one area in which the news is good, and that they should not become pawns of the privatizers.

I have written quite a bit about this topic over the years, and the only interesting thing about it has been to see how impervious the conventional wisdom has been to the boring reality that Social Security is not "facing a crisis that requires immediate action," nor is it "going to go out of business, leaving future retirees high and dry."  None of that is even remotely true, but there are people who stand to profit (politically and economically) from ending or damaging Social Security, so the campaign to convince people that a crisis exists has continued for years.

As I mentioned above, what was odd about this year's release of the Trustees' report (which, for those of you who missed it, was on Monday of this week), is that the report said pretty much the same thing as always, but the news coverage was minimal.  The Times relegated it to the back pages of the paper, and there was virtually no discussion of it among the chattering class.  Does that mean that the fight is finally over, and that the reality at long last has overcome the forces that have been attacking Social Security for decades?  Unfortunately, that is almost certainly not what is happening.

Perhaps it is too much to expect people to admit out loud that they were wrong all along, and to say that Social Security should be left alone.  Explicit surrender is too much to expect.  Therefore, it could be that the usual suspects have simply slithered onto the next fight, finally telling themselves that this fight cannot be won.  This silence could be meaningful.

The more likely explanation, I think, is that believers of the conventional wisdom momentarily view Social Security as an issue that is not worth talking about, but only so long as Washington is gridlocked.  I am thinking here of the people who view themselves as "responsible," and who think that the Bowles-Simpson commission was a high point in American public life.  (It wasn't.  It really wasn't.)  We are not talking about embarrassments like Gov. Rick Perry, who might occasionally still say that Social Security is a Ponzi scheme (which is in competition for the most ridiculous thing Perry has ever said).  The question is what the self-styled centrists, who viewed the debt ceiling fights as opportunities to attack "out of control entitlements," are doing.

That Times news article from Monday, which reported on the release of the Trustees' report, quotes Robert Reischauer, the former CBO director who is now a Social Security Trustee, saying that "both of these very important programs are fiscally unsustainable over the long run and will require legislative intervention."  Here, "fiscally unsustainable over the long run" means this: If nothing changes, and if the economic forecasts turn out to be true (estimates that are, by they way, hardwired to be pessimistic, notwithstanding the claim that they are middle-of-the-road forecasts), then full benefits will not be paid at some point in the future.  But the call for "legislative intervention" simply means that Congress can, at any time, decide to prevent those cuts from happening.  If it does not, it will have chosen to allow the cuts to occur; but as I point out in my Verdict column (again), even those cuts would hardly be draconian.

Similarly, the Times article includes a quote from Republican Congressman Dave Camp, the current chair of the Ways and Means Committee, who will be retiring in January, blaming (you guessed it) President Obama: "This administration continues to ignore the fast-approaching crisis that Medicare and Social Security face, especially our Social Security disability program. The fact is, without bipartisan action, benefits will be cut.”

What Camp is doing is cherry-picking the most demagogue-friendly fact, which is that there are separate trust funds for different aspects of Social Security, and one of them (the disability insurance fund) will be depleted in a couple of years, unless money is moved around.  Of course, he ignores that the Trustees have already said that it is possible to do exactly that, moving money from the retirement trust funds to the disability trust fund (as has been done in the past), and the whole system would not reach depletion until 2033.  He also ignores the fact that depleting a trust fund does not end the program, and he still claims that the overall Social Security and Medicare programs are heading toward a crisis.  And it is worth remembering that Camp is held up as a moderate, reasonable Republican, not some firebrand.

How would we solve those supposed fast-approaching crises?  The Times quotes the wonderful Nancy Altman as saying that any problems could be solved by progressive tax changes, but of course, even fake moderates like Camp would never allow that to happen.  And with Democrats like Reischauer on board as saying that "legislative intervention" is necessary to make the programs "sustainable," the only consensus position among the people who view themselves as the sensible, realistic center of the spectrum will be to cut benefits.

In short, there is no reason to think that there has been a fundamental reassessment by anyone who has been pushing a political agenda that will lead to a fake compromise to cut Social Security.  When the political moment is right, they will be back at it, on both sides of the political aisle, hacking away at the security of future middle class retirees.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 30 Jul 2014 04:25
by Michael Dorf

As I post these thoughts, there is no ceasefire in place to stop the immediate bloodshed in Gaza and Israel, much less any apparent progress towards resolving the larger conflict. But, as with my most recent post inspired by the latest outbreak of violence, I am going to address a general issue it raises, rather than assess the current situation or the broader conflict. I realize that in treating a very real tragedy as merely the insipiration for an intellectual discourse, I risk coming across as detached or unfeeling, so let me assure readers that I take very seriously both Israel's security concerns and the devastation in Gaza. As with my last post on the current Israel/Hamas conflict, I want to discourage comments on topics other than the one I address here, and to announce in advance that I won't respond to any such off-topic comments.

With that warning/disclaimer out of the way, I come to the question that concerns me: Can we learn anything about the human shields question in international humanitarian law (IHL) by looking at domestic criminal law?

The issue is inspired by a question that I bracketed in my last post on civilian casualties: If Force A uses human shields, does that affect the determination of whether Force B's use of force against A is proportionate (and thus legal)? Israel says that Hamas deliberately embeds itself in the civilian population, storing and launching rockets from, and digging tunnels under schools, hospitals, and mosques, as well as preventing some Gaza civilians from heeding Israeli warnings to evacuate targeted buildings--and that therefore, the proportion of civilian casualties from Israel's attacks on Hamas should be permissible even if that proportion is higher than the threshold that would lead to the conclusion that Israel would be violating the proportionality norm absent the deliberate use of human shields.

One could contest various premises here. For one thing, Hamas is not exactly the government of a country, and so the application of IHL to it is open to question. Nor is it entirely clear that IHL, as opposed to the stricter norms applicable to occupying forces, applies to Israel with respect to Gaza. Although Israel dismantled all of its Gaza settlements in 2005, Gaza remains subject to considerable Israeli (and also Egyptian) control. In addition, Hamas and others argue that the population density of Gaza, rather than its deliberate policies, are mostly responsible for the high civilian casualty rates.

These and other issues would need to be addressed in any assessment of war crimes liability for Hamas and/or Israel, but I'm going to put them aside here to focus on a general issue that arises in many asymmetrical conflicts: Does the measure of proportionality in determining the lawfulness of attacks that foreseeably lead to collateral civilian casualties change when the enemy uses civilians as human shields? (There is some disagreement about what exactly it means for a force to use human shields, but I use the term loosely to refer to any actions deliberately undertaken to ensure that attacks by the enemy on military targets will likely result in substantial civilian casualties.)

Since writing my last post, I did a bit of research and came to the conclusion that IHL is not fully determinate on the question, but is probably best read as not changing its definition of proportionality based on the use of human shields by the enemy. The basic idea appears to be that war crimes by one side don't justify war crimes by the other.

That logic has been questioned. For example, a Student Note in the 2012 Vanderbilt Journal of Transnational Law argues that IHL should give the attacking side the right to disregard human shields entirely, on the ground that this approach, if followed consistently, would reduce the incentive for the enemy to use human shields in the first place. For what it's worth, I think that's probably wrong even on its own terms. Even if foreseeably killing unlimited numbers of human shields were lawful under IHL, many countries would refrain from doing so out of moral and/or public relations considersations, and so there would remain an incentive for the other side in a conflict to use human shields.

A less extreme reform proposal comes from Amnon Rubinstein and Yaniv Roznai in the 2011 Stanford Law and Policy Review. They argue first that IHL ought to be clearer that forces deploying human shields commit grievous war crimes. Next, they urge distinguishing between voluntary human shields and involuntary ones; people who volunteer to serve as human shields should not count as civilians for purposes of calculating proportionality (as civilians participating in hostilities ordinarily do not so count during the period of their participation); but given the difficulty of determining whether particular individuals are voluntary or involuntary shields, uncertainty should be resolved with a presumption in favor of treating human shields as involuntary, and thus protected. Finally, Rubinstein and Roznai would retain the proportionality requirement as against an enemy employing involuntary human shields, but they would relax it somewhat. Thus (and this is my account of their proposal), if for some military operation, the proportionality limit on the number and severity of civilian casualties would be X in the absence of human shields, it would be X+Y if the enemy is using involuntary human shields.

I think there is much to be said for the Rubinstein/Roznai proposal but also much to be said for the two-wrongs-don't-make-a-right logic of the current IHL norm (as I perceive it). I do not start out with a strong view about which approach is to be preferred in IHL, but perhaps we can get some guidance from the parallel question in domestic criminal law.

Hostage-taking is a close cousin of the use of human shields in domestic criminal law, but its usual logic is importantly different. If bank robbers hold customers and bank employees hostage in order to facilitate their own escape, they are using the hostages as shields, but the robbers usually aren't threatening violence to anyone else, so it is difficult to imagine a scenario in which one might think that intentionally killing the bank robbers while foreseeably but regrettably killing the hostages makes any sense.

It is difficult to come up with a realistic scenario in domestic crime that closely parallels the IHL case. (For an unrealistic scenario, I recommend the boat scene from the Batman film The Dark Knight). But realistic or not, here is what I have in mind: Bad Guy, with the intent to kill Good Guy, has a gun pointed at Good Guy, who also has a gun, but Bad Guy is holding Innocent Shield in front of him, so that the only way that Good Guy can shoot Bad Guy before Bad Guy shoots Good Guy (who cannot safely retreat) is by shooting in a way that will foreseeably (albeit regrettably) harm or kill not just Bad Guy but also Innocent Shield. Is Good Guy permitted to shoot?

Notice that in my hypothetical example, Good Guy wants to use deadly force to protect himself. I am not asking whether a police officer would be justified in shooting. I think the answer to that question would generally be no, even if Good Guy would be permitted to shoot: A police officer would have no reason to prefer the life of Good Guy to Innocent Shield--although a police officer might have reason to think that there's at least a chance that he could hit Bad Guy without harming Innocent Shield, and so conclude that there will be a lower chance of the loss of innocent life if he shoots than if he doesn't. But let's put that issue aside. Although one could analogize the use of force by countries in war to the use of force by police, more commonly national self-defense is analogized to individual self-defense.

So, can Good Guy use deadly force against Bad Guy, knowing that there is a substantial probability that in doing so he will also kill Innocent Shield? Put differently, suppose Good Guy does use deadly force in this way, resulting in the death of both Bad Guy and Innocent Shield. Will he face criminal liability?

Let's look at the answer under the New York Penal Law (which pretty closely follows the Model Penal Code; the answer may differ in other states, but not that much, I suspect). Prima facie, Good Guy has committed two second-degree murders because he acted intentionally with respect to Bad Guy and at least extremely recklessly with respect to Innocent Shield. (Alternatively, Good Guy might be on the hook for Innocent Shield under a "transferred intent" theory.) Under NY Penal Code Sec. 35.15, Good Guy can make out a successful defense of justification (i.e., self-defense) with respect to Bad Guy, but not with respect to Innocent Victim, because self-defense only applies against the attacker himself. Is there some other defense available?

Duress is arguably a possibility. In the standard duress scenario, X uses duress to induce Y to commit an offense against Z. (E.g., "mug that old lady or I'll break your knees"), but we can imagine that the threat that Bad Guy poses to Good Guy would be the duress that leads Good Guy to kill Innocent Shield. (Joshua Dressler proposes that Model Penal Code duress would be an appropriate defense in the related case where a battered woman kills her batterer while he is sleeping.) Maybe this fits the literal language of the duress defense: "the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which  force  or  threatened force  a  person of reasonable firmness in his situation would have been unable to resist." The answer would depend on what "coerced to do so" means. Certainly Bad Guy is not trying to get Good Guy to kill Innocent Shield; Bad Guy is using Innocent Shield to prevent Good Guy from shooting at Bad Guy; so a duress defense only works if we imagine that it includes unintended coercion.

Another possibility would be the defense of necessity. NY statutory law does not expressly recognize the defense of necessity, but it is encompassed within the general provision recognizing justification defenses. However, that provision by its terms excludes those defenses relating to the use of physical force, so, in New York, at least, necessity is unavailable. This reasoning also suggests that a duress defense would be unavailable. The legislature specifically considered the use of force in self-defense and concluded in Sec. 35.15 that it should only be permitted against the attacker, not against innocent third parties. Given the canon that the specific supersedes the general, it would be incongruous to say that nonetheless Good Guy can make out a defense of duress.

Thus, while recognizing that I'm not an expert in criminal law, I conclude that NY law--and the law of other states to the extent that it is similar--would not provide for a valid defense for Good Guy's foreseeable killing of Innocent Shield in my hypothetical example. Is that result normatively justified?

I think the answer is probably yes, for two reasons. First, on utilitarian grounds, it's worse to kill two people than one (even if one of the two is a criminal).

Second (and more importantly for me), on deontological grounds, it could be thought impermissible to deliberately act (as opposed to failing to act) in a way that causes severe harm to another, even if doing so avoids an equally severe harm. That is why many deontologists think it impermissible to switch the trolley from one track to another, even if they thereby avert a greater harm. Whether one agrees with that conclusion, even as a deontologist, depends on how seriously one takes the doctrine of double effect. Here, the killing of Innocent Shield is not the intended consequence of the act, just the regrettable side effect. Good Guy, in this view, is not using Innocent Shield in the way that the "fat man" is used in a variant on the trolley problem that nearly all deontologists find objectionable. Therefore, under the double effect doctrine, Good Guy acts permissibly if the incidental harm to Innocent Shield is proportionate to the harm averted. Double effect, in moral theory, as in IHL, requires both that the harm to innocents be collateral and proportionate. If you find this brief discussion of "trolleyology" too brief to get a handle on it, you might want to check out my earlier post on the subject.

What's notable here is that New York's criminal law does not appear to permit the foreseeable but unintended killing of innocents even when that killing is proportional. So if instead of threatening one person, Bad Guy were threatening two, or five, or a hundred, so long as the only way for one of those two, or five, or a hundred to disable Bad Guy is to shoot through Innocent Shield, as I read the criminal law, that would still be impermissible, even though it would be permissible for some deontologists under the double effect doctrine and permissible for utilitarians on the ground that it would save more lives. Yet domestic criminal law appears to categorically forbid the collateral killing of human shields. With respect to collateral harm to innocents, domestic criminal law is much more demanding of those who would use force in personal self-defense than IHL is of nations using force in war.

To be sure, in the domestic case Good Guy (or the two, five, or a hundred good guys in the variants) could still go ahead and shoot, hoping that a prosecutor will exercise her discretion not to bring charges (or to reduce the charges), that a grand jury will refuse to indict, or that a jury will nullify. But then, there are also mechanisms by which IHL is under-enforced. For many people who have committed war crimes, the de facto punishment amounts to no more than a foreign travel ban, because they remain powerful in their home countries.

If one thinks that the domestic law treatment of human shields is appropriate, then one will be tempted to say that the reform proposals to loosen the proportionality requirement in the face of human shields should be rejected. IHL already licenses more force against innocents than domestic criminal law, after all. But even if one thinks that the domestic law treatment of human shields (as I have described it) is too tough on the person placed in the difficult situation of needing to (regrettably and collaterally) take an innocent life to save his own, then at most one will end up concluding that the existing IHL norm allowing proportionate collateral harm to innocents is appropriate, but one will need a further argument for loosening that norm based on the enemy's use of involuntary human shields. Such a further argument would have to explain how and why nations should be given greater leeway to inflict collateral harm against human shields than individuals should be given. I suppose such an argument could be made, but I haven't seen it.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 29 Jul 2014 14:58
-- Posted by Neil H. Buchanan

Earlier this year, I wrote a series of Dorf on Law posts in which I commented on a testy exchange between "orthodox left" economists and "heterodox left" economists.  (The last of my posts, which contains links to the previous posts in the series, can be found here.)  The orthodox team's most prominent member is Paul Krugman, while the heterodox left is ably represented by James K. Galbraith and Tom Palley.  Lately, there has been another go-round between Krugman and Palley, which sheds some further light on the orthodox/heterodox divide, and which provides additional evidence in support of my analysis back in May.  Specifically, Krugman is showing once again that he prefers "the jerks to the right of him," as I once described it, and he continues to dismiss and marginalize his potential allies on the left.

To review the basics, both the orthodox left and the heterodox left are in broad agreement on what would constitute a good policy response to the ongoing economic crisis: significant increases in deficit spending, a more expansionary monetary policy, aggressive regulation of the financial sector.  They further generally agree on issues concerning income and wealth inequality, favoring increases in the minimum wage, redistributive taxation, and so on.  Indeed, Professor Hockett's Dorf on Law post from May 3 points out that, in some ways, it is difficult to figure out the differences, which is why his post is titled, "When is it Orthodox, and When is it Heterodox?"  That post demonstrates, moreover, that the similarities extend to matters of theory, and not just to the bottom line of policy.

So, if the two sides agree on key theoretical points, and they agree on real-world policies, what is left to divide them?  Plenty, as my series of posts explained.  Perhaps the most important among their many differences is that the heterodox reject the idea that "capital and labor are paid as much as they deserve, based on their productivity," whereas the orthodox either accept that idea or only reject it in a haphazard or ad hoc fashion.  This is an enormously important difference, because it means that the heterodox are actually equipped to explain important economic phenomena without finding themselves relying on the assumptions and methods favored by conservative economists, whereas Krugman et al. are left inventing and defending on-the-spot arguments to deviate from the conservative baseline.  That those arguments are almost always better than the arguments from conservative economists is important, but it does not change the deeper fact that orthodox left economists clearly feel more comfortable playing on the conservatives' turf, and that the orthodox left displays a palpable antipathy to the heterodox left.

The latest dispute between Palley and Krugman is, on the surface, about theories of price inflation (the Phillips Curve, for those of you who remember your Econ 102 classes).  What it is really about, however, is respect.  Krugman has been writing recently about how his group of orthodox left economists have been using an important insight from 1971 by the late, great James Tobin to explain inflation.  Palley has pointed out that heterodox lefties (and Palley in particular) have been all over this for decades, whereas the Krugman people are acting as if the heterodox literature does not exist, with the orthodox people once again supposedly proving that they are intellectually adept and willing to innovate.

The latest volleys from Palley and Krugman can be found here and here, respectively.  (These are two very short blog posts from the two combatants, written in non-technical terms, so non-economist readers should feel comfortable reading both posts.)  Palley explains in clear terms what he and his colleagues have written on this subject, and then chastises Krugman for ignoring their work.  Krugman's response is remarkable, and not in a good way.  He begins by saying "I plead innocent" to the charge of giving Palley et al. "short shrift," but then Krugman basically tries to explain why it is really OK that he is guilty.

Essentially, Krugman's defense boils down to something like this: "Well, it's impossible to read everything, so any sensible person ends up deciding who is worth reading, and who is not."  This is obviously true, but it does not at all explain why the orthodox lefties spend so much time reading and listening to their conservative colleagues, who really have a horrible track record, yet find it so easy to act as if the heterodox do not even exist.  Krugman admits that "modern academic economics is very much an interlocking set of old-boy networks," but he never even tries to explain why the heterodox (most of whom attended top Ph.D. programs, but who did not sign onto the orthodox bottom line) are non-networked.

To his credit, Krugman says that "one ought to lean against" this insider/outsider tendency.  But the remarkable aspect of Krugman's post is that he essentially tells Palley and the other heterodox economists to be more polite, admonishing them and suggesting that "if you want the mainstream guys to listen to you, you probably shouldn’t accuse them of being denser and more rigid than they really are.  So how about some more open-mindedness all around?"

I recall a time when I was in college, and there were some students protesting peacefully on campus about the college's investments in South Africa's apartheid regime.  One of my classmates, who came from very old money, complained that "they're just so ill-mannered!"  Similarly, European elites over the last few centuries would often explain their anti-Semitic views by complaining that Jews were unseemly in their focus on money -- as if the elites themselves had not passed laws restricting what kinds of trades Jewish citizens were permitted to enter.  In both of these examples, you have comfortable elites not only enjoying the fruits of excluding outsiders, but in many cases actively excluding outsiders, and then saying that the real problem is that those outsiders are just so shrill.

As I noted in my series of posts two months ago, the heterodox have been marginalized to the extreme by orthodox economists.  It is not that there are heterodox left, orthodox left, and various brands of conservative economists in each top department, with the orthodox left choosing to have lunch with the conservatives rather than the heterodox.  The heterodox are missing from the top departments entirely, and very much because the orthodox left participated in that purge.  If anyone other than Robert Solow among the orthodox left has done anything to try to fight that purge of heterodox economists, I am not aware of it.

Notably, Palley's current job is at the AFL-CIO, and Galbraith's is in a public policy school.  No elite economics departments find their type of work -- even though it is as math-techie as anything in the mainstream, and even though Krugman himself admits that it is reaching conclusions on important questions at which he and his colleagues arrived much later -- worth supporting.  When hiring decisions are made, the right unites with the orthodox left to say, "Well, that's outside the pale," and then they return to running the top journals, drawing the best salaries from the best universities, and fielding calls from presidents and prime ministers.  That there are any remaining active heterodox economists at all is actually a bit of a miracle, attributable both to intellectual honesty and academic idealism.

For Krugman to say (after admitting, somewhat ironically, that it is important to "Listen to the Gentiles“) that the heterodox guys will get further by striking a less critical pose thus strikes me as completely tone deaf, at best.  He acts as if the heterodox are a bunch of unwashed loud-mouths who are being impertinent, failing to understand that one simply does not do such things here.  Readers can judge for themselves, but I find Palley's criticisms of Krugman to be quite within the range of polite society.  But even if that were not true, it is a bit galling for Krugman to try to reprimand the outsiders for not acting like insiders.

Krugman has often argued, in response to those on the right who claim that he is shrill and nasty, that the stakes in policy debates are too high to worry about rules of civility.  It is depressing indeed to see him show such a thin skin when it comes to people with whom he generally agrees, especially when those people have ample reason to be so much more hostile to him than they actually are.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 28 Jul 2014 11:00
by Michael Dorf

My latest Verdict column discusses last week's dueling D.C. Circuit and 4th Circuit opinions respectively invalidating and affirming the authority of the IRS to extend refundable tax credits to people purchasing health insurance on federally-established, as opposed to state-established, exchanges. I note that the DC Circuit relies on textualist arguments, which leads me to explain what textualism is and its virtues, such as they are. I note that moderate textualism has been largely accepted but argue that the DC Circuit applies an extreme version of textualism. I contend in the column that what makes the DC Circuit version of textualism extreme is, among other things, the fact that it arrogates to the court the power to decide when language is sufficiently clear to foreclose the IRS interpretation of the statute.

Here I want to suggest that my column is perhaps too generous to Justice Scalia in accusing the DC Circuit of implementing a more extreme version of textualism than the version he has championed over the years. I won't go through his statutory construction opinions one by one in order to try to show that he too is really a textualist extremist. Instead, I want to focus on one particular oddity of Justice Scalia's constitutional jurisprudence. It is, I think, inadvertently revealing of how he thinks about text--and perhaps also says something more generally about textualism (in both statutory and constitutional cases).

Not long ago, I was very honored to accept an invitation to join the editorial team of one of the leading constitutional law casebooks, currently edited by Jesse Choper, Dick Fallon, Yale Kamisar, and Steve Shiffrin. For the next version (available for academic year 2015-16), Fred Schauer will take over Professor Shiffrin's parts of the book and I'll take over Professor Kamisar's, which include the materials on abortion. I have thus been going through various cases and I came across a tidbit to which I had not previously paid sufficiently close attention. It's a remarkable footnote that appears in Justice Scalia's dissent in Planned Parenthood v. Casey.

The majority opinion (which was a majority on this point, although a plurality in some other respects) explained why the Court thought that the Fourteenth Amendment's Due Process Clause could be understood to protect a right to abortion notwithstanding the argument that in 1868 (and for years later), there was no well-established tradition recognizing a right to abortion. The majority said that such a tradition is not a necessary condition for recognition of a constitutional right. If it were, the majority said, then decisions like Loving v. Virginia--which recognized a right to interracial marriage even though there was no traditional protection for interracial marriage--would be wrong. Justice Scalia responded (in his footnote 1) as follows:
The Court's suggestion . . . that adherence to tradition would require us to uphold laws against interracial marriage is entirely wrong. Any tradition in that case was contradicted by a text--an Equal Protection Clause that explicitly establishes racial equality as a constitutional value.
Whatever one thinks about the broader disagreement over abortion rights, that is a mind-blowing whopper of an error. Justice Scalia said in that footnote--as I have heard him say on other occasions--that the "text" of the Equal Protection Clause "explicitly establishes racial equality as a constitutional value."

Here is the text of Section 1 of the Fourteenth Amendment, including its Equal Protection Clause:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
One can say that the original purpose or intention or expectation of the people who drafted and ratified the Equal Protection Clause was that it would establish racial equality--although even then one would need a fairly elaborate account of why one should look to their general purposes, intentions, or expectations regarding "racial equality" rather than their largely contrary specific purposes, intentions, or expectations regarding interracial marriage in particular. But at least we can make sense of the so-called "semantic originalist" or "new originalist" argument that the general understanding prevails as against the concrete but unenacted intentions or expecations.

By contrast, the claim that the text of the Equal Protection Clause explicitly establishes racial equality is, as Justice Scalia himself would say, entirely wrong. The Equal Protection Clause says nothing whatsoever explicitly about race.

So why did Justice Scalia think and say otherwise--and not just in a casual conversation but in a published dissent in the U.S. Reports that was presumably vetted by law clerks with the capacity to read the Constitution and joined by three other Supreme Court Justices with that same capacity?

I honestly don't know the answer to that question but I'd bet that if his blatant error were pointed out to him, Justice Scalia would at first deny the obvious. If faced with a persistent objector, then perhaps Justice Scalia would grudgingly admit that the text does not explicitly say anything about race but that given the overall historical context, it should be construed to imply a principle of racial equality. And then, in a few days he would forget all about the conversation and go back to holding the false belief that the text of the Equal Protection Clause explicitly establishes racial equality.

If that is right--and the psychological literature on motivated cognition says that something like this probably would happen--then we have a pretty damning criticism of textualism more broadly. After all, here we have a Supreme Court Justice writing for himself and three others in a momentous case but making an obvious mistake about the content of an extremely well-known constitutional provision--finding clear text where there is no text. That suggests that the outcomes judges are inclined to reach on normative grounds routinely influence whether they find that the authoritative text they are construing is clear.

I am not saying that it's impossible to make a judgment about whether a text is clear without resort to normative considerations. But I do think that where the stakes are ideological and/or high--as in Halbig and Casey--a judge's normative druthers are likely to play a substantial role in whether he finds the controlling text to be clear.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 25 Jul 2014 11:30
by Michael Dorf

Next week, I'll once again be speaking at the annual Practicing Law Institute Supreme Court Review session (in-person in NYC, group-cast in Atlanta and Cleveland, and also available via webcast). I'll be participating in all of the panels but I have primary responsibility for presenting Bond v. United States (about which I wrote a column and a blog post), Schuette v. BAMN (about which I wrote a column and a blog post), ABC v. Aereo (about which I wrote a post-argument blog post and another post-opinion blog post), and Northwest v. Ginsberg My presentations on these cases will be based in substantial part on my earlier writing but because I haven't yet written anything about Northwest, I thought I'd preview my remarks on that case here. I apologize for reporting on a case almost four months after it was handed down and I realize that I may end up making points that others have already made elsewhere. But the case struck me as sufficiently interesting to warrant a few words on DoL.

The dispute is straightforward enough. Ginsberg was a "Platinum Elite" member of Northwest's frequent flyer program (think George Clooney in Up in the Air) but Northwest terminated his miles for "abuse" under a contractual provision under which "abuse of the . . . program (including . . . improper conduct as determined by [Northwest] in its sole judgment . . . may result in cancellation of the member's account." Northwest provided evidence that Ginsberg was a first-class whiner but Ginsberg claimed that he was actually terminated as part of a cost-cutting program by Northwest. Ginsberg brought a number of claims against Northwest but by the time the case reached the SCOTUS, only one was at issue: a claim under Minnesota law (conceded by all parties to apply) for breach of the covenant of good faith and fair dealing. The question presented was whether the federal Airline Deregulation Act (ADA) pre-empted that claim.

The Court, in a unanimous opinion by Justice Alito, said that the good-faith-and-fair-dealing claim was pre-empted. The ADA by its terms says that a state "may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service . . . ." The Court first rejected the argument that a common law rule is not a "law, regulation, or other provision." It next said that because the Minnesota covenant of good faith and fair dealing is an "other provision" that affects both prices and services, it is pre-empted.

To reach that result, the Court had to distinguish its 1995 ruling in American Airlines v. Wolens. In that case, the Court held that the ADA does not pre-empt contract claims against an airline regarding frequent-flyer miles because a contractual obligation is not a regulation or provision of state law; rather, it is a voluntarily undertaken obligation. By contrast, the Court said in Northwest, at least in Minnesota, the covenant of good faith and fair dealing is imposed by law--because it cannot be waived by the parties. In addition, the Court said, Minnesota's covenant of good faith and fair dealing is based on "policy reasons," and "when the application of the implied covenant depends on state policy, a breach of implied covenant claim cannot be viewed as simply an attempt to vindicate the parties' implicit understanding of the contract."

With due respect, let me suggest that the Court's reasoning is 19th century formalism of the sort that legal realism undermined over a century ago. All contracts are formed against the backdrop of law, including some waivable rules and some non-waivable rules. And a state law rule based on a state policy--even if non-waivable--can readily be understood as an effort to facilitate the best expression of the parties' voluntary undertakings or to establish the framework within which those voluntary undertakings occur.

Let's consider an example the Court itself gives. After holding that the good faith and fair dealing claim is pre-empted, the Court explains that its "holding does not leave participants in frequent flyer programs without protection," citing three such protections: 1) the free market, in which, as every traveler knows, competition among airlines ensures the highest quality of service (sarcasm added); 2) the possibility of Dep't of Transportation regulation and investigation; and 3) a breach of contract claim. But Ginsberg did not appeal the lower courts' rejection of his breach of contract claim so he relinquished any chance to push that.

Suppose Ginsberg had not relinquished his contract claim. If not, the Court indicates that he might have won because the contract itself might best be understood as "not actually giv[ing] Northwest unfettered discretion to terminate his membership in the program." Well, why not? I can think of three possibilities, all of which undermine the Court's core holding in the case.

First, we could imagine that under Minnesota law, an adhesion contract is construed against the party that wrote it, here Northwest. But if so, that rule is itself a "policy" which may not actually reflect the parties' intentions--and the Court gives no indication that it has inquired into whether parties can waive the rule of construction regarding adhesion contracts.

Second, perhaps the Minnesota courts would construe the contract as limiting the discretion of Northwest because, if Northwest has complete discretion to call anything abuse and cancel a contract, then Northwest hasn't actually promised anything; if not, then there is no consideration and thus no contract. But now we have the same problem. The doctrine of consideration is itself a policy that comes from the state, rather than a purely voluntary undertaking of the parties. What's more, it's non-waivable. If X and Y enter into what they call a "contract" whereby X promises to do something for Y but Y doesn't promise to do anything for X, the "contract" is unenforceable, even if it specifies that "this contract shall be enforceable notwithstanding the absence of consideration by Y."

Third, we might imagine that the Minnesota courts would construe the term "sole judgment" as meaning something like "sole judgment, exercised in good faith" on the theory that this is what any reasonable party would understand it to mean. But if so, that is literally indistinguishable from the duty of good faith and fair dealing.

Thus, the only way to make sense of the Court's distinction between contracts claims (not pre-empted because voluntary) and good faith/fair dealing claims (pre-empted because state-imposed) is that the Court believes that certain classical features of contract law (such as the requirement of consideration) are not really imposed by the state at all but simply part of the furniture of the universe, discovered (not made) by judges who find them in what O.W. Holmes Jr. derisively (but aptly) called "a brooding omnipresence in the sky."

To sum up: The unanimous opinion in Northwest rests on the premise that state court enforcement of contracts means merely giving effect to the voluntary undertakings of the parties, independent of any "policy" judgments. That view of contract law would have been widely recognized as laughably formalistic even in 1914. In 2014 it's astounding.  Langdellian formalism lives!
Author: "noreply@blogger.com (Michael C. Dorf)"
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