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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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Date: Thursday, 24 Jul 2014 15:00
-- Posted by Neil H. Buchanan

On July 24, 2008, I posted "Meat, Dairy, Psychology, Law, Economics," here on Dorf on Law, in which I described how I had decided to become an ethical vegan, after several years of having been a vegetarian.  Every year since then, on or near the 24th of July, I have posted various thoughts that have been inspired by the anniversary of having made the decision to become a vegan.  Those posts are available here: 2009, 2010, 2011, 2012, and 2013 (part I and part II).  Very occasionally, I will also write a vegan-related post at some other time of year.

In these posts, I tend not to adopt the academic style of my other writing, which would in this case involve discussing the deep moral questions raised by veganism.  I have done so, in part, because my co-bloggers cover that territory so very, very well.  For example, any readers who did not happen to read Professor Colb's post yesterday, in which she capped off our Hobby Lobby post mortem series, should do so immediately.  There, Professor Colb discusses the moral implications of being complicit in someone else's decision, comparing the moral claim asserted by the plaintiffs in Hobby Lobby -- that they will have participated in an abortion if they provide the health care coverage that allows one of their employees to buy a morning-after pill that might prevent a fertilized egg from implanting in the employee's uterine wall -- to the question of whether a vegan "participates" in animal cruelty by giving money to a non-vegan who might buy cruelty-infused foods.

Professor Colb's blog post is a tour de force of nuanced inquiry into subtle and important questions.  That it ends by further strengthening the points that Professor Dorf and I have been making about the heavy (and perhaps ultimately unbearable) pressure that Hobby Lobby will put on the "sincerity" inquiry in future claims of religious burdens, is even better.  Add in Professor Colb's book Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, as well as a new book addressing questions regarding abortion and animal rights, which Professors Colb and Dorf have recently written (to be published, most likely, next year), and it is fair to say that the Dorf on Law team has (at the very least) the academic/philosophical side of veganism completely covered.

With no need to add to that academic side of the argument, I have typically used my "veganniversary" posts to discuss questions about veganism from a more personal perspective.  My experience has been that even the most morally thoughtful non-vegans find (as I did) that there is a strange disconnect between the mental process of finally figuring out that the moral case for veganism is compelling and the ability to make the personal decision to become a vegan.  I have had both students and colleagues say things like this: "I completely respect anyone who can become a vegan.  I wish I could, because I know that I shouldn't do what I'm doing.  But I just can't take the leap."  My approach, therefore, has been to write posts addressing the questions of what it means to live life as a vegan, in terms of how it affects one's daily choices, interactions with non-vegan loved ones (as well as strangers), and so on.

This year, the "lived experience" question that has begun to fascinate me is how non-vegans conceive of the different diets involved in typical non-vegan eating versus vegan eating.  In particular, I have come to realize that there is really a two-part claim that goes into rejecting veganism -- coming both from those who, like my colleagues and students noted above, "get it" on the moral questions, as well as from the many more people who think that "man has dominion over all animals," incorrectly thinking that mindlessly reciting such a phrase (as Stephen Colbert's nit-witted conservative alter ego does) somehow excuses animal cruelty.

The two parts boil down to "defending the familiar" and "rejecting the unfamiliar."  As I will explain, I find both parts unconvincing, but I find the latter claim especially bizarre.  By "defending the familiar," I am referring to people's statements that they simply enjoy the cruelty-based diet that they have come to regard as normal.  For example, my last gasp was, "I just couldn't live without pizza."  People similarly object that virtually every family gathering for holidays involves dead and/or tortured animals (Thanksgiving turkey and giblets, for one disgusting example).  The familiar is familiar, and thinking about never eating those favorite dishes again -- no matter how fully one has accepted the moral logic of veganism -- can be daunting.

My reaction to such claims has always been that, yes, one will no longer eat those familiar things, but that what made those things seem delicious is generally not the animal-based part of the meal.  How could that be?  Consider what is possibly the easiest case: eating hot dogs while watching a baseball game.  Even the most insistent meat-eaters joke about hot dogs not really having any meat in them, or only having animal parts that people consider disgusting.  (Homer Simpson once commented on the "pigs' snouts and chickens' rectums" that go into his hot dogs.)  When any "tube steak" is actually tasty, it is not because of the meat, but because of the various spices that go into brats, italian sausages, and so on.  This is easily demonstrated by tasting any of the vegan alternatives to these standard items.

In response to "But I like my familiar stuff," in other words, we can note that a surprisingly large number of people's favorites taste good because they are "non-animal item delivery devices."  Even those that arguably are not, such as steaks or sushi, are still generally treated with heavy dousings of salt and other spices.  It is true that some things might never be quite the same (although advances in vegan foods might soon change that), but if one is really thinking about rejecting a moral choice because it is "just too hard," then it is at least important to know that it is a lot less difficult than one might imagine.

This past year, however, I have become more interested in the "rejecting the unfamiliar" half of the non-vegans' lament.  Last Fall, writing a Dorf on Law post on a different subject, I noted that the ESPN sports talk show "Mike & Mike In the Morning" had bizarrely gone on an anti-vegan rampage, with the second Mike (Golic) ranting and raving about how terrible vegan food is.  The first Mike (Greenberg) egged him on (pun intended), threatening to force Golic (via a "gentleman's bet") to eat nothing but vegan food for a full week.  Greenberg then spent time on the show, over several days, playing straight man to Golic's ranting, at one point reading the ingredients to a vegan dish, allowing Golic to make sarcastic comments after each item.  The level of humor was so ridiculously low that when Greenberg named the first item, "water," Golic bellowed, "YUMMMM!!" and rolled his eyes.  I changed the channel and have never turned back.

OK, so it is easy to make fun of sports talk shows and the intellectual Lilliputians who populate them.  And it is not worth thinking for more than a second about what an item-by-item list of non-vegan ingredients would entail.  What I found fascinating, however, was that it was not enough merely for Golic to say, "But I like what I usually eat," but that it was also essential to say, "And what you freaks eat tastes TERRIBLE."

This, I think, more clearly than anything else exposes the unthinking, clenched-fist emotion of the anti-vegan reaction.  This is an assertion as fact of something that is not only false, but about which the person has no knowledge.  "Vegan food tastes terrible" -- or is not filling, or is lacking in nutrients, or any other demonstrably false assertion -- is an essential part of the rationalizing that allows some people to sleep at night.

Of course, people like Golic will never come around.  For those who might, however, the "rejecting the unfamiliar" half of the discussion is even easier to deal with than the "defending the familiar" half.  "You'll never eat another steak, but you'll probably not miss it as much as you think you will, and it's worth it in any case," is a harder sell than "What you will eat is great."  (That is not to say that it is impossible to produce tasteless vegan foods.  But honestly, the non-vegan foods that people eat are often pretty awful.  Arby's, anyone?)

If one wants to eat delicious, filling, and nutritious foods, one can do so as a vegan.  One can even be a "junk food vegan," but speaking from personal experience, I do not recommend it.  The point, however, is that half of the "can't make the leap" visceral rejection of veganism is based on nothing more than fear of the unknown.  The more common it becomes for people to learn that vegan food tastes good, the less resistance people might have to making that leap.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 23 Jul 2014 13:00
by Sherry F. Colb

In my Verdict column for this week, I discuss and analyze an underdeveloped dimension of the Supreme Court's ruling in Burwell v. Hobby Lobby.  The Court held in Hobby Lobby that the Religious Freedom Restoration Act ("RFRA") protects closely held corporations with religious objections to health insurance coverage requirements under regulations passed pursuant to the Patient Protection and Affordable Care Act ("ACA").  The requirements at issue in Hobby Lobby require employers that provide health insurance coverage to their employees to include within that package coverage for two kinds of intra-uterine device and two types of morning-after pill that the corporations consider religiously objectionable abortifacients.  

The Supreme Court accepts the respondents' claim that they believe that life begins at conception.  This claim, coupled with an acknowledgment from the U.S. Department of Health and Human Services ("HHS") that the challenged methods of contraception sometimes operate after fertilization has occurred, lead the Court to conclude that these contraception methods can operate as abortifacients.  

In my column, I suggest that whether a method of contraception is or is not an abortifacient is in part a matter of semantics (revolving around whether one defines "abortion" to presuppose embryonic implantation in the uterus), rather than being a purely factual or moral question, and in part a matter of whether refusing to admit an embryo into one's uterus is truly tantamount to killing the embryo, given the well-accepted distinction between "killing" and "letting die."  I argue that even if one believes that life begins at conception and that killing an embryo pre-implantation is murder, it does not necessarily follow that taking a drug that makes the uterus inhospitable to embryonic implantation qualifies as murder.

In this post, I want to return to a moral question that the Supreme Court does address in its analysis and apply it to a distinct issue that arose in a conversation with my daughter.  The moral question is whether paying for insurance coverage for a contraception method that one considers an abortifacient implicates the payor in the killing of zygotes or embryos that occurs when one's employee uses the coverage to purchase and utilize the particular contraceptive. The Supreme Court's view is that if a litigant asserts a sincere religious belief that paying for such coverage implicates the payor in the religiously impermissible killing, then the courts must -- under RFRA -- accept that the payor is indeed so implicated.  In response to this conclusion, some have argued that if the payor is implicated in this case, then it ought to follow logically that people who object to a government spending program  on religious grounds (such as spending for drone strikes) also have the right under RFRA to withhold a portion of her income taxes that will be used to finance the objectionable program.  The Court replied to this argument that taxes are different (and could not, as a practical matter, be subject to such exemptions), although it is not obvious to me and others that this distinction between health insurance coverage and taxes has any substance.

This set of arguments came to mind when my daughter asked me a question.  She told me that she had given money to a homeless person earlier in the day.  After doing so, however, she began wondering whether he might use that money to purchase an animal-based food, such as a salad made of chicken's eggs or a cheese made of slaughtered baby calves' mothers' milk.  If he did that, she asked, would she then be responsible for the violence consequently inflicted on animals?  I immediately thought of Hobby Lobby and told her about the respondents' claim in that case.

If we assume that (a) a human embryo is morally equivalent to a newborn baby and that (b) an IUD or morning-after pill operates sometimes by killing a human embryo, then it follows that using the IUD or morning after pill is sometimes tantamount to murder. But does providing insurance to the the user of the contraceptive method, thus enabling her to purchase and use the method, implicate the employer who provides the insurance in the murder? If so, is an ethical vegan who gives money to a homeless person who uses that money to contribute to violence against animals (by purchasing animal flesh and/or secretions) similarly implicated in violence against animals?

The question is a difficult one.  Plainly, the religious claimants in Hobby Lobby would prefer that no one use IUDs or morning after pills, because they would prefer that no one commit what they believe is the murder of innocent people, whether or not they are morally implicated in that murder.  Likewise, ethical vegans like my daughter who posed the question (and myself, my husband, my other daughter, and several million other people in the United States alone) are disturbed by anyone's consuming the flesh and secretions of animals, because we want animals to be free of such violence, regardless of whether or not we are individually implicated in it.  It is therefore fair to say, I think, that my daughter was hoping that the man to whom she gave money would buy something wholesome that did not contribute to violence against animals, and it is similarly fair to say that the religious claimants in Hobby Lobby hope that no one uses IUDs or the morning-after pill. 

The question of moral complicity can be complicated because if one is committed to refusing to participate in unjust behavior, one is probably also committed to doing what one can legally, ethically, and realistically do to prevent others from engaging in unjust behavior as well.  It is not enough for me, for example, to refuse to purchase the products of animal torture and slaughter (dairy, eggs, and flesh); I hope to educate others about how they can make different choices and thus end their own contribution to unspeakable suffering and death.  My focus is accordingly not always on whether another's action morally "implicates" me or whether I am instead going beyond my own personal obligation to refrain from violence by reaching out to another person in an effort to inspire non-violence toward animals in her as well.  This blurry line between avoiding one's own complicity in wrongdoing and encouraging others to avoid wrongdoing as well is important, because it could help explain why -- if complicity is the predicate for legally protected conscientious objection -- people morally opposed to an action would be motivated to broadly construe the scope of impermissible complicity.

In my book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, I have a chapter called "Mind If Order the Cheeseburger?" in which I discuss the moral dilemma that can arise when a non-vegan dines with a vegan at a restaurant and the former asks the latter whether she "minds" if the non-vegan orders animal-based food.  Confronting this question is difficult for many vegans, because we do feel that saying "Sure, go ahead" makes us complicit in the choice, while saying "Yes, I mind" might seem rude to the non-vegan diner.  I suspect that the claimants in Hobby Lobby would feel similarly uncomfortable if asked "Do you mind if I use the morning-after pill?" and would probably either say "yes" or feel morally obligated to say yes, even if they ultimately kept quiet out of social inhibition (assuming that anyone would ever be in a position to pose this question in the first place).

People who subscribe to a set of moral beliefs, whether technically "religious" or not, then, have two arguably separate objectives:  to conform their own conduct to their values, and to help inspire and motivate others to do the same. Understood in this way, an employer who believes that using an IUD or the morning-after pill is morally equivalent to murder could understandably want to prevent his employees from using these birth control methods.  One way to do so would be to provide insurance coverage that excludes IUDs and the morning-after pill from coverage. Another way might be to require employees to commit in writing to never using their wages to purchase either of these forms of contraception.  But in an interconnected world, it is difficult to imagine a set of circumstances in which an employer could fully and effectively prevent money that was once his money from being used to engage in conduct that he regards as immoral.

Our interconnectedness has many benefits, of course.  But one of the downsides is that it may be impossible to completely escape all complicity in conduct that we regard as wrongful while simultaneously participating in the marketplace.  I suggested to my daughter that I do not think that she is responsible for the non-vegan purchases that the recipient of her money decides to make.  (The alternative would be a mandate to never give poor people money directly.).  It seems to me, however, that providing employees with insurance coverage that includes IUDs and the morning-after pill is at least as attenutated a way of "supporting" the use of these methods as is a donation to a pan-handler a way of supporting his consumption of animal products.  

Attenuation of complicity is inherently a spectrum rather than an on/off proposition, but it may be useful for those attempting to deny insurance coverage to their employees to remember that many of us are routinely confronted with activities that we consider wrongful and unjust and about which we can do nothing.  To the extent that the Supreme Court just gave a limited class of corporate owners the right under RFRA to refuse to face this reality, perhaps because of the (five male Catholics on the) Court's own sympathy for the "life begins at conception" idea, it is doing more than simply respecting the religious exercise of some.  As someone who is among those who strongly object to the use of animals in the making of medicines, as Justice Ginsburg (sort of) references in her dissenting opinion, I hope that the Court will not dismiss my concerns if I am ever similarly situated.  I suspect, however, that the Court will do exactly that, as it implies it might do here, when confronted with Justice Ginsburg's slippery slope argument:

[O]ur decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Though I would not favor the further theocraticization of the workplace, I do find it curious how ready the Court is to distinguish religious objections that the Justices share from those that are foreign to them.  It seems that things are always "different" when your values are not the ones being violated.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Tuesday, 22 Jul 2014 16:58
-- Posted by Neil H. Buchanan

Jotwell: The Journal of Things We Like (Lots), a playfully named but serious publication, is one of the few successful online writing ventures that relies upon a wide range of authors.  Usually, large-scale unpaid ventures are overwhelmed by free-rider problems, but Jotwell has managed to thrive on a model in which each author submits one post per year.  Divided into nineteen sections, from Administrative Law to Work Law, the journal asks its authors to write 1000-word essays describing the best article or book in a given field that the Jotwell author has read in the past year.  I published Dorf on Law companion posts to my previous "jots" in 2013, 2012, 2011, and 2010.

Last year's jot summarized an article in a major economics journal, written by Peter Diamond and Emmanuel Saez, which summarized a body of work on income inequality that they had published with a frequent co-author, a young French economist named Thomas Piketty.  Piketty was so unknown to the outside world at that point that I did not even bother to mention him in my column.  I did mention him in my companion Dorf on Law post, but I managed to misspell his name.  (I am not alone in this type of error.  There is a law review article, co-authored by Professor Dorf, that acknowledges the research assistance of a young law student named Barrack Obama.)

As we all know, the ensuing year has seen Piketty emerge as the global "rock star economist" who wrote the book that everyone is discussing (without having actually read even a single page), Capital in the Twenty-First Century.  With the English translation of his book hitting the top of the bestseller lists, and the initial flurry of red-baiting at least in remission, people are now starting to think seriously about the implications of Piketty's book.  On Jotwell, this led to an unplanned quasi-symposium, with four authors writing jots about the book from different perspectives.  In addition to my piece (Thomas Piketty's Book is Masterful and Important, But Ultimately a Sideshow), there is a piece on the Trusts & Estates sub-site by Kurt D. Schenkel (Trusts and Estates Law and the Question of Wealth Distribution), the Tax Law sub-site by Daniel N. Shaviro (The Return of Capital), and the Work Law sub-site by Michael J. Zimmer ((Re)Booting the Dismal Science).

The central argument of my piece, which I previewed in a Verdict column and DoL post last month, is that Piketty's book is among the least persuasive arguments out there, when it comes to arguing in favor of income and wealth distribution.  In his book, Piketty says that capitalism is arithmetically hard-wired to create ever more inequality, unless we intervene actively and repeatedly to break up concentrations of wealth.  This is true, but in my jot, I essentially say that that particular argument really should be a big snore, given that there are so many other, more immediate and more compelling reasons to worry about poverty and inequality.  I still believe that to be the case, and it also seems clear that there would be no reason to change any part of the progressive/liberal political agenda going forward, even if Piketty's prediction about the next few decades were to turn out to be completely wrong.

Again, however, that does not mean that Piketty's book is unimportant.  Far from it.  Piketty brings important historical and statistical insights to bear on the question of inequality, and he takes a much broader perspective, even for all of the detail that he provides, than is typical for an economist.  That is why the Jotwell quasi-symposium was so interesting.  Professor Zimmer's piece on the Work Law sub-site takes the most direct shot at economics as a field, arguing that the book will do three good things to improve the practice of economics by economists, making the field (1) take macroeconomics more seriously again (rather than treating macro merely as applied micro), (2) more of a data-based social science, like sociology, rather than a self-satisfied preserve of abstract theorists, and (3) increasingly international in scope.

For Professor Schenkel, by contrast, the interesting question is about how a Piketty-inflected policy environment would affect trusts and estates law.  Obviously, if politicians take seriously the problem of inherited inequality, T&E law will become not just a battleground, but also a source of ideas.  He notes, for example, that "[i]t is no secret that U.S. trust law enables far more dead hand control of wealth than that of England," and he asks whether "mechanisms such as spendthrift trusts and Claflin restrictions are ill-advised," or whether "we [can] afford to be sanguine about jurisdictions eliminating their Rules Against Perpetuities."  Given legitimate questions about whether it is even possible to tax wealth effectively, during life or at death (or after), it is clear that even if conservatives succeed in beating back Piketty's disciples, they will have to do so not just by nitpicking his data but by getting into the deep weeds of property law.

Professor Shaviro writes from the perspective of tax law, which is also my primary area of expertise.  Even so, my interest in his jot is not merely a matter of intramural commitments.  In its way, Shaviro's piece is a blistering attack on the state of the legal literature on taxation, as it has developed over the last generation.  Shaviro describes a "sizeable, but as yet little discussed, disjuncture between the frameworks used by Piketty on the one hand, and in much of the last three decades’ tax policy literature on the other hand."  Although he tries to be even-handed about it, saying that "the disjuncture is on both sides," I could not read the second half of the piece without thinking how deeply the critique cuts into the existing conventional wisdom among tax law scholars.

Shaviro writes: "'Capital,' to which Piketty assigns such a central role, has in a sense been banished from much recent tax policy literature," and he then notes that the passage of time is also all but absent from standard "optimal tax" analysis.  Without taking time into account, one cannot even conceive of the questions that Piketty asks, much less address them.  Finally, Shaviro notes that the standard model takes virtually no account of the "externalities" of wealth concentrations, such as inequality's "effects on the functioning of various social and political institutions."

Shaviro does not put it as starkly as he might, but I read his arguments as supporting a devastatingly negative view of the state of legal tax policy literature.  This is hardly surprising, because the legal tax policy literature to which Shaviro refers is (as I have argued many times) merely a faithful application of the standard "neoclassical" economic theory to questions of tax.  Although Piketty actually leaves much of the neoclassical framework intact, even the small amount of heresy that he commits exposes the incredibly narrow worldview of modern economics, as practiced within economics departments as well as in its wannabe precincts like tax law.

In any event, Piketty's book could ultimately change the entire academic approach to studying real-world policy problems.  Even if he were to turn out to be inaccurate in predicting the path of future inequality, therefore, it could help the world much more profoundly if he were to dislodge the unhelpful approaches that have dominated economics and its colonized fields for far too long.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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