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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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