Audi Alteram Partem

Oppositioning Verbizing

2007-10-12T11:55:00.000-04:00

I generally don't like the transformation of verbs into nouns, especially when a verb with the same meaning already exists.

In the past, my (least) favorite example of this trend--probably because it's used so frequently in economics and law--is the word "incentivize," meaning "to establish incentives for." It's an ugly word, and moreover, "encourage" means the same thing. (Similarly, "discourage" obviates the need for the even uglier "disincentivize.")

There's a more recent example that I find just as annoying: "friend," meaning, inter alia, "to become Facebook friends with." We already have the perfectly good verb, "befriend," which conveys the same meaning. "Friend" is almost always coupled with an explicit reference to Facebook (e.g., "I saw her at a party on Wednesday, and then I friended her on Facebook the next day"). Thus, it's unlikely that using "befriend" instead would lead the listener to believe that the speaker actually became friends (of the non-Facebook variety) with someone.

Thoughts?

Disputing tastes?

2007-10-11T09:58:00.001-04:00

Seventh Circuit Court of Appeals Judge Richard Posner was at NYU on Monday to discuss his new book on preventing terrorism.

The book makes three interesting and generally well received points:

1. We have to understand probabilities if we are going to fight terrorism effectively. The Bush Administration's "One-Percent Doctrine"--which holds that if the probability of a particular terrorist threat is at least 1%, we must act to prevent it--is silly according to cost-benefit analysis. A .5% chance of a nuclear weapon hitting Manhattan within the next 10 years is significantly more serious (and thus should engender serious preventive measures) than a 2% chance of a subway bomb in the same time period.

2. Organizational theory can tell us a lot about the structure of our counterterrorism agencies. Posner offered two examples. First, the Director of National Intelligence is responsible not only for heading the 16-member intelligence community (a full-time job requiring the herding of cabinet-level cats), but also for advising the President on national security issues. It's just too much for one person to do.

More importantly, Posner points out the need for a domestic intelligence agency separate from the police force (i.e., the FBI). The FBI's incentives diverge from the nation's, he argues, because the FBI (and individual FBI agents) wants to show objective successes--namely, arrests and convictions. There's nothing wrong with this, except that it systematically results in premature arrests. In some cases, we would be better off waiting and watching suspected terrorists to learn the full extent of their network. Thus, Posner concludes, we should have an independent domestic intelligence agency, with a single official above both it and the FBI who makes decisions about when to arrest potential terrorists and when to let their plans proceed further. An entirely reasonable proposal, I think, and one that almost every other Western nation has adopted.

3. We can't be overly restricted by legalisms when formulating our counterterrorism strategies. Most of the "constitutional law" cited by civil libertarians opposing responses to terrorism are just judicially created doctrines. Moreover, the Constitution is not a suicide pact.

In connection with this third point, Posner argued that the value most people place on privacy is irrational for two reasons. First of all, under current constitutional doctrine, most of the things people treat as "private"--e-mail, internet browsing history, and the like--are not really private. Once they're stored on someone else's server, you've lost your privacy. If people are so cavalier in these areas, why are they so paranoid about domestic wiretapping?

Posner's second argument is the one I find more interesting. He argues that the only logical reason to desire privacy is to control what others know about us and thereby manipulate how others treat us. On this rationale, terrorists and others engaged in illegal activity have significantly more to gain from privacy than the average citizen. Thus, if the average citizen were being rational, she would value privacy much less than polls suggest she does.

My question is this: Does Posner's argument violate what is to him the nearly inviolable principle of de gustibus non est disputandum?

The DOJ Shuffle

2007-04-13T22:28:00.000-04:00

In response to a request for my thoughts on "Attorneygate":

Last December, the Bush administration fired 8 United States Attorneys (USAs), at least 6 of whom had recently received very high job performance ratings. Four of the dismissed USAs had investigated or prosecuted Republicans, 2 had failed to prosecute Democrats in some questionable cases, and 1 had not prosecuted obscenity cases or sought the death penalty in several cases. Outrageous, right? Well . . .

Observation #1: These firings very likely did not violate the law. USAs "serve at the pleasure of the president." The president can ask for the resignation of any executive branch officer at any time, and a 2006 amendment to the USA PATRIOT Act provides that the Attorney General can appoint replacement USAs to serve indefinitely (i.e. until the president submits a replacement candidate to the Senate).

You could claim that the executive is failing his constitutional duty to "take care that the laws be faithfully executed," but this clause is as good as dead as far as judicial enforcement goes.

Observation #2: It looks like the administration used a lot of underhanded tactics. When you fire USAs who prosecute Republicans and fail to prosecute Democrats, it sends a message to future USAs who would like to retain their jobs. Moreover, the administration tried to keep the news hushed, and when the news broke, it claimed that the USAs were fired for performance-based reasons. Sound fishy? Of course, but let's not pretend that the Democrats wouldn't use similar tactics if they had the power to do so.

Observation #3: We lack the resources to prosecute every crime, so we have to make choices about which crimes we will prosecute. Do you want to make those choices randomly? Me neither. I am happy that the NYPD does not prosecute me (and the other 8 million New Yorkers) every time I (we) jaywalk. It is a fairly insignificant crime that harms very few people. Similarly, I was happy that violations of the anti-sodomy law in Bowers v. Hardwick and violations of the 1925 Arkansas law prohibiting the teaching of evolution in public schools (declared unconstitutional in Epperson v. Arkansas) were seldom prosecuted. And I was happy that in the town where I grew up, prosecution of laws prohibiting underage drinking was spotty at best. Vigorous prosecution of these laws in their respective jurisdictions lacked popular support. It doesn't seem at all problematic to decide how vigorously to enforce certain laws based on available resources and policy considerations.

Moreover, if conclusive evidence surfaced indicating that certain USAs were intentionally prosecuting Democrats but not Republicans, the Fourteenth Amendment's Equal Protection Clause (EPC) would likely exculpate the prosecuted Democrats.

Hence, in the abstract, it doesn't seem that what the administration did is all that objectionable.

Observation #4: Those concessions aside, there is an enormous evidentiary problem in bringing an equal protection challenge to disparate prosecutions. It's really hard to prove that a USA is prosecuting more Democrats than Republicans. There are sample-size problems (very few USAs serve for more than 8 years), and there are many differences among cases, making it easy for a USA to claim that she prosecuted one individual for a permissible reason (i.e. not political affiliation) that wasn't present in another case.

Even if you could fix this evidentiary problem, you still have to deal with Washington v. Davis, which says that the Equal Protection Clause doesn't invalidate government actions solely because they have a disparate impact. The EPC requires a showing of intentional discrimination. In other words, even if a Democrat accused of jaywalking could demonstrate that the USA involved had prosecuted 100 Democrats for jaywalking and 0 Republicans, the Equal Protection Clause wouldn't automatically invalidate the prosecution of the Democrat (I say "automatically" because it's possible that a jury would infer intentional discrimination from this extremely disparate impact.).

So what's the solution?

I think the political mechanism worked pretty well in response to this incident. Once the facts surfaced (and they are still surfacing), there was considerable public outrage at the tactics the administration used.

The problem with exclusive reliance on the democratic process is that a more adept administration will avoid firing 8 USAs at once. Perhaps if the firings were spread out a bit more, public outrage would have been less intense.

I like Rick Pildes's proposal to give subpoena power to the minority power in Congress. That way, if a USA is fired for fishy-sounding reasons, some part of Congress will have both the power and the incentive to investigate.

On a side note, I think far too much legal scholarship focuses on the legislature and the judiciary. Sure, the things that Congress and the courts say and do are important, but I think in terms of practical effect, they are a drop in the bucket compared to what prosecutors and administrative agencies do.

Is Law "Just Politics"?

2007-03-14T01:47:00.000-04:00

For the first century of U.S. history, the dominant mode of legal thought was Legal Formalism. Personified by nineteenth century Harvard Law School dean Christopher Columbus Langdell, Legal Formalism maintains that legal reasoning is categorically distinct from other kinds of reasoning (like moral reasoning or political reasoning). The major premise of the syllogism comes from positive law (for example, a statute, the Constitution, or the common law), and when this major premise is applied to the facts of the case at hand, it compels a single logical result.

In the late 1800s and early 1900s, a new school of legal thought arrived on the scene to challenge Formalism. Legal Realism, whose most famous proponent (at least in the early years) was Justice Oliver Wendell Holmes, Jr., holds that legal reasoning isn't any different from any other kind of reasoning. The decision of which major premise should be applied to the facts of the case, on this view, is not at all uncontroversial or foreordained; thus, judges make substantial policy determinations when they decide cases. The best predictor of what the law is, the old Realist adage goes, is what the judge ate for breakfast. On this view, law is "just politics."

These two views have battled for preeminence in the legal world over the last century. After Holmes, Legal Formalism was revitalized in the form of the Legal Process school of thought, championed by Harvard Law School professors Henry Hart, Albert Sacks, and Herbert Wechsler, among others. Then in the 1970s, Realism returned with a vengeance under the name of Critical Legal Studies, which highlighted the ways in which law subjugated certain groups in society under the guise of neutrality. Today, in echoes of economic theory, the consensus is that "we're all Realists now." But Formalism is coming back into vogue in some circles.

(Disclaimer: I place myself squarely within the Realist camp.) So who gets the better of this debate? Is law really "just politics"?

The Formalists are right, I think, to point out that the nature of the judicial role limits what judges can do. Judges can decide only the case before them (appellate courts can affirm, vacate and/or remand, or reverse), and they have little enforcement power, so they can't stray very far from public opinion for very long.

But the fact that some options are off the table when it comes to judicial decisionmaking does not mean that law is categorically different from politics. I think the debate ultimately boils down to how you define "politics." If politics means reaching any specific result one wants at a high level of particularity (e.g., picking the individuals who should win in every future case), then law is probably different from politics. But if politics includes preferences at a higher level of generality (e.g., picking who should decide the individuals who should win in future cases), then I think law is no different from politics.

What do you think?

W

2007-02-25T19:09:00.000-05:00

The law firm I'm working at this summer had a "pre-summer retreat" this weekend. All of the law students who will be working at the firm (including those who go to school and live in New York!) stayed at a hotel in midtown Manhattan for a few days. Here's the evidence that the hotel was too posh for me:

--When I opened the door to my room, I was greeted by trance-like music from the TV with kaleidoscopic images synced to the music. The title of the CD from which the music came? "The Warmth of Cool." Thanks, Derek Zoolander.

--When I got on the elevator, I was joined by a black woman and her teenage daughter. The woman blithely remarked that the hotel takes itself way too seriously. "The party never ends! It's 11am, and the hallways are still dark and the new-age music is still playing in the elevators. And there are no primary colors in my room!"

--The room featured a mirror above the bed and an available "Intimacy Kit."

--There was a button for "Whatever, Whenever" on the room phone's speed dial.

--It took me at least two minutes to figure out how to turn on the water for the bathroom sink.

--The bottle of spring water beside the bed: $8.

The funniest thing that happened to me today

2006-12-21T02:01:00.000-05:00

I was doing some holiday shopping today, and as I was walking down Broadway, I was greeted by a friendly guy with a scruffy beard and a "Greenpeace" binder.

"Hey, how you doing today?" he asked, stepping into the stream of pedestrian traffic with me.

"Not too bad," I muttered.

"You care about our environment, don't you?"

I'll play along, I thought. As long as you walk along with me. "Yep."

"Have you heard of Greenpeace?"

"Yep."

"Well, we're concerned about our environment, too. We're worried that if individuals, corporations, and governments don't change the way they live, we'll experience irreversible damaging trends in our environment." I think this "irreversible" argument is interesting, so I ask him to explain what irreversible trends we're facing. "Well, temperatures are going up fast. Did you know that by 2050 temperatures could rise by 10 degrees? And we're already seeing the effects of this global warming. There was Hurricane Katrina, as well as the tsunami in Asia."

Wait. The tsunami? "Wasn't the tsunami caused by an earthquake beneath the ocean?"

"Uhhh . . . no . . . not according to the sources I have."

Race, Schools, and the Liberal Justices

2006-12-05T09:19:00.000-05:00

Yesterday, the Supreme Court heard oral argument for a case involving public school districts' use of race in assigning kids to particular schools within districts.

(The difference from the affirmative-action programs at the University of Michigan, if there is a constitutional difference, is that in those cases, race was displacing merit as a criteria for admission. In the program at issue in yesterday's case, merit is not a criteria for admission; hence, race displaces only parental choice, if anything, as a criteria for school assignment.)

A lot of the questions from Justices Souter, Breyer, Ginsburg, Stevens, and Kennedy focused on whether there was any reason to suspect invidious motives when a democratically elected school board decided to use race to get the racial composition in each public school in a district to mirror the racial composition of the district's general population.

The lawyers for the school districts were abysmal, so they had no answers, but Justice Scalia piped up with a hypothetical answer: If the population of both the school district and the school board were mostly black, but the best schools in the district were predominantly white, the school board might couch its selfish desire to get a slice of the best schools in the guise of "promoting racial balance" in schools. But although the lawyers didn't have a ready answer about the racial composition of the school board, this hypothetical doesn't seem to apply to the Seattle and Kentucky school districts.

Scalia and the conservatives think that any race-based classification at all is problematic, and they will vote to strike down the programs at issue. The liberals think benign uses of race can survive strict scrutiny. They believe achieving racially balanced schools is a compelling state interest. The dispositive issue, I think, will be whether the programs are narrowly tailored to that end.

Interestingly, in one of the programs at issue in the case, two predominantly black schools were excluded from the racial composition requirements. I think that fact might be important in the "narrow tailoring" inquiry. If it is, the ironic result will be that if the school districts had used race more aggressively (by making the requirement apply to all schools in the district), the program would have satisfied the "narrow tailoring" inquiry, while a less aggressive use of race fails the test.

Stay tuned . . .

Judicial Independence

2006-11-10T11:35:00.000-05:00

Former Supreme Court Justice Sandra Day O'Connor is spending her first post-Court year traveling around the country (including a stop at NYU) speaking about the importance of judicial independence. She's got lots of scary stories about how political actors threaten judges who decide politically charged cases. Her conclusion is that we need to make sure that judges are independent of politics.

I think Justice O'Connor's argument is too simple. It's easy to say that we need judicial independence after a litigant murders a judge's father and husband because she ruled against him. But how independent do we want judges to be? We don't want them choosing their judicial philosophy at random. What's the proper role of politics in vetting the judicial philosophies that make it to the bench?

An Originalist Argument for Substantive Due Process?

2006-10-25T23:04:00.000-04:00

Originalists and textualists love to lampoon substantive due process as a contradiction in terms. The literal meaning of the clause seems to require the government to go through certain procedures before it takes your life, liberty, or property. How could the framers have intended this clause to protect certain substantive rights regardless of how much procedure the government gives?

The progressive response usually takes the form of: Some rights are so fundamental to what it means to be human that the majority should never be able to take them from individuals (or at least not unless the deprivation survives strict scrutiny analysis). But maybe there's an originalist response.

The case of Dred Scott v. Sanford reached the Supreme Court in 1857. Dred Scott, his wife, and his two children were slaves whose master, Dr. Emerson, held them north of the 36’-30” line (northern border of Missouri, north of which slavery was illegal under the Missouri Compromise). Emerson returned to Missouri and sold Dred Scott to Sanford.

Dred Scott sued Sanford in federal court to assert his and his family’s freedom. Sanford successfully argued that the court lacked subject-matter jurisdiction over the case because Dred Scott, like all blacks, was not a citizen of Missouri or the US. (The Constitution gives federal courts subject-matter jurisdiction over cases or controversies between "citizens" of different states.) Dred Scott appealed to the Supreme Court.

The Supreme Court said that because Dred Scott (or his ancestors) was imported to the U.S. as a slave, he could not be a "citizen" under the Constitution. The Court could have stopped there and dismissed the case, but it didn't. It also said that (a small provision of) the Missouri Compromise was unconstitutional because Congress could not deprive citizens (like Sanford) of his property (his slaves). Ostensibly, the legislative process provided by Congress before enacting the Missouri Compromise satisfied the Fifth Amendment's Due Process Clause. So the Court was saying that Congress could not deprive citizens of property at all. (This argument sounds a lot like Locke's Second Treatise of Government: people wouldn't enter a social contract in which they gave up life, liberty, or property.) On this reading, Dred Scott contains dicta endorsing the idea of substantive due process.

All this is the background for the ratification of the Fourteenth Amendment eleven years later. The framers of the Fourteenth Amendment chose language almost identical to the language of the Fifth Amendment. Compare

"No person shall be . . . deprived of life, liberty, or property, without
due process of law . . ."

with

"No State shall . . . deprive any person of life, liberty, or property,
without due process of law . . ."

So, if we adopt a maxim of statutory construction that says that similar language should have similar meanings, then it's arguable that the framers of the Fourteenth Amendment intended to ratify the idea of substantive due process present in Dred Scott.

The objection to this argument is that the first sentence of the Fourteenth Amendment ("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.") overrules Dred Scott. The framers couldn't have embraced a decision at precisely the same time they were overruling it.

My response has to be that the first sentence of the Fourteenth Amendment overrules only a part of the Dred Scott case--the part that holds that blacks can never become citizens. The rest of the opinion stands.

Critical Thinking Is Antagonistic to Success in Law School

2006-10-25T05:00:00.000-04:00

General critical thinking, as it's taught at the college level, teaches you to ask a set of questions:

What are the assumptions in this reasoning?
What fallacies are present in this argument?
What ambiguities are there?
Where is the evidence for that claim? How good is it?
What alternative perspectives are there?

Questions like these may be valuable to ask, but they aren't the right questions to be asking from the perspective of law professors. A lot of law school, I think, is learning the range of permissible arguments in the profession. Much more valuable in the eyes of law professors are questions that raise immanent criticisms of legal reasoning:

Does this argument fall prey to the same problem it reacts to?
Does this reasoning mesh with other fundamental concepts in the law? Can this argument be read as consistent with other closely related rules?
What's really going on here?
How would this argument apply to slightly different situations?
In sum, is this argument internally consistent?

I think the difference in focus is a result of a desire to channel revolutionary forces away from the judicial system and into the democratic process.

Que piensas tu?

Forum-Shopping and Institutional Economics

2006-09-25T10:46:00.000-04:00

The New York Times ran a story yesterday about how Marshall, TX, is becoming a haven for patent litigation. Plaintiffs like Marshall for 2 reasons: (1) the court in Marshall hears patent cases faster than other districts do, and (2) the court in Marshall finds for the plaintiff in a higher rate of cases than other courts do.

I think this is a good illustration of why institutional economists are onto something important. Competition puts pressure on people, and people try to find the easiest way to alleviate that pressure. For competition to be a socially useful motivator, it is important that institutions establish incentives for people to channel their competitive urges in socially beneficial ways. Thus, for example, we want firms to compete by holding the quality of their product constant while pushing prices lower. We don't want firms to compete by erecting high barriers to entry into the market.

Competition is like squeezing a tube of toothpaste from the center. If all of the institutional constraints are set up advantageously, then when you squeeze, the toothpaste will come out of the end of the tube and land on your toothbrush. Bad institutions are like holes in the tube. When you apply the pressure of competition, you get undesirable results.

Is this forum-shopping in Marshall a good thing? I think it's probably a bad thing for courts to compete for business by ruling for plaintiffs in a higher rate of cases. But it may be good for courts to compete over how fast they hear cases on their dockets. Even this kind of competition can be problematic, however, if courts achieve faster disposition of cases by cutting important procedural corners. It's complicated.

Thoughts?

Not a Suicide Pact

2006-09-23T16:33:00.000-04:00

Michiko Kakutani, a controversial New York Times columnist, reviewed a new book by Richard Posner in Tuesday's paper. The review is unfair, naive, and confused.

Kakutani writes that Posner "once co-wrote an article recommending the private sales of babies". (I presume the article to which she refers is Elisabeth M. Landes & Richard A. Posner, "The Economics of the Baby Shortage," 7 Journal of Legal Studies 323 (1978).) This charge has become boilerplate language with which to begin a review of a Posner book that the reviewer dislikes. Posner has responded to this charge before, claiming that in that article he

point[s] out the adverse economic consequences of the present system of regulated adoption, under which a pregnant woman is forbidden to accept a fee for giving up her parental rights to adoptive parents. I do not argue that the economic consequences of this prohibition, though they are indeed serious and adverse (just as with other forms of price control), outweigh whatever ethical or other objections might be raised to changing it. Such a judgment would be out of place in a book on the economic analysis of law. The furthest I have gone in the direction [of recommending the private sale of babies] is to suggest, as an experiment, that an adoption agency be permitted to pay a pregnant woman contemplating abortion to carry the child to term and give it up for adoption rather than aborting it.

Introductions aside, Kakutani quickly gets into the substance of Posner's book. Posner's argument in short is that there is a very real tradeoff between national security and civil liberties, and that if we don't strike the correct balance between the two, we will have neither security nor liberty. The Constitution is, as Posner's title suggests, not a suicide pact. As a result, in times of serious national security crises, judges ought to be more willing to curb the civil liberties mentioned in the Constitution to protect national security. Kakutani writes in response:

This willingness to bend the Constitution reflects Judge Posner's archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis. Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.

One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting.

Accusing Posner of "eschewing larger principles" in favor of short-term consequences either assumes that the larger principles (I assume Kakutani means liberty) are more important than short-term consequences like security or denies the existence of a tradeoff between the two values. If the former, I do not doubt that she is right in some circumstances and wrong in others. The point of Posner's book (and his pragmatism more generally) is to say that judges should engage in a hard-headed examination of which values should trump in certain situations. If Kakutani means the latter, I think she is engaging in wishful thinking of the worst kind.

Kakutani continues:

In fact, Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience's sake.

Posner wouldn't bend it for convenience, but he would bend it for continued existence. Then Kakutani writes:

Many of Judge Posner's arguments in this book are riddled with self-serving contradictions. While he declares that "the Bill of Rights should not be interpreted so broadly that any measure that does not strike the judiciary as a sound response to terrorism is deemed unconstitutional," he also argues that "a constitutional right should be modified when changed circumstances indicate that the right no longer strikes a sensible balance between competing constitutional values, such as personal liberty and public safety."

Constitutional text has a lot of play in it. As a result, judges can always find an argument for a reading that aligns with their political preferences. Almost every reading of constitutional text has counterarguments, so every reading is in some sense a "bending" of the Constitution. The first principle Kakutani cites stands for the idea that judges shouldn't bend the Constitution so as to declare unconstitutional the political branches' reasonable responses to terrorism. The second stands for the idea that judges shouldn't continue a line of constitutional jurisprudence when it obstructs the sensible balances struck by the elected branches. Both quotations express a preference for deference to elected officials. So where's the contradiction?

Kakutani concludes her review with the following:

Judge Posner believes that "additional counterterrorist measures, in particular in the related areas of electronic surveillance and computerized data mining, could be taken without violating the Constitution (even if there were a clear constitutional right to informational privacy), especially if the effect on privacy is minimized by a strict rule against using information obtained through such means for any purpose other than to protect national security." And he writes that "coercive interrogation up to and including torture might survive constitutional challenge as long as the fruits of such interrogation were not used in a criminal prosecution."
So is there anything Judge Posner thinks the Constitution forbids? He writes: "But there is no handle in the constitutional text for the unilateral assumption of dictatorial powers by the president, no matter how desperate the circumstances. We don't want the Constitution to be just an old piece of parchment."
That snarkily delivered "just," along with the use of the adjective "unilateral" to modify "assumption of dictatorial powers," says it all: this book suggests that Judge Posner does regard the Constitution as an old piece of parchment-- a piece of parchment with certain rules, but rules that "are made to be broken" by a president during an emergency, no matter how long that emergency may last.

Where in Kakutani's copy of the Constitution is there a prohibition against "electronic surveillance and computerized data mining"? The Fourth Amendment prohibits "unreasonable searches", but Kakutani doesn't discuss where the line of reasonableness lies (though she hints where she thinks it should be). The Constitution doesn't explicitly prohibit torture, either. Maybe she's basing her implicit argument on the Eighth Amendment's prohibition of "cruel and unusual punishments" or the Fifth Amendment's language that prohibits the U.S. from depriving persons of "liberty . . . without due process of law." But those arguments need to be fleshed out if she expects to convince anyone who applies critical thinking skills to them.

Kakutani's reading of Posner's statement on the unilateral assumption of dictatorial powers is unfair. Nowhere does Posner claim that the president can constitutionally assume dictatorial powers in a multilateral manner.

Her parchment argument is unfair, too: the Constitution is an old peice of parchment. It was signed 217 years ago. It is parchment. Posner is saying it must also be something more; it must stand for the outermost limits of governmental power. Posner's view is that judges should be hesitant to use a document passed 217 years ago to overrule the actions of officials elected by current majorities. Kakutani's view seems to be that the Constitution should mean what her political preferences mean. But other people have different political preferences. The Constitution and the judges who interpret it enjoy democratic legitimacy when they're not perceived to be up-for-grabs to whichever political party can control the bench. Posner may be wrong about where we should strike the balance between security and liberty (so might Kakutani), but that doesn't mean he's wrong about what the Constitution allows.

One expects more from a book review in the New York Times than a collection of quotations taken out of context and meant to turn left-wing readers against Posner's views before they hear his full argument.

The Funniest Thing I Heard Today

2006-09-13T14:36:00.000-04:00

Richard Epstein is spending a few weeks at NYU before his classes begin at Chicago (a school on the quarter system). Today he talked about his newest book, How Progressives Rewrote the Constitution.

He told a story about how, during Justice Clarence Thomas's Senate confirmation hearing, Senator Joe Biden held up Epstein's book on government takings and proclaimed that anyone who shared the philosophy of the book was unfit to serve on the Court. Epstein said he loved the press he was getting, but it stopped abruptly after about an hour, when the Anita Hill accusations surfaced.

"Sex beats law every time," Epstein said. "But I still prefer to talk about law because that's where my relative expertise lies."

Why I Love Dick Epstein

2006-09-08T17:54:00.000-04:00

Dick Epstein taught the second half of my Property class today. Now, I'm not a big Epstein fan. I saw him speak a few times last year, and I disagree with him on a pretty fundamental level. He's arrogant, too; last year, a student-edited journal at NYU invited him to give the inaugural Hayek Lecture (Friedrich Hayek was a famous Austrian economist). Epstein's introduction to the lecture was: "I had to stop by your Dean's office earlier this afternoon because I forgot what I was supposed to talk to you about."

Epstein is somewhat of an intellectual bully in the classroom; his "Socratic" questions are ridiculously close-ended--more like a lecture than a dialogue--leaving students little room to question his arguments. Yet there are a few things I really admire about him.

Dick Epstein is one of only two people I know who can speak at full speed while maintaining the logical density and continuity of a scholarly book or article. His mind runs in a gear that very few people have. It's no wonder he's such a prolific writer; his ideas come out fully formed and polished.

Epstein always keeps one eye on the big picture when he analyzes legal rules. He follows consequences through several waves, asking whether the result is sustainable and efficient. In a related vein, he's got a sharp eye for nuance. He's got well thought-out arguments for why rules for hunting whales should be different from rules for hunting foxes.

Flood Insurance

2006-08-05T16:05:00.000-04:00

After Katrina, many New Orleans residents whose homes were destroyed by flood damage had no flood insurance and thus lost their largest asset. They had no flood insurance because it simply wasn't available. Why not?

My guess is that it's a form of the adverse selection problem. Insurance companies usually offer insurance to a large number of people whose likelihood of sustaining a particular kind of loss is small and not necessarily concurrent. So, for example, car insurance companies sell insurance to a large number of drivers, each one of whom has a small probability of getting in an accident. Moreover, there's no reason to believe that all drivers will have an accident on the same day (forcing the insurance company to make an enormous payout). Small fluctuations in claim payouts don't bother large, risk-neutral insurance companies. The insurance company can then charge an appropriate premium by calculating the average number of accidents that will occur each day/month/year. (The government helps out car insurance companies--perhaps unintentionally--by requiring all drivers to buy car insurance so that the insurance companies aren't stuck insuring only the worst drivers.)

But insurance companies have little incentive to offer flood insurance to people who live in places like New Orleans, 45% of which is below sea level, where if a flood happens, everyone is affected. Insurance companies may be risk neutral over small fluctuations in claims, but not over extreme fluctuations: they can't pay out claims to everyone simultaneously. So they just don't offer flood insurance.

Adverse selection is a market failure that even neoclassical economists recognize. It seems to me that one way to solve this problem is to provide it publicly. Another way is to require everyone to purchase flood insurance (and probably require insurance companies to have a certain percentage of customers who live in a flood plain)--that way, people who live in low-risk areas subsidize those who live in high-risk areas.

Of course, we probably don't want to subsidize flood insurance too much; after all, we don't want to give people incentives to live in areas likely to be plagued by natural disasters. (We wouldn't want to subsidize homebuilding on the slope of a volcano, would we?)

On the other hand, incentive arguments like this one are arguments about efficiency; they assume a level of equality (or perhaps fairness is a more apt word) among individuals subject to those incentives. So, for example, getting rid of welfare might encourage more people to go to work, but we keep welfare because we believe that not everyone has an equal opportunity to get a job. In other words, efficiency ain't all. So if we believe that residents of New Orleans don't have perfect flexibility to live anywhere in the country, we might be less concerned about the incentives they face.

Thoughts?

Note Idea

2006-07-19T14:18:00.000-04:00

In their second and third years of law school, law students often write long papers about the law--called notes or comments--for publication in student-edited law journals. I'm starting to think about topic ideas for a potential note next year.

Here's one idea: I want to explore the extent to which the doctrine of stare decisis does and/or should apply to wartime cases.

I stumbled on the idea while reading the recent Supreme Court decision in Hamdan v. Rumsfeld. In that case, the Supreme Court was faced with a lot of previously decided cases about what procedural guarantees the military must give enemy combatants during wartime. In a nutshell, the cases from the Civil War era said that the government owes enemy combatants a lot of procedural safeguards, while the cases from WWII said that the government owes few procedural safeguards to enemy combatants. The Supreme Court in Hamdan eventually followed the Civil War cases.

I want to look at the reasoning in the joint opinion of Justices Souter, O'Connor, and Kennedy in Planned Parenthood v. Casey, a 1992 case in which the Court upheld Roe v. Wade not because it was rightly decided in the first place, but because "[l]iberty finds no refuge in a jurisprudence of doubt." The opinion discusses some factors that affect when stare decisis should apply to a precedent of questionable persuasiveness. So I want to look at the extent to which those factors in Casey apply to wartime cases.

One initial thought: The factual underpinnings of wartime cases change greatly over time. The Civil War cases were unique because we were dealing with enemy combatants who were also American citizens. Today, we're fighting a war against stateless enemy combatants. Plus, pursuant to Justice Jackson's famous concurring opinion in Youngstown, Congress has taken different stands with respect to treatment of enemy combatants in wartime, thereby altering how the president can constitutionally treat them. So perhaps the fluidity of the factual underpinnings is a reason against a rigid application of stare decisis in wartime cases.

Other thoughts?

Living Vicariously

2006-07-19T10:33:00.000-04:00

I wonder whether anyone else has noticed this phenomenon: It seems to me that, through a certain age, kids focus primarily on personal achievement. Then, as they get older, something happens, and they start to settle. Their aspirations shift from personal achievement to setting their kids (or others) up for greatness. Almost all grandparents I know are in this latter stage; most parents are, too. When was the last time you saw a 65-year-old running marathons? It seems to me that the casual conversations of most parents and grandparents revolve around their children and grandchildren. "My grandson scored 3 goals in his soccer game last night." "Well, my granddaughter is going to Michigan next fall."

What is that something? Maybe the world is too rough. Maybe humans aren't good at dealing with failure when they've made an effort to succeed, so after so many disappointments, they have to lower their expectations; no more shooting for the stars.

Am I right about the existence of this phenomenon? If so, anybody have any thoughts on explanations for it?

Faux Cosmopolitanism

2006-07-18T14:47:00.000-04:00

If you need more evidence that Americans don't care about all people equally (and of course not just Americans are guilty of this practice), today's New York Times reports that more than 3,000 Iraqi civilians died in the month of June. That number is higher than the number of casualties from 9/11. And the victims are just as innocent. But people aren't glued to their TVs in shock and horror, are they?

I'm about a third of the way through Martha Nussbaum's new book, Frontiers of Justice (reviewed here). She argues that Rawls's social contract theory doesn't provide adequately for justice to the disabled, to non-human animals, and, most importantly for purposes of this post, to people across international borders. The fictitious "original position" assumes that the parties to the social contract are in roughly equal positions of power (after all, the hallmark of a contract is a quid pro quo, and if you don't have anything, you have nothing to trade away). But there are remarkable disparities of power across people in different countries.

I'll post a fuller review of Nussbaum's book shortly.

Market Failures?

2006-07-14T00:17:00.000-04:00

My Wednesday evening flight from Newark to Ohio got cancelled due to weather, but I didn't learn of the cancellation until I arrived at the airport. Continental never notified me of the cancellation (via e-mail or phone), yet refused to pay for my cab fare back to the City or to an alternative flight out of LaGuardia; their "weather policy" doesn't "permit" such an accommodation.

Why isn't there a market for travel weather insurance? I'm risk averse, so I think I'd be willing to pay a few extra bucks for a guarantee that the airline will do everything in its power to get me to my destination on time come hell or high water. But it's not even a choice available to me.

We're looking at a market with very few large firms. Is the problem I described an example of one of those large firms flexing its market power?

Now, market advocates might say that we're not necessarily witnessing market power. Perhaps the transaction costs of negotiating the terms of such a contract would outweigh whatever consumer and producer surpluses it created. Or maybe such terms are--in most passengers' eyes--advantageous, because they save passengers a few bucks.

Thoughts?

Wow

2006-07-02T22:05:00.000-04:00

Two of my friends and I just finished watching an A&E documentary on a neo-Nazi skinhead group outside Birmingham, Alabama. The group gave A&E unfettered access to their compound and meetings. The group's leader was a fairly charismatic, avuncular thirtysomething who owned a house (?) in some backcountry Alabama woodlands. Guys in their teens and early 20s composed the rest of the group. The show provoked a few thoughts:

1. Much of the show was comic to us; the independent thought and airtight logic filled the capacious hour. A few parts were less surreal and thus more disturbing. Obviously the group leader wasn't winning these kids to his group with his well-reasoned ethical arguments; I think the draw of the group was its freedom and its ability to fulfill the "Boy Scouts" gap in their lives. They spent their time shooting rifles and shotguns in the woods, drinking beer, saluting the Nazi flag, denouncing the way our country has been overrun by non-whites, and talking smack about what they would like to do to the Jews and blacks in the US.

2. The group held a few demonstrations and marches on the streets of Birmingham. Birmingham police officers were present in large numbers to ensure riots did not break out. Many of the officers were black. What must it be like to be a black cop defending a group of screaming skinhead yoohoos? If I were in that position, I seriously wonder whether I wouldn't have occasional security "lapses."

3. Four kids in the group were arrested for the murder of a black homeless Birmingham man. Now, I don't know whether those kids actually committed the crime, but if they did, I think it's a pretty damn good example of how excessively individualistic American law is. The group leader clearly provides the fuel for the kids' fiery bigotry, yet the law imputes to the kids the ability to evaluate competing ethical arguments and imposes responsibility on them when they act upon those evaluations. Where, praytell, are these kids supposed to learn such evaluative skills? What would be the consequences of our taking a more comprehensive view of the causes of the situation? Would we become more conscious of social interconnectedness if our law permitted the prosecutor to charge the neo-Nazi leader with the murder?

Thoughts?

A Flaw in Our Constitution?

2006-06-28T15:30:00.000-04:00

The Supreme Court decided today that in all but one instance, Tom Delay's mid-decade Texas redistricting plan does not violate the Equal Protection Clause of the U.S. Constitution. In theory, the decision opens the possibility that each time a new party comes into power, that party can redistrict in a way that sharply increases the chances that it will remain in the majority. To the victor go the spoils.

As many journalists and legal scholars predicted from oral argument, Justice Kennedy was bugged by the lack of a workable standard for determining whether a given redistricting plan is a proper change to reflect changing demographics or an unconstitutional gerrymander. And I agree with him; the Constitution doesn't establish a standard, and there's no obvious, commonsense metric, either. So the Court said that without a workable standard, we're better off leaving the issue to elected politicians than to unelected judges.

But this issue seems especially ill-suited to be a political question. There's a terrible moral hazard problem. For a number of reasons, voters are best served by having districts in which elections are close. (You might argue--not unpersuasively--that if one party dominates a district, that party's primary will serve as the competitive election so important to a republic. But that practice effectively disenfranchises voters in the other party.) But each elected legislator has a strong incentive to fix the rules of the game so that she can win future elections easily. To solve this moral hazard problem, we need our redistricter to be free from the incentives that face elected politicians.

I see two clear alternatives. Judges could do it. See John Hart Ely, Democracy and Distrust (1980) (arguing that the role of unelected judges should be to reinforce democratic representation). The problem with this approach is 2-fold: (1) as Justice Kennedy noted, there's no law to apply, so judges are deciding cases in uncharted territory, and (2) unelected judges have political interests and preferences, so their decisions will be and/or will appear to be political. Of course, the Supreme Court's legitimacy is high, so perhaps the justices could do it without creating a huge backlash.

The other alternative is for the people to do it. A constitutional amendment specifying the methodology for redistricting would avoid the moral hazard problem and would give judges a standard for deciding future cases. The problem with this approach is that Article V of the Constitution requires the approval of two-thirds of each house of Congress, and both houses are currently dominated by one party. Thus, the GOP could set up an amendment that favors their insulation from political competition. The ideal timing for such an amendment would be when neither party dominates and thus both have similar interests. For example, 2 years ago was an optimal time for a constitutional amendment allowing naturalized citizens to become president because both parties had potential future naturalized presidential candidates (Schwarzenegger and Jennifer Granholm).

So how do we fix this problem? I don't know.

On a side note, the plaintiffs in the case (challenging the redistricting plan) argued that the highly irregular geographic shapes of some of the districts were clear evidence of a sleazy gerrymander. I don't see any reason (other than perhaps convenience) why districts ought to be based on geography.

Click here to read the Court's opinion.

The Flag-Burning Amendment

2006-06-27T16:36:00.000-04:00

The Senate is debating a constitutional amendment to empower Congress to criminalize the physical desecration of the American flag. Some loosely related thoughts on the matter:

1. Fifteen years ago, a Yale Law School student named Jeff Rosen (the same guy, I think, who now writes regularly for The Atlantic and The New Republic) wrote a fascinating student note arguing that a constitutional amendment banning flag desecration would itself be unconstitutional. In short, Rosen argues that free expression is a natural right retained by the people in the Ninth Amendment; thus, even an amendment to the Constitution could not compel courts to enforce a law criminalizing the exercise of that natural right. See Note, Was the Flag-Burning Amendment Unconstitutional?, 100 Yale L.J. 1073 (1991). The argument is interesting, but I doubt the current state of Ninth Amendment jurisprudence supports it. I'm also skeptical that the Supreme Court would ever take a case challenging the constitutionality of a constitutional amendment, though a kooky appellate judge could force the Court's hand by trying to strike it down.

2. Is flag burning really happening? I really tend to agree with Democratic Senators who argue that conservatives are using debate on this issue to rouse their base into action in November.

3. But let's assume the proposal is not disingenuous; suppose its supporters really are concerned about stopping desecration of such an important national symbol. I wonder whether the amendment might backfire. Would flag-burning become more attractive to political protesters if it were illegal?

4. I think a flag-burning amendment is ridiculously dumb, and I would never vote for it, but I disagree with liberals who think such an amendment would be the end of the world. Their arguments sound an awful lot like slippery-slope fallacies: if we allow the government to tell us that we can't say X, what's to stop them from censoring us from saying Y? Well, the very limited scope of the amendment, for one thing. The proposed constitutional language is: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States."

Too, to what extent are the goals of the First Amendment undermined by the proposed amendment? The conventional view of the First Amendment is that by permitting all ideas to compete in an open public forum, good ideas will succeed and bad ones will be rejected. But is the idea conveyed through flag desecration one that cannot be expressed in any other way?

5. I find this issue fascinating because of the splits it causes among people who usually vote the same way (and unions it creates among people who usually hate one another). Scalia probably has very mixed feelings about the amendment. Communitarians probably have to accept it. Liberal political theorists hate it.

Thoughts?
---------------------------------------
[GC] Update: Check out Hendrik Hertzberg's article in The New Yorker on the proposed amendment.

Individual Responsibility as Favored Evolutionary Belief?

2006-06-25T19:42:00.000-04:00

Evolutionary biologists sometimes come up with some fascinating yet essentially untestable make-sense stories for why we have certain biological or cultural traits. See, e.g., Daniel Dennett, Breaking the Spell (2006). In that tradition, I wonder whether a strong belief in individual responsibility might have been a favored cultural trait.

If an individual believes that what happens to people is primarily a function of aleatory factors, she is more likely to care for the offspring of less fortunate individuals. But expending resources on offspring not carrying your genes takes away from the resources available to offspring carrying your genes, thus decreasing the probability that your kids will survive long enough to have kids of their own. If, on the other hand, an individual believes that what happens to people is primarily a function of their choices, she is less likely to care for the offspring of less-well-off individuals. Instead, she can expend those resources on her own offspring, increasing the probability that they will survive to adolescence. Thus, ceteris paribus, individuals who strongly believe in individual responsibility are more likely to survive lean times and pass on their genes successfully. Regardless of its underlying soundness, a belief in individual responsibility might have had pragmatic advantages in the process of natural selection.

Of course, this argument makes some important assumptions. First, it assumes that the evolutionary advantages of a belief in individual responsibility aren't outweighed by the advantages of cooperation in lean times. And second, it assumes that a belief in individual responsibility doesn't have other negative behavioral consequences--a questionable assumption. After all, if you believe that your food production is largely independent of your effort, you'll probably exert less effort than someone who sees her food production as closely tied to her effort. Third, it assumes that communities have understood the logical nexus between sources of causation and conceptions of responsibility for a long enough period for evolution to work its magic.

I'm sure someone's made this argument before. Thoughts/responses/critiques?

An Inconvenient Truth

2006-06-15T19:02:00.000-04:00

I'm in DC for the ACS National Conference this weekend. The conference officially begins tomorrow, and though there was a student retreat today, I wasn't up for attending any of the student panels, which, I suspect, consisted of little more than Bush-bashing law students. I'm no fan of Bush, but I don't see the profitability of rants.

So instead I went to see Al Gore's documentary about global warming, An Inconvenient Truth. The film features Gore showing a PowerPoint presentation replete with animated graphs to a studio audience. Now, lest that last sentence turn you off to the film, I should add that the movie was never boring and that, since 2000, Gore has figured out how to eliminate almost all of the monotony from his voice.

Gore presents overwhelming evidence about the nature, extent, and consequences of the global warming problem. Now, a good critical thinker could call into question quite a bit of Gore's evidence (I don't remember seeing more than 2 graphs with denominations on the axes; plus, Gore jumped from correlation to causation pretty damn fast), but really, I don't think the evidence is the film's problem. Besides, the documentary isn't for climatologists; it's for laypeople.

So if the evidence is good, what's wrong with Gore's argument? A lot, I say. If Gore really wants to solve the global warming problem (a big if), I think he's got to go deeper. People who believe in science as a primary way of knowing things probably already believe that global warming is a problem. Maybe Gore's documentary will increase the urgency of the cause in their eyes for a few weeks, but really, they're already on board. Gore has to convince people with different epistemologies. For example, I grew up learning that God created the earth for man; nothing man can do can destroy the planet. On that view, all the evidence about global warming, nuclear weapons, water, etc. won't matter, because God trumps science. People who hold epistemologies like this one don't put much stock in evidence that suggests their Hummer caused Katrina.

Now, to be fair to Gore, I don't think a 100 minute documentary can possibly change the epistemological views of millions of people with a lot of conviction. But he's got to do better than graph after graph after graph. He's got to use more pictures to strengthen the link between my behavior today and the bad things that will happen to me tomorrow. I'm not even sure whether it's possible, but I'm pretty sure Gore didn't do it.

Last criticism of the documentary: Gore closes the film with a list of things you can do to help solve the problem. Great. Does anybody really believe that their individual behavior makes a difference? We need legislation, not three committed hippies riding their bikes to work.

Thoughts?

A Recent Trend in American Politics

2006-06-06T22:53:00.000-04:00

Warning: This post is about what I argue is a recent development in politics. I'm always skeptical when people argue that something new is appearing on the political scene. ("American politics are more fiercely partisan than ever before." Oh yeah? Are our politicians challenging one another to duels? Alexander Hamilton and Aaron Burr fought one.) Don't spare my argument that same skepticism.

Most conceptions of democracy make some strong assumptions about who people are. They're supposedly both disinterested--able to be persuaded by arguments for policies against their individual best interests--and interested--actively engaged and voting in every election. These assumptions lead to the median voter theory: in a pairwise election, the candidate who can capture the median voter will win. Politicians who bought into this theory tailored their platforms to the median voter.

But clearly the second assumption is too strong. People don't care enough to vote in every election. And others care, but they express their dissatisfaction with a candidate not by voting for the other party, but by not voting at all. George W. Bush and Karl Rove realized this fact in 2000 and capitalized. They centered Bush's campaign toward the GOP base--evangelical Christians--not the median voter. [Am I wrong about when this trend started?]

The fallout of this development is that politicians nowadays spend much time and effort striving to portray the descriptive status of their position as weak ("Conservatives are hijacking the country") in an effort to increase the urgency of their cause in the eyes of their base. Evangelical Christians are more likely to turn out on election day, for example, if they believe that liberal moral relativists are using the legislative process to shove gay marriage down the nation's throat.

But the descriptive status of a position is logically irrelevant to the normative merits of that position. Thus, this development leads to a lot of what I think is wasted talk. (Of course, it's not wasted from the perspective of politicians who enjoy the benefits of an energized base.)

A more problematic result of this development, I think, is that politicians are less willing to engage the arguments of the other side. When both parties were going for the median voter, they had to argue from within the same set of value preferences. So, for example, if gas prices were the most important issue to the median voter, each candidates had to explain why her policy proposals would lead to lower gas prices relative to the other's policy proposals. But now that politicians cater to their bases, they can refuse to engage their opponents on important issues. Gas prices? Let's talk about gay marriage instead. Fighting terror? Let's talk about government corruption instead.

I suppose you could argue that the glass is half full; nowadays, we have a robust public debate about which set of value preferences we should adopt. [Though I'm not entirely convinced that, in theory, we can have a meaningful debate about such different values; how the hell do you argue that equality is better than freedom? But see Noah Feldman, Divided By God: America's Church-State Problem--And What We Should Do about It (2005).] But this argument implicitly adopts the first assumption that most theories of democracy make: that people are persuadable. I think an enormous majority of people on both ends of the political spectrum are probably unpersuadable.

Thoughts? Comments?

How Progressive Can We Go?

2006-06-06T18:19:00.000-04:00

Progressives like to argue for radical redistribution of income through the tax system; conservatives like to counter by pointing out the incentives such redistribution establishes. Neoclassical economic theory supports the conservative response: if we increase taxes on capital to too high a level, domestic interest rates fall relative to international interest rates, investors take their capital abroad, and we experience lower consumption at home. We're more equal but poorer. A sad story.

But how close are we to this doomsday prediction? Tax rates in Eastern Europe are very low (average tax rates below 15%, compared to nearly 20% in the U.S.). Yet we don't see a rush of capital from the U.S. to Eastern Europe, mostly because investors are risk averse and U.S. investments are more secure than investments subject to the whims of less stable foreign governments. How much more progressive can we make the tax system before we see serious capital flight? I'm sure NBER has a working paper on this question.

Thoughts?

Everyday Low Prices

2006-06-05T22:52:00.000-04:00

Joshua Green has a fascinating article about Wal-Mart and the national health care debate in the June issue of The Atlantic. Wal-Mart workers' low wages and inability to get health care make them frequent occupants of the TANF and Medicaid rolls. So states, who pay the lion's share of these social nets, are fighting back. Maryland, for example, implemented a law requiring all companies who employ more than 10,000 workers in the state to spend at least 8% of their payroll on employee health care. Wal-Mart is the only employer whom the law affects.

As a result of the Maryland law and other proposed laws like it, Wal-Mart executives are beginning to find the idea of national health care less distasteful. This corporate support, Green argues, is exactly what might be needed to pass some sort of a national health care plan.

My casebook from my Administrative and Regulatory State class last semester summarizes a lot of empirical work indicating that the best factor for predicting whether a given law will pass is not the level of support it has, but rather the level of opposition it has. So, for example, we give more foreign aid to Israel not because of the overwhelming strength of the Jewish lobby, but because of the absence of any real pro-Palestinian lobby. [The reason, in short, is that our legislative system has a lot of places--sometimes called vetogates--in which a small but determined group can derail a proposal.] If this research is accurate (I know I'm asking you to take my word for it), Green's argument holds only if he assumes that Wal-Mart and other big businesses are the primary obstacle to national health care.

Are they? Obviously libertarians will still oppose national health care, but libertarians aren't a major force to be reckoned with in American politics. Religious conservatives probably aren't entirely opposed to the idea. But what about doctors? I suspect they're opposed to the idea. Right now our federal government is spending half a trillion dollars more than it takes in each year. Adding more spending in the form of a national health care plan will only increase the pressure to cut spending elsewhere. (Of course, when the Iraq war tapers off, our deficit will fall some.) A natural target for politicians at that point will be those doctors earning 6-figure salaries from Uncle Sam. So 2 questions: Are doctors as a group opposed to national health care? And if so, how substantial is their opposition?

Book Review: Active Liberty

2006-05-25T15:04:00.000-04:00

I read Supreme Court Justice Stephen Breyer's Active Liberty on my plane ride to California last week. I'll review it, but first, I should note that my review will be unfair. Breyer is a sitting Justice, so he can't say what he really believes on many issues. His book is only 135 very small, widely spaced pages. The Court's legitimacy and his legacy come ahead of honesty for him. Think of it this way: if I asked you to tell me everything you knew about sex, and you knew your mother was listening, a full-fledged critique of your response wouldn't be very fair, would it? Likewise with Breyer. Nevertheless, I'll review what he actually wrote, not what I think he might have written if he were unencumbered by his position on the Court.

Breyer begins by invoking Benjamin Constant's distinction between 2 kinds of liberty: the liberty of the ancients (the collective freedom to enact laws to govern one's community--e.g., the right to vote) and the liberty of the moderns (the individual freedom from government interference in certain areas of one's life--e.g., the right to free expression). Cf. Isaiah Berlin, Two Concepts of Liberty, Inaugural Lecture Before the University of Oxford (Oct. 31, 1958), in Four Essays on Liberty 118 (1969) (distinguishing between positive liberty--similar to the liberty of the ancients--and negative liberty--the liberty of the moderns). (Interestingly, though Breyer never notes it, Constant argued against the liberty of the ancients and for the liberty of the moderns.)

Breyer argues that the Constitution's primary objective is to promote the liberty of the ancients--what Breyer calls active liberty. For example, the Constitution prescribes the manner through which we elect our government officials and limits their term lengths. Even the modern liberties protected by the Constitution, Breyer argues, are designed to promote active liberty (for example, the 1st Amendment protects free speech to ensure that citizens can discuss how they ought to govern themselves).

Thus, Breyer concludes, active liberty should be the purposive lens through which judges should interpret statutes and the Constitution. Judges should be pragmatic, considering the likely consequences of and values embodied in each case and deciding each case based on the outcome that will promote active liberty to the greatest extent.

Side note: If you've read John Hart Ely's Order-of-the-Coif-winning Democracy and Distrust (1980), you might be forgiven for wondering whether Breyer's book has already been written. And nowhere does Breyer cite Ely's book (which, by the way, is the most-cited legal book year after year). Hmmmmm.

Generalities don't decide concrete cases, though, so Breyer illustrates his method at work through 6 examples: free speech, federalism, privacy, affirmative action, statutory interpretation, and judicial review of administrative agency action. So, for example, the purpose of the 1st Amendment's protection of free expression is to protect public debate from government interference. Thus, political speech aimed at shaping public policy deserves the greatest level of constitutional protection from government interference. Commercial speech, on the other hand, serves a different purpose, so it doesn't warrant the same constitutional protection. Breyer's 6 examples take up the bulk (70 pages) of the book.

The book finally gets good in the last 15 pages. Breyer takes on literalists (read: Scalia). He argues that their method is unsatisfactory for a number of reasons. First, the framers of the Constitution didn't prescribe an interpretive practice for judges to use, so literalists can't resort to original intent to justify their method. Hence, Breyer argues, they have to justify their method through consequences--for example, protection of the law from judges' subjective values, promotion of the will of the people, etc. (Ronald Dworkin makes this point well in response to Justice Scalia's textualism in A Matter of Interpretation.)

But once literalists start to play the consequences game, Breyer has them on the ropes. With respect to discouraging judicial subjectivity, judges who adopt his method are aware of how far-reaching their decisions may be. And they understand the need for rule-of-law virtues like stability, predictability, and consistency with their prior decisions. (NRF told a story in class that Justice O'Connor, a fairly purposive Justice, had on the couch in her office a pillow with stitching that read: "Maybe in error, but never in doubt." Intellectually, that pillow makes me want to puke, but I understand the need for such a principle in the highest Court of the land.) Third, consideration of consequences doesn't mean the judge gets to pick the outcome willy-nilly. Rather, they decide cases based on the purpose of the democratic text they're interpreting. (This last point is certainly a straw man. Nobody but the most caustic legal realist believes that judges decide cases willy-nilly. A more intellectually honest defense would feature Breyer's explanation of what judges should do when a statute has multiple purposes that conflict with one another.) And even when purposive judges do deviate from prior law, such deviation is not always a bad thing. You don't want to reaffirm Plessy v. Ferguson, do you? (Unfair, I know--regardless of the merits of the legal reasoning in Brown v. Board of Education, everyone has to sing its praises.) Finally, literalism is not entirely free of judicial subjectivity. Plain meaning of statutory language, structure, and history often fail to provide an unambiguous answer, and many canons of interpretation conflict with one another. Thus, literalism has its own inherently subjective elements.

With respect to producing clear rules, literalism sometimes fails in cases where statutory language has multiple plain meanings. Purposivism can produce clarity through metaphors and examples (after all, the common law worked that way). Moreover, "[e]very law student whose class grade is borderline knows that the benefits that rules produce for cases that fall within the heartland are often lost in the cases that arise at the boundaries."

With respect to fidelity to democratic will, excessive literalism can thwart the intent of the people. Let's be realistic about how democracy works, Breyer says. Citizens don't parse statutory language to determine whether to reelect a representative; they listen to the representative's statement of her values. Hence, we should interpret statutory language in light of those values.

Although Breyer titles his last chapter "A Serious Objection," he certainly doesn't respond to the most serious version of the objection to his method of interpretation. His argument rests on the unsubstantiated assumption that all statutory or constitutional text has a single, easily discernible purpose. When this single purpose isn't obvious, Breyer instructs judges to ask what a reasonable legislator in the position of the enacting legislature would have done. But though jurists talk about reasonable as if it connotes an objective point of view, judges can't step outside of their beliefs and experiences to take on a "view from nowhere." For example, in Romer v. Evans, Justice Kennedy thought Colorado's Amendment 2 (banning state and local government from protecting gays from discrimination) was unreasonable; Justice Scalia vigorously disagreed. This criticism isn't impossible to overcome, but I think it's something Breyer should have addressed in the book.

Moreover, Breyer rests his argument on a fairly rosy conception of democracy. If most statutes were the result of interest group deals among large corporations, would he still support a purposive interpretive method?

I think my strongest criticism of Breyer's book, though, is that I doubt it convinced anyone to adopt his interpretive method. Indeed, I doubt it was intended to convince anyone. Instead, it seems like an attempt to shape his legacy.

Interestingly, the current issue of the Yale Law Journal features 3 reviews of Breyer's book that I've yet to read--by Richard Posner, Cass Sunstein, and Paul Gerwirtz.

Thoughts?

Delicious Irony

2006-05-11T15:18:00.000-04:00

I've been meaning to post this comment for a while, but exams come around, and other things become more important.

In tort law, there's a concept called respondeat superior. It literally means "let the master answer," and it's a doctrine that, stripped of all its nuance, holds employers liable when their employees negligently injure somebody on the job. So when you get run over by a UPS truck, you can recover from UPS instead of Bob, the UPS driver who actually ran you down.

Respondeat superior seems like a very progressive doctrine for 2 reasons. First, it increases the chances that the victim of negligence will be able to recover (employers are more likely to have pockets deep enough to pay the award). And second, employers who enjoy the benefits of risky behavior (after all, if Bob drives 95 mph instead of 55 mph he can deliver more packages for UPS each day) must internalize the costs of that behavior. (You might argue that respondeat superior isn't so wonderful when you consider that, as a result of the doctrine, employers pay workers less and hire fewer of them. A fair point that raises an empirical question.)

The delicious irony is the historical development of respondeat superior. It first arose in Roman law because slaves were not considered people. As a result, if a slave injured you, you couldn't sue the slave in a Roman court because only legal persons can be parties to a suit. So Roman law let you sue the slave's master. A legal doctrine that began as a paradigm of inequity has evolved into a wonderfully progressive doctrine!

Rawls vs. Sandel

2006-05-08T12:08:00.000-04:00

The argument in my last post is called the communitarian critique of liberalism. It's associated with names like Michael Sandel, Michael Walzer, and Alasdair MacIntyre.

But some intellectual heavyweights disagree. Guys like John Rawls, Ronald Dworkin, and Thomas Nagel think that the kind of morality that governs social and political institutions is different from the kind of morality that governs personal life. Indeed, those 2 kinds of moralities don't even derive from a common principle. (I think the difference is a result of the powerful collective agency of the state.)

On this argument, Rawls et al. believe that one can defend a liberalism in which women have the right to choose without engaging with the Christian belief that human life begins at conception.

I don't fully understand the Rawls position. Can someone explain it to me?

Another Listserve Discussion

2006-05-07T18:53:00.000-04:00

The Law Students for Choice (LSFC) listserve is having a heated yet fascinating discussion on contraception and abortion. Actually, I am the cause of the friction. I am trying to make them realize that the root of their (and all) pro-choice arguments rests on a definition of when a human life begins.

Those who admitted that the definition is a crucial part of their argument responded in the following fashion:

"The Christian Right can define the beginning of human life however they want. But they can't impose that definition on me."

I think (argue with me if you think otherwise) that this response (1) is disingenuous; (2) is enormously common; and (3) represents the central problem with liberalism. Why?

Liberalism says to citizens: The state won't provide you with values. Go find them yourself in religion, philosophy, whatever. So, in the context of the LSFC discussion, Christians go to the Bible to find their values. Their interpretation of the Bible tells them that life begins at conception.

But then, when citizens go to religion and find a set of values, the state says: Whoa! Don't bring those into the public sphere! Don't legislate your definition of the beginning of life on other citizens!

"But wait!" say the conservative Christians. "You told me to get my values from elsewhere. Now you're telling me I can't act on the moral implications of those values! That's disingenuous!"

We grow up hearing cliches like "It's a free country." But we don't realize that liberalism is not value-free.

That last statement is not a condemnation of liberalism, but it is a call for a more intellectually honest defense of liberalism. Instead of saying "Liberalism is good because it is value-neutral," we should be saying "Liberalism is good because ________." (What you put in that blank will probably be some sort of defense of autonomy.)

Thoughts?
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GC: Update: Thomas Nagel disagrees with me. Not a good thing. On the plus side, Michael Sandel agrees with me.

Guns and Con Law

2006-05-03T20:28:00.000-04:00

No, this post isn't about the Second Amendment.

I'm reviewing for my Constitutional Law exam on Friday, and I'm noticing the repeated emphasis the course placed on political legitimacy. If you see what the Supreme Court is doing as legitimate, you may hate its decisions, but you abide by them because you see the process as fair. But if you see it as illegitimate, you get mad. And if it's illegitimate enough, you grab your guns. See Iraq. Law is a game played in the shadow of the state of nature.

So why isn't there more legal scholarship on the current level of the judiciary's legitimacy? (Maybe there is; I didn't do any research to see.) Justices occasionally discuss it in a case, but usually as a reason to avoid protecting an individual right (Casey is an exception). If they are serious about using the Court's legitimacy as a reason to avoid taking the law in a progressive direction, shouldn't they want some evidence for the likelihood that people will grab their guns if they decided the case the other way? We seem to be pretty far away from that point; can you imagine a president telling the Court in response to a politically unpopular decision: "The Supreme Court has made its decision; now let them enforce it" (President Andrew Jackson's apocryphal statement)?

Richard Posner makes a related point in the book I'm currently reading, Law, Pragmatism, and Democracy. He argues strongly for a pragmatic approach to the judicial function; at times, that approach might adopt a strongly formalist tone to lend legitimacy to a decision. Legal formalism makes it sound as if the law compelled a single "correct" result in every case, thus mitigating the judge's responsibility for an unpopular decision. Formalism is what Clarence Thomas is doing, for example, when he says that the anti-sodomy laws in Lawrence v. Texas seem "uncommonly silly" to him, but the Constitution obligates him to uphold them. A legal realist would say that he is being disingenuous; if he really disliked those laws, he would strike them down.

(For those of you who've read Lon Fuller's The Case of the Speluncean Explorers: Handy's opinion sounds strongly in legal realism. I love his opinion, but it becomes a good deal more problematic when he reaches an unpopular result. Then an important consideration becomes the Court's legitimacy.)

So why don't legal scholars talk about the Court's legitimacy more? (You might say that public discussion of legitimacy undermines that legitimacy by turning the Court into a blatantly political organ. Fair point. But really, how many people read law review articles?)

Don't Forget to Tip Your Waitress

2006-05-01T20:45:00.000-04:00

Amartya Sen told a great joke on Sunday night:

Two Italians are talking politics. One says to the other: "I can't be a Fascist; I have to be a socialist. My father was a socialist, and my grandfather was a socialist, and my great-grandfather was a socialist, and so was his father."

The second says to the first: "That logic is silly. What if your father was a murderer, and your grandfather was a murderer, and your great-grandfather was a murderer, and his father, too?"

The first responds: "Well, then I would be have to be a Fascist."

Viva Evo

2006-05-01T17:54:00.000-04:00

In the past, nationalization of an industry like natural gas in a country like Bolivia was a recipe for disaster. Skittish foreign investors, worried that their assets are next on the nationalization list, high-tail it out of the country as fast as they can in an economy-wrecking phenomenon called capital flight. Leaders in these countries were between a rock and a hard place. If you don't nationalize, your country thinks you are a sellout to the Americans. If you do nationalize, capital flight occurs, and your country blames you for the widespread poverty and lack of jobs. See, e.g., the recent documentary Our Brand Is Crisis.

Are those days over?

Maybe. With Chavez in Venezuela, President Evo Morales's decision to nationalize Bolivia's prosperous natural gas industry (they have the most gas in South America) might work. Capital flight will probably occur (mostly from places like Brazil), but Chavez, another left-leaning leader currently enjoying enormous profits from high worldwide oil prices, is very sympathetic to Morales and will probably help Bolivia out.

This situation is a bit like the Cold War, only we're so preoccupied with the Middle East that we hardly notice it's happening; thus, we're unlikely to put the same pressure on countries considering nationalization of major industries. As a result, countries are a good deal freer to make a choice to take their economies left-ward without serious consequences.

Thoughts/predictions?

2 Argumentative Indians

2006-04-30T20:29:00.000-04:00

In an arbitrary and capricious abuse of discretion on the night before my first exam, I decided to go to the NY Public Library to see Salman Rushdie in conversation with Amartya Sen on the topic of Sen's new book, Identity and Violence.

First, the 2 main pieces of the book's argument:

1. Identity is plural. We are a fractured bag of selves. I am an Ohioan, a law student, an economist, a male, a feminist, an American, a friend, a heterosexual, a supporter of gay rights, a human, a son, a brother, etc. Cf. neoclassical econ's homo economicus.

2. Individuals must make choices about the identity groups with which to align themselves.

Sen's conclusion is that singularity (the choice to see one's self as situated in only 1 restrictive identity group) is an (1) epistemic [i.e. descriptively inaccurate] and (2) ethical [i.e. it blinds us to commonalities we have with others and thus obstructs cosmopolitanism] failure.

Rushdie pushed Sen on a few points in the argument:

Rushdie: How much of an individual's choice among identity groups is "free" choice and how much is determined by aleatory factors?

Sen: The ability to think reflectively about ourselves is generic to all human beings. Cf. Chomsky's universal grammar. [WHERE is the evidence for this claim?]

R: Aren't you doing some wishful thinking? In Clash of Civilizations, Sam Huntington argues convincingly that singularity is on the rise globally. Isn't his thesis more descriptively accurate than yours?

S: People increasingly believe in Huntington's singularity, but that belief doesn't make the underlying description of singularity any more accurate.

R: Aren't you whitewashing the failures of Muslims and letting Islam off the hook too easily? (I know, can you believe Salman Rushdie would say something like that?!)

S: Yes, Islamic terrorism is bad, but the history of Muslim peoples has many positive aspects.

Sen mentioned in passing that a major flaw in most lines of communitarian thought is their insistence on seeing individuals as singular, situated in only 1 restrictive identity group. Anyone more familiar with communitarianism want to respond?

Thoughts? The obvious implication of Sen's argument is that if we see ourselves as plural, we'll identify (and empathize) with seemingly dissimilar people. Are there other less obvious implications of his argument?

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Update: [GC] Kenji Yoshino, a YLS professor who will be teaching constitutional law at NYU in the fall, has a review of Sen's book in the May 14 issue of The New York Times.

Tu Quoque

2006-04-29T21:08:00.000-04:00

To what extent is a tu quoque argument a fallacy?

Let me explain.

Clearly in the narrow sense of a fallacy it is. An individual who responds to an accusation of immoral behavior by saying: "Well, you aren't so saintly yourself!" is not really responding to the original accusation. And her motive is probably less-than-kosher; she probably wants to distract attention from her moral turpitude.

But can we, with a few intermediate steps, turn this response into a coherent argument? For example, suppose the respondent continues: "Your unsaintliness is evidence of a social (or group) norm that permits such behavior. Thus, my behavior is congruent with the norms of our community."

One of my college professors had a useful distinction for this discussion. He used the term moral to refer to the extent to which a given behavior was consistent with the prevailing community norms. He used ethical to refer to the extent to which those community norms were good ones. (He claims this distinction is ubiquitous. I don't believe him.)

So we might be able to see the tu quoque response as logically coherent if we are content to stop our analysis at the moral character of a given behavior. To get to the ethical aspect of that behavior, however, the argument has to take one more (tenuous) leap: "And our community's norms are good ones."

But if you are a pragmatist, postmodernist, or moral relativist, you are probably quite content to stop before that last leap. So you might see tu quoque as a valid (though not necessarily desirable) form of argument.

Of course, there's a critical sample-size problem with using 2 individuals' behavior as evidence of a group norm. But it works in relationship fights!

Thoughts?

Public Staplers

2006-04-28T20:26:00.000-04:00

Is there any better example of the tragedy of the commons than staplers in public places?

People must be thinking: "Hmmm, this seems like an awful lot of pages to staple together. I wouldn't try it with my stapler. But if the stapler jams, somebody else has to deal with it--not me."

Normally, I'd blame the structure of incentives in a case like this one. But library staplers seem ill-suited for well-defined property rights (high transaction costs). So I blame the moral savagery of my fellow law students. Am I right?

The Marketplace of Ideas

2006-04-28T15:31:00.000-04:00

Last week the Federalist Society had a fascinating discussion on its listserv about the 9th Circuit's decision to permit a public school to prohibit a student from wearing an anti-gay t-shirt to school. Soon, the discussion turned to the "free market of ideas" issue. A classmate and I were arguing that market logic makes a number of critical and often questionable assumptions (about market structure, rationality, etc.). The rest of the group, predictably, either defended those assumptions or continued to assert their validity ipse dixit.

Then, one of the pro-market guys sent a post that said (paraphrase): "Well, either you have faith in the market of ideas or you don't."

I never responded to his post, but his response flabbergasts me. We were not having a deep disagreement between, for example, the relative epistemological merits of faith and reason--a disagreement no amount of evidence could resolve. On the contrary, my classmate and I were playing ball in the Federalist arena! We're saying: Okay, we accept your position that the most important values in this situation are reaching the "best" views (In other words, we weren't arguing for against the free market of ideas because we were concerned about trammeling the feelings of those with minority viewpoints.). But even under your set of value preferences, might the free market of ideas have structural flaws that prevent it from yielding the "best" ideas?

In other words, invoking "faith" as a trump card seems ridiculously disingenuous because evidence (in whatever form) seems so well-suited to be our arbiter.

Thoughts?

Law, Literature, and Justice Scalia

2006-04-28T00:16:00.000-04:00

I wonder whether other law students experience what I've experienced this year. Progressive students entering law school tend to have a preconceived notion of Justice Scalia: a hateful, religious, pro-business, right-wing nut-job with horns and a pitchfork. But, as I described it to my friend Kevin (and he agrees),

[r]eading Scalia's opinions for myself has changed the way I feel about him. I still disagree with him across the board, and I'm enormously distrustful of anyone who sees the world in terms as simple as he does, but when I see the words "Scalia, J., dissenting" on the page, my face lights up. Don't you wish Souter or Breyer or Ginsburg could write like he does?

I feel the same way about Oliver Wendell Holmes ("The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics"; "Eloquence may set fire to reason"; even "Three generations of imbeciles is enough.") and Robert Jackson, too ("Compulsory unification of opinion achieves only the unanimity of the graveyard"; "Authority here is to be controlled by public opinion, not public opinion by authority."): their prose goes a long way in winning me over to their jurisprudential outlooks.

Any thoughts on this observation? Is it accurate for others? Should it be accurate? [To those of you who shout a resounding "No": What world do you live in?] What effect does Scalia's adroitness with the pen (or, more likely, the word processor) have on the Court's legitimacy? He does, after all, employ his writing skills for evil (i.e. vigorously attacking other Justices' opinions) as well as for good.

The current liberal (and other conservative) Justices are, on the whole, abysmal writers, especially for such bright people. Any ideas why? Roberts may be the exception, but it's a bit early to tell.

7th Circuit Judge (and superb writer himself: "Where powerful moral intuitions or overwhelming public opinion point, notions of fairness, equality, liberty, justice, and so forth, being infinitely malleable, and conclusional rather than analytic, follow.") Richard Posner has a book on this subject: Law and Literature. I believe Holmes and Cardozo are his paradigms. Posner's book is on my summer reading list; stay tuned for feedback.

Metaphors in International Relations

2006-04-27T15:19:00.000-04:00

On Monday evening, I heard NRF speak about international relations among Iraq, Iran, Israel, and the U.S. He, like most scholars, talks about nations as if they have a coherent, unified set of interests ("Iran wants to develop nuclear weapons."). In other words, he personifies nations. See Lakoff & Johnson's book with a catchy yet solecistic title, Metaphors We Live By; see also Lakoff's more recent and less scholarly Don't Think of An Elephant!

Clearly this move simplifies discussion, but what do we lose in exchange for this simplification? Is personification the best way to talk about international relations? What are the alternatives?

On a related note, I recently finished Allan Bloom's The Closing of the American Mind. He points out that economists have trouble analyzing the field of international relations because that field lacks the (assumed) exogenous political and institutional structure through which economists are accustomed to analyzing situations. In other words, in the market, players resolve conflicts through the price mechanism. But in international relations, players are in a quasi state of nature and hence have many more conflict-resolution mechanisms. Is Bloom right?

Thoughts?

The Market for Blood

2006-04-27T14:41:00.000-04:00

On my way home from the library, I passed a Red Cross sign soliciting blood donations in exchange for movie tickets. In the past, I've seen offers of pizza and cookies for donations, but never cash. Why not? Congress banned the sale of organs (see National Organ Transplant Act of 1984), but blood is not an organ under conventional medical taxonomy. And sperm banks regularly pay their donors for specimens.

Some ideas:

Maybe my description of the law or facts is wrong. Maybe Congress has banned the sale of blood, or maybe blood donation agencies do in fact pay cash for donations.
The Red Cross believes that offering cash for blood will "commoditize" the donation experience, diluting the altruistic motives of donors and leading to less blood supplied.
The blood business is not a profitable one. Collecting, testing, and storing blood is, after all, expensive. The Red Cross, a non-profit organization, stays in the market notwithstanding its losses for nonmarket reasons. On this view, the pizza and movie tickets might be donations from altruistic businesses, not the Red Cross's attemt to compensate donors. (The problem with this view is that patient demand for blood is probably enormously inelastic, so if the Red Cross has any market power at all, it can set a high selling price to extract higher profits.)
The skeptic in me suspects that the structure of the blood market is imperfect, characterized by an economy of scale. As a result, the Red Cross, an oligopsonist, is a price setter; it sets its buying price at 1 movie ticket. Competitors are few and far-between.
Ultra-cynical view: The Red Cross doesn't want to deal with the homeless. Perhaps the Red Cross believes the homeless are more likely to disrupt their donation centers or are likely to drive away non-homeless donors. Movie tickets are less likely to attract the homeless than cash (plausible assumption?).

Thoughts?