Please Make Room for the Stateless Superrich

Frank Pasquale

A recent panel at the Milken Institute decried a grave injustice. Jeff Greene, a billionaire real estate investor, noted that a single mother who weighed “over 300 lbs” received welfare of about $600 a month. “She could barely take care of herself, much less her kids,” lamented Greene. The redoubtable Niall Ferguson swiftly summed up the problem:

Why, he wondered, was Greene letting this lady off the hook? Why doesn’t she get up off her fat lazy butt and get a job?!, he demanded, with his Scottish brogue in full Braveheart mode. “Taking from the successful and giving from the unsuccessful.”. . . Loud applause ensued from the Wall Street-friendly crowd, most of whom paid several thousand dollars for a conference ticket.

Contrast the target of Ferguson's wrath with the "stateless superrich," whose "second, third, or fourth homes" are often vacant as they "spend a few months in St Moritz, before moving to their trophy mansion in London, and then on to their luxury villa in Sardinia for the summer months." Some worry that "their children will become indolent spongers, who will blow their inheritance 'recklessly and lose their ambition or even their health.'" But they tend to employ "legions of charge-by-the-hour gurus" who can help make crucial decisions about, say, "how to divvy-up seven properties between three" heirs. That is job creation par excellence.*
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Posted 3:49 PM by Frank Pasquale [link]

The Ninth Circuit’s Dismissal in Padilla: The Accountability Gap Widens

Jonathan Hafetz

The Ninth Circuit today reversed the district court’s ruling in Padilla v. Yoo, ordering that former “enemy combatant” Jose Padilla’s civil damages suit against John Yoo be dismissed on qualified immunity grounds. The dismissal represents the latest refusal of a federal court to provide a remedy for abuses committed during the war on terrorism.

First, the panel ruled that because it was not clearly established that an enemy combatant possessed the same rights as a convicted prisoner, Yoo cannot be held liable for the systematic program of abusive interrogation to which Padilla was subjected--a program designed to render Padilla helpless through interrogation under threat of torture, stress positions, sleep and sensory deprivation, extreme isolation, and incommunicado detention for almost two years.

Second, the panel ruled that, even though the unconstitutionality of torturing a U.S. citizen was “beyond debate” during the period in question (from 2001-2003), it was not clearly established that the treatment Padilla was subject to amounted to torture.Both rulings are suspect. On the first point, the thrust of Padilla’s complaint is that the government designated Padilla an enemy combatant precisely to avoid the constitutional protections he would have been afforded as a criminal defendant. But, even putting this motive aside, the Convention against Torture (CAT) clearly prohibited cruel, inhuman, and degrading treatment (CIDT) at the time of Padilla’s interrogations. In ratifying CAT, the United States equated CIDT with the “shocks the conscience” standard under the Due Process Clause of the Fifth Amendment. Padilla, a U.S. citizen held in the United States, was indisputably protected by the Fifth Amendment. Yet, the Ninth Circuit failed to recognize how Padilla’s harsh treatment--even if it did not cross the line into torture--could constitute cruel, inhuman, or degrading treatment that was clearly prohibited at the time. (See Steve Vladeck’s discussion of this issue here).On the second point, the Ninth Circuit’s ruling suffers from a troubling circularity.

The “debate” over torture, such as it was at the time, was largely manufactured by John Yoo and others precisely to engage in conduct that the law prohibited. The court thus takes what might be described as part of a conspiracy to commit torture as the reason to insulate those responsible from liability. The appeals court, at least, observes that recent judicial decisions suggest that the treatment to which Padilla was subject does constitute torture (One of the cases it cites—Vance v. Rumsfeld—is being reheard by the Seventh Circuit en banc.).

But the opinion also fails to make clear that protection from abusive interrogation methods does not depend on whether a terrorism suspect is classified as an enemy combatant (or an unprivileged enemy belligerent in current nomenclature) or a civilian criminal defendant. The panel states: “Even after Hamdi [v. Rumsfeld], it remains murky whether an enemy combatant detainee may be subjected to conditions of confinement and methods of interrogation that would be unconstitutional if applied in the ordinary prison and criminal settings.” The court fails to acknowledge Hamdan v. Rumsfeld, the Supreme Court decision holding that, however the conflict with al Qaeda is defined, detainees are covered by protections against mistreatment contained in Common Article 3 of the Geneva Conventions— protections that are in some ways are more robust than those provided by the Constitution.

If there is silver lining, it is that in disposing of the case on qualified immunity grounds, the court does not reach the government’s argument that “special factors counseling hesitation” preclude Bivens liability. This argument—adopted by the en banc Second Circuit in Arar v. Ashcfroft (a case involving the rendition of a Canadian citizen to Syria for torture) and the Fourth Circuit in Padilla v. Rumsfeld (Padilla’s suit against different defendants)—is more sweeping. A dismissal on “special factors” grounds would preclude civil liability even if a court believed that the conduct in question clearly constituted torture.
Posted 1:33 AM by Jonathan Hafetz [link]

For the Public Good

Jason Mazzone

New York's Chief Judge has announced that individuals seeking admission to the New York State Bar will be required to demonstrate they have performed 50 hours of pro bono work. The goal is to extend legal services to New Yorkers who cannot afford to pay for lawyers. Chief Judge Lippman estimates that the requirement will generate an impressive half million hours of legal work per year. In formulating regulations for this pro bono requirement, the Chief Judge would do well to think carefully and creatively about what kind of work counts towards the 50 hours. So far, the focus seems to be on traditional and predictable areas of pro bono activity such as domestic violence, employment problems, foreclosures, and issues of criminal law. A better approach would be to set aside assumptions and ask: if we have 500,000 hours of free legal work, what assignment of those hours will maximize the public good? Some uses of the 500,000 hours will produce mostly individual benefits. Other uses will produce larger public benefits. For example, most of the benefits that would come from assigning newbie lawyers to unemployment benefits cases or domestic violence issues will be captured by the individual clients who receive the free services--with little in the way of benefits to the public as a whole. By contrast, time spent counseling a technology start-up company (that cannot afford lawyers) benefits the company but it also also generates jobs for New Yorkers and tax revenues for the state. Likewise, helping a criminal defendant avoid conviction confers a large private benefit on the defendant. But given that virtually all criminal defendants committed the crimes with which they are charged, such an allocation of resources does not obviously benefit the public as a whole. On the other hand, working for a resource-strapped prosecutor's office to get dangerous people of the streets produces a public rather than a private good. Perhaps there will be plenty of hours to go around. Perhaps also some mix of allocations for private benefits and for public benefits is a desirable approach. The point is that in imposing the 50-hour requirement, the Chief Judge should weigh the costs and advantages of these choices because not all are equally for the public good.            
Posted 11:20 AM by Jason Mazzone [link] (16) comments

Broccoli and the Conservative Imagination

Guest Blogger

Jared A. Goldstein

More than anything else, it was the “broccoli argument” that succeeded in shifting the constitutional case against the Affordable Care Act from off-the-wall to mainstream. It’s a very straightforward version of the slippery slope: if the government can make us get health insurance, it could make us do anything; it could make us buy broccoli; it could even make us eat broccoli. Putting aside the merits of the argument, it is worth examining why the broccoli argument is a rhetorical tour de force that so powerfully captures the ideology and anxieties of opponents of Obamacare.
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Posted 6:57 PM by Guest Blogger [link]

Constitutional Identity

Sandy Levinson

I want to bring to your attention a quite remarkable book published in 2010 by my University of Texas colleague Gary Jacobsohn, which I recnetly reread in preparation for a mini-symposium held at the University of Texas Law School in its honor.  Gary is by any reckoning one of the leading comparative constitutionalists in the United States.  He has written important books comparing the United States and Israeli constitutional orders and on the Indian constiutional system.  Partly because of his immersion in the Indian materials--where the Supreme Court has indicated its potential willingness to declare unconstitutional proposed amendments tht would fundamentally change the nature of the constitutional order, Gary has written a book-length examination of the mystery of "constitutional identity," i.e., whether we can in fact discern what might be termed the "essence" of a given constitutional system so that we could say, with regard to any given change, that the amendment represented not, say, a perfection of the existing order, but a genuine transformation.  This question arises also in Germany, which has an "eternity clause" prohibiting any limitation, even by amendment, of the human dignity guaranteed by the post-War constitution,  The concept is not unknown even within American state constituitonalism inasmuch as the California constitution can be amended by initiative and referendum so long as the amendment is not a "revision" of the constitution, in which case it must be propsed by the state legislature. 

As one can imagine, the questions raised can be extremely tricky, especially in constitutional orders, like Ireland's, that profess in some way to be rooted in a specific religious tradtion, in that case, of course, Roman Catholicisism  (And, of course, Israeli debate is dominated by the question of the whether its identity as a "democratic and a Jewish state" creates a potentially fatal tension. 

Perhaps one reason I found the book so rich and consistently interesting is my own interest in amending the United States Constitution.  My own view is that its identity is constituted by the Preamble and Republican Form of Government Clause (and, at the end of the day, by very little else, at least with regard to the original 1787 Constitution devoid of any subsequent amendments).  Thus I view any potential changes, however institutionally radical they might appear, as attempts to create the "more perfect Union" envisioned by the Preamble.  Others, of course, might disagree and believe that, say, a parliamentary system with term-limited judges and the creation of a new Senate that eliminated equal state voting power (assuming, of course, that states were retained), would constitute a "brand-new" Constitution.  (And I'm not even including provisions for direct democracy!)  In any event, I strongly recommend it as a companion to Jack's Living Originalism, which, for some readers at least, will raise similar questions about the extent to which a "living Constitution" is, at the end of the day (or many decades) really the "same Constitution" that one started out with (at least to the same extent that an adult is "the same person" born many years before.
Posted 8:23 PM by Sandy Levinson [link]

One Step Forward, Two Steps Back: A Review of the Amendments to CISPA

Guest Blogger

Anjali Dalal

After a flurry of last minute amendments last week, the House unexpectedly passed CISPA on Thursday evening. A week ago, I described my concerns with the version of the bill that made it out of the House Committee on Intelligence. In the intervening week, there was considerable outcry around the bill led in part by EFF, ACLU, and CDT. And, learning their lesson from SOPA, the House decided to invite civil liberties constituencies to the table so as to avoid having to witness another implosion of a major legislative goal. As a result, a number of amendments were introduced that began to address some of the most egregious parts of the bill, and, in response, some members of the civil liberties community decided to withhold further, vocal opposition. Then, on Thursday evening, it all fell apart. As Josh Smith at the National Journal described, the CISPA that was passed by the House on Thursday didn’t reflect this negotiation:

The Center for Democracy and Technology and the Constitution Project never really dropped objections to the Cyber Intelligence Sharing and Protection Act, but after discussions with the bill’s sponsors, the groups said on April 24 they would not actively oppose the bill and focus on amendments instead. But on April 25, the House Rules Committee shot down 22 of 43 submitted amendments to the bill, known as CISPA. All but one Republican amendments were made in order, while four out of 19 Democratic amendments and four with 10 bipartisan support made the cut. Five amendments were withdrawn.

Unhappy with this outcome, the civil liberties groups are doubling down their efforts for the next stage of this battle -- the Senate.

That’s the quick recap of what happened last week.

This bill still poses serious issues. Here is the version of the bill that reflects all the amendments made. For those who want to compare, this is the original bill without the amendments and these are the eleven amendments that were added on top of it.

I’ll spend the rest of this post providing a summary of the amendments made and provide my thoughts on the problems they create and solve. I’ve ordered them, roughly, by importance.
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Posted 3:00 PM by Guest Blogger [link]

Language Tics in the Law Reviews

Mark Tushnet

Having offered a mild rant about the roadmap paragraphs in law review articles (and see this indirect response), I've been noting other quirks in law review "style." Here are some I've run across in the past couple of weeks.

1. "I want to argue" whatever -- "Well, you may want to argue that, but by golly, I'M NOT GOING TO LET YOU." "Want to" is just a hiccup here.

2. Related: "It could be argued" that -- "Well, yes, it could be argued, but whoever did it would be a nincompoop." I think this is a residue of early law school education, where students, lacking confidence in what they're about to say, use the tentative "you could argue" and the like precisely so that they won't be open to the "you're a nincompoop" response from their Professors Kingsfield.

3. My favorite line in a roadmap paragraph: "The remainder of this Article fleshes out the foregoing argument" -- "so, frankly, there's really no need to read any further, but my tenure committee wouldn't take kindly to a five-page article, so I've padded it with unnecessary words to make it look more substantial than the foregoing few pages might suggest it is."
Posted 9:36 AM by Mark Tushnet [link]

Art and the First Amendment, Redux

Mark Tushnet

Some final thoughts provoked by reflecting on the (modest, to say the least) reception of "Art and the First Amendment" by law reviews. As I've suggested, one "problem" with the article is that it doesn't take a strong normative position. Another, I think, is that its normative dimension is heavily institutional rather than direct, and almost all First Amendment scholarship is directly normative.

Directly normative scholarship identifies and defends value-based interpretations of constitutional terms (I include originalism in this category, but it would take me too far afield to explain why). Institutional normative scholarship asks an institutional question: In light of the obvious reasonable disagreements people have about the specification of an agreed-upon normative principle -- that is, disagreements about how that principle comes to bear on specific problems --, what reasons are there for preferring the author's specification over the legislature's, or, because authors hope that courts will accept their proposed specification, what reasons are there for thinking that courts will do a better job at specifying the principle than legislatures will?

The reasons have to lie in differences in institutional character. I suspect that the preference for directly normative scholarship arises from an unarticulated institutional argument, correct in its setting, but perhaps -- only perhaps -- inappropriately generalized. We all start teaching and learning about the First Amendment with the classic sedition cases, in which the government seeks to penalize speech critical of government policy on the ground that the dissemination of such speech poses a risk of social disorder. Our historical survey teaches us that legislatures, prosecutors, juries, and trial judges do a terrible job of singling out circumstances in which that is even remotely true. So, we conclude, what we need -- and what the Supreme Court supplied in Brandenburg -- is a test that reduces the chance that these decision-makers will fall prey to this pathology, as Vince Blasi labeled it in a classic article (subscription required).

(It's worth pausing to wonder why the Supreme Court itself isn't susceptible to the pathology. One can imagine institutional differences that would immunize the Court, though Holder v. Humanitarian Law Project suggests that the immunity is not perfect.)

The next step is the generalization: Because the Supreme Court is better than other decision-makers in sedition cases, it's better than they are in all First Amendment cases. So, once we have the institutional analysis in place for the sedition cases, we don't have to go through it again for cases involving art, animal crush videos, or anything else. All we have to do is figure out the proper direct normative analysis.

That generalization, I emphasize, might be correct, but one needs an argument, which would go along these lines: We know that courts are better than other institutions in the context of sedition. Legislatures might be better than courts in some other contexts, but courts are not institutionally capable of distinguishing the "legislatures are OK" contexts from the "legislatures suck" contexts, so overall it's better for the courts to do direct normative analysis rather than institutional analysis. Maybe, but I'm skeptical.

All this is quite sketchy, and I may try to flesh it out in some later work. For now, here's a link to my most recent effort along these lines.
Posted 5:58 PM by Mark Tushnet [link]

"Public Standards" at the New York Times

Mark Tushnet

Far off the usual (and not the promised third post on the First Amendment), but it's late at night and I can't sleep and this has been nagging at me, so: Two weeks ago the daily New York Times published a review of Philip Larkin's "Collected Poems." The review "quoted" -- the scare quotes matter here, and watch where the quotation marks come in the "quotation" -- Larkin's famous poem, This Be the Verse. Here's the poem as "quoted" in the Times: Your Mum and Dad, they mess you up/"They may not mean to, but they do/They fill you with the faults they had/And add some extra, just for you."

Notice where the quotation begins? And why there? Because the poem -- by common agreement one of the great short poems in English from the late twentieth century (and some of those qualifiers can probably be stripped out) -- actually begins, "Your Mum and Dad, they fuck you up."

Now, I understand the Times's problem. As the Public Editor put it to me in response to an e-mail, "the Times stylebook says 'we very, very rarely print obscene words like "fuck.'" Of course, "very, very rarely" doesn't mean "never," and one might think that quoting a great poem in which the double meaning of "fuck you up"is one element of its greatness could cross the threshold.

But, OK, maybe not. Still, bowdlerizing -- "paraphras[ing]," as the Public Editor put it (to "capture[] virtually all but the offending word") -- doesn't seem the right solution. Larkin wrote a lot of great poems, a couple of which were also quoted in the review. It would have been better to do no more than name This Be the Verse.

I leave the parodies that flow almost naturally from the idea of "paraphrasing" a poem by changing one word as an exercise for the reader.
Posted 3:27 AM by Mark Tushnet [link]

The Project on War and Security in Law, Culture and Society

Mary L. Dudziak

I'm pleased to announce the launch in Fall 2012 of the Project on War and Security in Law, Culture and Society at Emory Law School, where I will be Director of the project and the (as yet unnamed chair) professor of law.  While I have been thinking about an interdisciplinary law-and-war-related project for some time, I started putting thoughts on paper in a more focused way on this blog and elsewhere in response to reactions to my new book and related commentary.  So I must especially thank Benjamin Wittes, who prompted this post.

There are a few reasons that this project will be at Emory.  Most important is that the law school is at the beginning of a promising era, with the appointment of Robert Schapiro as Dean, which has generated much excitement on campus.  The university as a whole is a terrific fit for this project due to significant interest in war in the Political Science Department, beginning with its Chair, Dan Reiter.  Human rights history scholar and long-time friend Carol Anderson is also at Emory, along with others at the law school and elsewhere on campus who I look forward to collaborating with.  And then there’s the end of cross-country commuting, and other family-related reasons that make Atlanta attractive.  Having a lateral offer is always a good time to pitch a new project, and both deans offered full support for the start-up.  It is a project instead of a center because I think that not every idea needs a center and the bureaucracy that can go with it, so the focus will be on ideas and not infrastructure.  At least for now.

The project’s first event will be a fall lecture by legal historian John Witt, Yale Law School, who will discuss his exciting new book, Lincoln’s Code: The Laws of War in American History (date and details to be determined).  A grad seminar and colloquium series will begin in spring 2013.  I will also create a web presence for the project, and which I’ll post about when that’s up and running.

Here’s the basic idea, from the project proposal:

Many American law schools have developed programs focused on legal issues related to war and national security.  Meanwhile, serious study of the nature of war and security is underway in many other disciplines, including political science, history and anthropology.  Although interdisciplinarity is a central feature of American legal scholarship, programs on law and national security tend to focus intently on law and policy, and do not have interdisciplinary inquiry as a central objective.  This deprives legal study of war and security of broader critical inquiry that is essential to understanding this area.

This Project proceeds from the premise that the study of law and war is necessarily an interdisciplinary inquiry.  Legal scholars often carefully analyze the law, but they take "war" as a given - as a feature of the world that does not require the same close interrogation.  There have been compelling reasons for the narrow focus of other programs, as the changing nature of warfare presents new legal and policy questions.  But a full understanding of the intersection of law and war/security requires a broader canvas.  It is best pursued in an interdisciplinary environment involving scholars and law and graduate students trained in different fields.

This idea paper proposes a workshop series and related courses and programs aimed at an interdisciplinary approach to the study of law and war.  The core of the Project would be a deeply interdisciplinary workshop series, modeled after the Project on the Rhetoric of Inquiry, a brilliant and rigorous seminar directed by economist Deirdre McClosky at the University of Iowa in the 1980s.  Ideally the Project will eventually expand to include post-docs and other components, but this will depend on outside funding.

Cross-posted on War Time.
Posted 2:29 PM by Mary L. Dudziak [link]

Why Do We Lack the Infrastructure that We Need?

Frank Pasquale

(There is an online symposium on Brett Frischmann's book Infrastructure at Concurring Opinions. My contribution appears below.)

Brett Frischmann's book is a summa of infrastructural theory. Its tone and content approach the catechetical, patiently instructing the reader in each dimension and application of his work. It applies classic economic theory of transport networks and environmental resources to information age dilemmas. It thus takes its place among the liberal "big idea" books of today's leading Internet scholars (including Benkler's Wealth of Networks, van Schewick's Internet Architecture and Innovation, Wu's Master Switch, Zittrain's Future of the Internet,and Lessig's Code.) So careful is its drafting, and so myriad its qualifications and nuances, that is likely consistent with 95% of the policies (and perhaps theories) endorsed in those compelling books. And yet the US almost certainly won't make the necessary investments in roads, basic research, and other general-purpose inputs that Frischmann promotes. Why is that?

Lawrence Lessig's career suggests an answer. He presciently "re-marked" on Frischmann's project in a Minnesota Law Review article. But after a decade at the cutting edge of Internet law, Lessig switched direction entirely. He committed himself to cleaning up the Augean stables of influence on Capitol Hill. He knew that even best academic research would have no practical impact in a corrupted political sphere.

Were Lessig to succeed, I have little doubt that the political system would be more open to ideas like Frischmann's. Consider, for instance, the moral imperative and economic good sense of public investment in an era of insufficient aggregate demand and near-record-low interest rates:
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Posted 8:28 AM by Frank Pasquale [link]

LSAC Responds to Balkinization Post

Brian Tamanaha

The Chair of the LSAC Board of Trustees sent out a mass email today with a pointed response to my recent post raising questions about LSAC's priorities. In fairness to LSAC, I will post his response (with a few comments).

It is true that fees for the LSAT are scheduled to go up by about 15% next year and the total cost of the test and admissions reports for an applicant who applies to six schools will be about $450. Considered against the total cost of a legal education, this is a very modest sum – about 0.3% of total law school costs. This percentage has been going down over the past decade and, at the same time, the LSAC has expanded its efforts to enable low-income students to avoid the costs entirely (see below). Compared to other professional graduate tests, the cost of the LSAT is quite low – 66% of the cost of the tests for students planning to attend business or medical school.

My criticisms were that this is a bad time to raise fees and $450 is a lot of money for students. To tell us that this sum is a fraction of the cost of legal education and cheaper than applications to B-school, while true, does not respond to the concerns I raised.

It is also true that the LSAC has a large reserve. Years ago, the Board tried to estimate the number of students who would take the test each year and adjust its price accordingly – lower if we expected lots of students and higher if we expected fewer students. This resulted in large year-to-year swings in our prices (and it turned out to be very difficult to predict how many students would take the test each year). Then, about 20 years ago, we decided to implement a policy of steadier increases which would permit us to build up a reserve when lots of students happened to be applying to law school and to call on that reserve when the numbers went down. (We are an organization with large fixed costs; for example, the cost to produce the test is about the same whether 1,000 or 100,000 students take the test.) Then, for several years (especially in later years up to 2009-2010), many students took the test and we ran surpluses. Now fewer students are taking the test. Next year, we project a deficit in our annual operating budget of about $7.5 million and it looks like we’ll see deficits for several years to come. So we’re now calling on the reserve we’ve prudently built up during the flush years instead of hitting students with huge price spikes.

My criticism was that LSAC, a non-profit organization, is raising fees when it has $170,000,000 on hand in cash and securities, which provides it a huge reserve. At a time of declining demand, rather than raising fees, another way to go is draw down on the reserve and cut expenses. This is the rainy day they have been preparing for.

The operating budget deficit is the product of the many things the LSAC does for law students and law schools. More than half of the deficit last year – $3.4 million of it – was caused by the LSAC’s fee waiver program. To do its part to help law schools become more diversified socioeconomically, the LSAC waived its test and application-processing fees for over 9,000 low-income students last year. When the recession hit, the LSAC also increased its direct subsidies to schools to help them weather the storm; for example, the LSAC began to pay more of the costs for admissions staff to attend candidate forums and the annual professional meeting. Finally, the LSAC provides generous support for a variety of diversity initiatives. For example, it probably provides more support than anyone in legal education for diversity pipeline efforts.

The fee waivers for low income students should be applauded. Nevertheless, the fee increase will be felt by many people who do not qualify for a waiver.

Some bloggers complain that the compensation for certain LSAC employees is too high. Our employees are well-compensated, but they are not excessively compensated, especially in view of the difficulty and technical complexity of their work. The LSAC Board scrutinizes salaries very closely and regularly commissions professional salary surveys to assess the fairness of our compensation structure. What we pay is fair in the market – not too much or too little.

I pointed out that in 2009 the President earned $624,000 (which is nearly $200,000 more than his predecessor earned just two years earlier), and that the officers earned salaries of $375,707, $322,827, etc.--plus supplemental payments ranging from $75,000 to $100,000 in 2008. The LSAC administers a testing and application service that holds a monopoly position. It's not obvious that the handsomely compensated high officers, including their general counsel, are engaged in work of great technical complexity (the current President is a former law school dean).Read more »
Posted 3:55 PM by Brian Tamanaha [link] (17) comments

Zabar’s and the Nixon Court

Ken Kersch

This year’s Midwest Political Science Association Annual Meeting had an unusually rich set of book panels on new work in American constitutional development. I’ll report on these in my next few posts.

Kevin J. McMahon’s new book is Nixon’s Court: His Challenge to Judicial Liberalism and Its Political Consequences (Chicago, 2011). Lynda Dodd chaired the Midwest panel discussion of the book, and McMahon responded to comments made by Terri Peretti, Mark Graber, and me. McMahon framed the book as a challenge to what I take to be the conventional wisdom on the Nixon (Burger) Court, as a largely failed effort to turn the Court sharply to the right. The charge made memorably (in a book title) by Columbia Law School’s Vincent Blasi was that that Court should be characterized as a “counter-revolution that wasn’t.”

The “counter-revolution that wasn’t” label always seemed to me to smuggle a lot of highly dubious assumptions into discussions of the Nixon Court. I’d venture that it probably reflected a lot more the panic that gripped the liberal/lefties of Manhattan’s Upper West Side when Richard Nixon was elected than any realities concerning the likely direction of the Supreme Court. How likely, really, was Nixon to go hell-bent for a conservative constitutional revolution? The most committed constitutional counterrevolutionary in the postwar Republican Party was Ohio Senator Robert Taft – who died prematurely in 1953. Barry Goldwater, of course, assumed the leadership of the Party’s (constitutional) conservative wing, followed (more moderately, it seems) by Ronald Reagan. Nixon was not from that wing of the party, and thus to impute any counter-revolutionary intentions to him involving the transformation of the federal judiciary seems a real stretch. Unlike the conservatives, Nixon’s part of the party accepted the New Deal. They certainly didn’t contemplate a counter-revolution against that. Who were the Republican Presidents who bookended Nixon? Dwight Eisenhower (whose eclectic Supreme Court appointments were Earl Warren, John Marshall Harlan, William Brennan, Charles Whittaker, and Potter Stewart (to be sure, Ike expressed regret for Warren and Brennan – but the others were hardly counter-revolutionaries)) and Gerald Ford (who appointed John Paul Stevens). Nixon’s appointees fit snugly into this stream.

My own ongoing research into conservative constitutional discussion in the public sphere supports my Zabar’s thesis on the “counter-revolution that wasn’t” label: it is pretty clear that contemporaneous conservatives did not view Nixon’s election as portending any sort of “counter-revolution,” either in overturning either key New Deal -- or even Warren Court -- precedents. Conservatives writing in the late 1960s and early 1970s expressed hopes that Nixon’s Supreme Court appointments would halt the trajectory of liberal developments in particular areas of law, and trim back some liberal doctrinal hedges in others. The prediction of an impending counter-revolution was almost all the product of the fevered imaginations of an appalled and panicked liberal/left.

McMahon’s book argues that Nixon was successful in achieving his actual goals for the Supreme Court: holding the line in the Court on the few areas he cared about for electoral reasons (busing, affirmative action, the liberalization of the legal protections of criminal defendants) to win over core parts of the Democratic Party’s white, working-class ethnic (and, often, Catholic) base over to the Republican Coalition. Nixon tried to use Court appointments to advance his so-called Southern strategy, but the effort was hampered (given Nixon’s support for civil rights) by the civil rights positions taken by the most likely conservative southern candidates. Nixon’s efforts to secure southern appointments, moreover, were otherwise hopelessly botched. Nixon did much better on the other front – to the point where McMahon insists we’d be better off calling these new Republican Party recruits “Nixon Democrats” rather than “Reagan Democrats.”

McMahon makes good use of internal administration documents (including the Oval Office tapes) to build an original source case for his claims (much as he did in his prize-winning previous book, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (Chicago, 2003)). It seems from this evidence that Nixon’s calculations were electoral/political all the way down, to a degree that Terri Peretti declared herself disgusted by what she had read in the McMahon book on this, and Mark Graber reminded us of the distinction between “high” and “low” politics, so far as constitutional arguments are concerned, and declared that, by the evidence produced in the McMahon book, Nixon gave low politics a bad name. To suggest that Nixon was committed to anything so principled as a constitutional “counter-revolution” would be to attribute to him lofty calculations that were all but alien to his nature.

Rolling out a chart of the Martin-Quinn scores on the median ideology of Supreme Court Justices from 1953 to the present, Peretti argued that Nixon did indeed succeed in moving the Court pretty far to the right (there was argument on the panel about the accuracy and relevance of these measures, given what it is we were talking about, and what, presumably, we wanted to know). Peretti argued, moreover, that Nixon’s ability to do so was in part a lucky consequence of the large numbers of “distal” Supreme Court vacancies that arose during his term (she uses the work of political scientist Keith Krehbiel (2007), who defines a Supreme Court “vacancy as distal if (a) the president is Republican and the departing justice is at or to the left of the Court median or (b) if the president is Democratic and the departing justice is at or to the right of the Court median.”).

In addition to the above, I thought that McMahon had not fully clarified the degree to which Nixon was pursuing a southern or a northern strategy in his electoral calculations concerning Supreme Court appointments. While McMahon did avail himself of quantitative voting analysis in the book (which made good use of multiple methods), we lacked the hardcore voting quant-oid political scientist (of the kind much in evidence elsewhere in The Palmer House that afternoon) to help us determine whether McMahon had, on this point, proved his case.

I would add that, at this stage of development of theories of American constitutional regimes (the important work was done after Blasi offered his characterization), the labels “revolution” and “counter-revolution” should no longer be used so loosely (and polemically) by constitutional scholars. We are entitled to ask what the regime is that is being referred to, and ask for proof that it is actually being overthrown. Politicians, of course, hurl charges of revolution and counter-revolution all the time (see, e.g., the efforts of Barack Obama to overthrow the Constitution and install socialism). Scholars should be more careful.

Although McMahon’s book is framed in opposition to the “counter-revolution that wasn’t” canard, (thankfully) it transcends it. Saying good-bye to all that, it puts us on track for asking the right questions about Nixon and the Court – and providing some plausible, and interesting, answers.
Posted 9:08 AM by Ken Kersch [link]

For New York City readers

Sandy Levinson

I will be giving a talk at the 92nd St. Y this Thursday, April 26, at 7PM on the topic "Why I Lost My Faith in the Constitution."  Many of you, no doubt, know the basic argument, but if you'd like to hear its latest iteration, including discussion of why Ruth Ginsburg didn't go far enough in cautioning constitutional framers in Egypt and elsewhere to avoid using the U.S. Constitution as a model, then please come!
Posted 6:58 PM by Sandy Levinson [link]

When Is "Unilateral" Executive Authority Not Unilateral?

Marty Lederman

When it's bilateral, of course.

It has become increasingly fashionable in recent months to assert that when it comes to questions of the relative constitutional powers of the political branches, President Obama has substantially abandoned the views he held before taking office and, chastened by the realities of the office, has largely embraced and recapitulated the conduct of his predecessor. The lead story in the New York Times today contributes to that common but flawed "convergence" narrative, by touting an alleged acceleration in President Obama's use of "unilateral" executive powers. ("Unilateral" is the adjective of choice throughout, except that at one point the story refers even more pointedly to "executive aggrandizement.") In so doing, the Times, like many recent commentators enamoured of the "convergence" narrative, has unfortunately conflated executive actions of at least three different kinds (roughly corresponding to the categories in Justice Jackson's famous Steel Seizure Case concurrence): (i) cases where the President acts pursuant to statutory authority; (ii) cases in which the President acts on the basis of asserted constitutional authority but without legislative authorization; and (iii) cases where the President asserts the power to disregard statutory directives, that is, to "flout" Congress.

At least two things are conspicuously absent from the Times story. First, as author Charlie Savage himself acknowledges (citing Rick Pildes), President Obama has not used executive power in the manner made controversial during the Bush Administration--namely, by acting in violation of a statute.

Second, although the focus of the story purports to be about the use of "unilateral" executive power, the article itself includes only one example of the exercise of unilateral, constitutional authority by the current President--namely, his four recess appointments on January 4th. (Savage also discusses at length the President's determination that section 3 of the Defense of Marriage Act violates the Fifth Amendment. Even in that case, however, where the President and Attorney General are not defending a statute in litigation because they concluded that it's unconstitutional, they have continued to enforce it pending judicial resolution of the constitutional question.)

The cases Savage cites are instead overwhelmingly instances in which the Executive has acted pursuant to what it views as delegated statutory authority. (Among the actions cited are: a cut in refinancing fees for federally insured mortgages; "increased efforts to curb greenhouse gas emissions through environmental regulations"; "giving states waivers from federal mandates if they agree to education overhauls"; "refocusing deportation policy in a way that in effect granted relief to some illegal immigrants brought to the country as children"; and "moving up of plans to ease terms on student loans")

And who, exactly, has delegated all of this authority to the Executive? Congress, of course.

The phenomenon Savage describes thus is a simple, and familiar, one: The President has urged Congress to enact new, expanded authorities to better or more comprehensively address a serious problem; but when a recalcitrant legislature refuses to do so, the President falls back to the next best thing--namely, exercising the more circumscribed authorities Congress has already conferred upon him. The White House officials quoted in the story rightly commend the President for not spending his term waiting for a bipartisan moment that just won't come. But what he has done, while Congress fiddles, is simply to use the imperfect authorities conferred upon him by earlier, less stubborn legislatures. That is, indeed, a notable emphasis in the second half of the term, worthy of a story. But it is nothing like the assertion of "unilateral" executive power, let alone the "flouting" of Congress or the adoption of his predecessor's constitutional views. (And to the extent Savage is focused on the President's use of (statutorily authorized) executive orders to accomplish his policy objectives, that's hardly a new phenomenon: The President issued over 100 such orders before the alleged "shift" described in the Times article occurred--18 of them in the first 50 days of his Term alone.)

To be sure, there have been some legal challenges to agencies' interpretations of the scope of their statutory authority, as happens regularly in every administration: Jonathan Adler notes, for instance, that there is a pending challenge in court to certain rules promulgated by the Environmental Protection Agency. But in the event the courts hold that an agency lacks the statutory authority it has asserted, there is no indication the Obama Administration intends to assert constitutional powers to do something that Congress has not authorized (let alone anything Congress has prohibited).

It's also worth pointing out that two of the cases Savage cites are instances in which the Administration declined to exercise authority that it could have asserted under the relevant statutes--when the President reportedly "overruled the Environmental Protection Agency’s proposalto strengthen antismog rules [and] decided not to sign an order banningdiscrimination by federal contractors based on sexual orientation"--perhaps in part in order to avert challenges to the statutory bases for such actions. (UPDATE: Savage also suggests that the student loan initiative was amended when Senator Grassley raised questions about legal authority--if true, another example of sensitivity to congressional authority rather than "flouting.")

Moreover, there's nothing hypocritical about what the Administration has done here. The frame of the Times story is the fact that "[a]s a senator and presidential candidate, [President Obama] had criticized George W. Bush for flouting the role of Congress." Not only doesn't Savage cite any instances of President Obama "flouting the role of Congress," however; he also doesn't cite any assertion of constitutional authority that is inconsistent with anything the President argued as a Senator or as a candidate.

[One finalpoint on so-called "czars": The Timesarticle assets that the President has claimed "a right to bypass . . .Congress’s attempt to prevent him from having White House 'czars' on certainissues." That's not a fair characterization. The provision inquestion, in the 2011 Defense Appropriations Act, prohibits the use of designatedfunds "to pay the salaries and expenses" for four named "positions": Director of the White House Office of Health Reform; Assistant to the Presidentfor Energy and Climate Change; Senior Advisor to the Secretary of the Treasuryassigned to the Presidential Task Force on the Auto Industry and SeniorCounselor for Manufacturing Policy; and White House Director of Urban Affairs. In his signing statement, the President explained that he would construe thisprovision "not to abrogate" his prerogative "to obtain advicethat will assist him in carrying out his constitutional responsibilities,"including from advisers with the White House. That's unremarkable, seeingas how the provision, fairly read, doesn't impose any such limit on the persons from whom thePresident can receive such advice. The President has not asserted any authority to ignore the statutory restriction by using funds to paysalaries or expenses for the named positions.]
Posted 11:37 AM by Marty Lederman [link]

A Review of the Cyber Intelligence Sharing and Protection Act (CISPA)

Guest Blogger

Anjali Dalal

Google’s Wi-Spy incident first caused alarm bells to go off in Washington and raised the ire of privacy activists two years ago -- and it continues to make headlines today. And it’s completely understandable. Google (mistakenly) collected three years of data from unencrypted wireless networks across the country through its camera-equipped Street View cars. The FCC fined them. The FTC scolded them. Connecticut sued them. And now Representative Ed Markey is asking for a hearing on it.

Despite all of this government wide revulsion against private surveillance, Congress is currently discussing a bill that will authorize the corporate surveillance of private communication and information. In fact, the Cyber Intelligence Sharing and Protection Act (“CISPA”) authorizes Google and other Internet and Online Service Providers to gather significantly more private information than the Wi-Spy incident produced. And, as are so many dangerous pieces of legislation these days, it’s being passed under the guise of national security.

There are a number of troublesome parts of the bill. Here are the worst:

Read more »
Posted 9:35 PM by Guest Blogger [link]

What is Going On at Law School Admission Council (LSAC)?

Brian Tamanaha

The LSAC administers the LSAT as well as the applications of students to law school. Anyone who wishes to attend law school--tens of thousands of people every year--must go through LSAC. The monopoly position it holds makes it a reliable money producing machine. From 2005 to 2009, income from test and application fees generated a total of $230,000,000 (By year: $41,500,000; $43,000,000; $43,5000,000; $47,900,000; $53,900,000; and 2010 fees will exceed $55,000,000).

Setting aside 2008 and 2009, when it suffered substantial losses in the market, LSAC's revenues exceed its liabilities by a significant margin every year. That's because it earns much more on fees than it costs to administer the tests and applications. At the end of the 2010 fiscal year it was up by $17,500,000 from its starting balance.

Given this money making capability, it is not surprising that LSAC has assets of $191,000,000--including cash and securities of $170,900,000--which produces millions more in annual investment income.

This is relevant because LSAC President Dan Bernstein just announced that the fee to take the exam is going up by 15 percent. Application fees are going up as well. With these price hikes, an applicant who takes the LSAT and applies to six law schools will pay LSAC about $450. That's no small amount. Read more »
Posted 7:12 PM by Brian Tamanaha [link] (10) comments

Jack Balkin’s Rich Historicism and Diet Originalism

Neil Siegel

I am looking forward to the upcoming conference at Yale Law School on Jack Balkin’s Living Originalism. The paper I will present is entitled Jack Balkin’s Rich Historicism and Diet Originalism: Health Benefits and Risks for the Constitutional System. Here’s a brief description.

In Living Originalism, Balkin reasons from two points of view—the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.”

Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about—or even deep awareness of—the pervasiveness of constitutional change can undermine self-confidence about one’s own constitutional convictions. Such self-confidence underwrites effective advocacy in the present. Historicism teaches that, time and again, many right-thinking people were wrong notwithstanding their certainty that they were right. This knowledge, which encourages consciousness of one’s own consciousness, may cause those of us who suffer from “modernist anxiety” (as opposed to postmodernist detachment) to question why we should be so sure we are right today.

Reasoning from the individual perspective, Balkin provides a persuasive, if imperfect, account of the importance of the constitutional text in the American tradition. But Balkin does not seem to register the potential consequences of turning to “originalism” following decades in which the term has been associated in public debates with a conservative political practice, and when conservatives control the federal judiciary. A progressive declaration in 2012 that “we are all originalists now” would risk lending unintended support to the ongoing fruits of conservative originalism, including an unsettling of the New Deal Settlement, the Second Reconstruction, and more.

Such a development would be troubling not only from the perspective of progressive constitutionalists, but also from the perspective of the constitutional system. Conservative politicians and judges, who may either misunderstand Balkin or wish to repurpose him (as Balkin seeks to repurpose originalism), might use a progressive embrace of Balkin’s very thin version of originalism to throw everyone into an easily caricatured originalist camp. That misappropriation, in turn, might undermine the diversity of constitutional opinion that exists in fact and that secures the legitimacy of the system as a whole.

As for the title of my piece, I call Balkinian originalism “Diet Originalism” because it shares similarities with “Originalism Classic” in terms of outward appearance, but it contains little of the constraint that can weigh down the user.
Posted 3:33 PM by Neil Siegel [link]

Shorter Version of the Bounded, Minimalist Way to Uphold the ACA

Marty Lederman

There have been a bunch of Monday morning quarterbacking columns from law professors recently, suggesting various alternative ways the government supposedly ought to have argued the health-care case (with nary a recognition that perhaps there were good reasons those were roads not taken), or suggesting how the Court should decide it on the basis of very broad legal propositions. This is the one you should read: Written by an esteemed scholar sympathetic to the concerns expressed by Justice Kennedy and others about the possible ramifications of a broad holding ("troubled members of the Court should be applauded for their efforts to search for the limits to any principle advanced to uphold the health care mandate of the Affordable Care Act (ACA), not made the target of strident and caustic criticism"), it summarizes the arguments the government actually made, and explains how they provide a roadmap for a narrow holding in favor of the constitutionality of the law.

For my own, more detailed (some might say soporific) analysis to similar effect, see here.
Posted 8:50 AM by Marty Lederman [link]

What Our Children Now Take for Granted . . .

Marty Lederman

. . . was virtually inconceivable not so very long ago: This post warrants much wider circulation. More details from Adam Liptak here. And the video can be seen here.
Posted 3:37 PM by Marty Lederman [link]