Balkinization
an unanticipated consequence of
Jack M. Balkin
E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mdudziak at law.usc.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone jason.mazzone at brooklaw.edu
Linda McClain lmcclain at bu.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I'm not sure that Sandy's got this locked down. The 17th amendment says that "the executive authority" of the state "shall issue writs of election" to fill vacancies. (Incidentally, that phrasing suggests, contrary to my earlier comment and the widely circulated Amar/Chaftez analysis, that the Senate's role here really is judging an election rather than a return.) Who "the executive authority" is, is -- I would think -- a matter of state law, subject perhaps to some federal constraint on ridiculously arbitrary definitions (akin to the so-called Article II argument in Bush v. Gore). And it doesn't seem to me that a state is required to define "the executive authority" for purposes of the 17th amendment as "the governor" (or even in the same way that it defines "the executive authority" -- if it does -- for other purposes), or that defining "the executive authority" to be "the governor and the secretary of state, for these purposes" is ridiculously arbitrary (or, perhaps more accurately, that the Senate owuld be acting improperly were it to decide that such a definition was not ridiculously arbitrary). Posted
8:22 PM
by Mark Tushnet [link]
(12) comments
The farce continues
Sandy Levinson
According to a story on the Times website, Illinois's Attorney General "said on Wednesday that the secretary of state cannot be compelled by the court to sign the papers, and that it is up to the Senate to resolve the matter in Washington." This is really quite extraordinary, if she's being represented accurately. It seems to suggest that Illinois courts are without power to issue a writ of mandamus to a state official who is, it appears, acting absolutely lawlessly in refusing to act under his clear statutory duty to recognize the unimpeached governor's legal ability, under Illinois law (and the 17th Amendment) to appoint a senator by certifying the instrument of appointment. Lisa Madigan, of course, earlier went to court to ask it to declare the Governor mentally incompetent to serve, so she certainly doesn't shy away from judicial intervention. What, precisely, does she want the Senate to say: that it will waive the requirement of certification if they determine that a state official, in this case the secretary of state, is behaving lawlessly? Or that it will dispense with the certification requirement entirely inasmuch as this appears to add to the requirements set out by the 17th Amendment? If Illinois were a business, one might suggest placing it in receivership. But, hey, most people think we really didn't need a functioning President the past ten weeks, so why should we think that one of our major states needs a functioning state government?
Apropos of dysfunctional state governments, I note that the New York legislature has just met; it is, for the first time since 1964, controlled in both houses by the Democrats, so it will be interesting to see if it is capable, for example, of preparing a budget or otherwise acting like a responsible government. To expect New York to function like a democracy, even under Democratic leadership, is probably too much, however. Federalism would look a lot better if we could find more states that provide models of responsible governance. I'm sure there are some (and I am not being at all sarcastic).
In response to my previous post on judicial appointments, see here, I have received some inquiries about whether I think that President-Elect Obama should renominate some of the pending (and less controversial) Bush 43 judicial nominees, including Peter Keisler. It should come as no surprise that my normative answer is yes because I believe that nominees such as Keisler have been unfairly held by the Senate. (In the interest of full disclosure, I worked with Peter while practicing law at Sidley, Austin, Brown & Wood from 2001-2002 and think quite highly of him.) I would also encourage President-Elect Obama to renominate one of Bush's Fourth Circuit nominees, such as Judge Robert Conrad of the Western District of North Carolina, because of the record number of vacancies on that court. Both Keisler and Conrad have been unanimously deemed "highly qualified" by the ABA Standing Committee on the Federal Judiciary.
Do I think that Obama will renominate any of Bush's judicial nominees? No, though it would be an incredible gesture of bipartisanship, one that Bush himself made when he renominated Roger Gregory, originally a Clinton nominee, to the Fourth Circuit in 2001. As Jonathan Adler points out in this post, however, Obama has not shown bipartisan tendencies with respect to judges as he voted to filibuster the Alito nomination and did not participate in the "Gang of 14."
But far more fundamentally, there is very little political incentive for Obama to renominate any of Bush's judicial nominees. If Roland Burris and Al Franken are seated, Democrats will control 59 of 100 Senate seats, just one short of a filibuster-proof majority. Unless Obama makes some outrageous judicial selections (such as corrupt, biased, or unqualified nominees), I cannot imagine that Republicans will be able to hold together a coalition to filibuster or block any nominees, particularly with moderate senators such as Olympia Snowe, Susan Collins, and Arlen Spector among the ranks of Republicans. (I suspect, in fact, that if any of Obama's judicial nominees fail to come up for a vote in Obama's first two years in office, it will be because one or more Democratic senators oppose the nomination.) If there were ever a situation where it might be prudent to renominate judicial nominees of a prior president, it would be when the Senate is virtually equally divided or even tilted toward the opposition party. Indeed, when President Bush renominated Roger Gregory to the Fourth Circuit and then nominated Clinton district court appointee Barrington Parker to the Second Circuit, the Senate was equally divided between Republican and Democratic senators. In such a case, the hope is that the gesture of bipartisanship by the president will encourage recalcitrant senators of the opposition party to confirm the entire slate of judicial nominees.
But even with an equally divided Senate, Bush's bipartisan strategy was unsuccessful. Of the eleven nominees initially advanced by President Bush including Parker and Gregory, two never received a vote (Terrence Boyle and Miguel Estrada) and another (Priscilla Owen) was confirmed by the Senate about four years after her nomination as a result of the compromise reached by the Gang of 14. Other nominees in that group, such as Jeffrey Sutton and Deborah Cook, also encountered some delay after their nominations were submitted to the Senate. Thus, based on recent history and the reality of the political situation, I cannot imagine that Obama would feel pressure to renominate any of Bush's judicial nominees unless he is trying to curry political favor with a particular set of senators, such as with respect to the North Carolina senators by renominating Judge Conrad. Posted
1:45 PM
by David Stras [link]
(20) comments
Good Economic News for the Holidays: Volatility Is Down
One of the most important but underreported financial indicators is the CBOE’s Volatility Index (^VIX), which measures the market’s expectation of future volatility in stock prices. (The CBOE has written a nice technical white paper describing how it is calculated, here.) Traditionally, the annualized volatility of the S&P 500 has been 20 percent, but last month when I went to give a talk on retirement investment at Columbia, the VIX was standing at an apocalyptic 80 percent. The huge drop in stock prices is bad, but it would be a lot better if the market thought that the major gyrations were mostly in our past.
So the good news is that the volatility index has retreated to 45 percent:
Now, 45 percent is still more than twice what it “should” be. But it’s at least moving in the right direction. When it drops below 30 percent, it will be a strong indication that the market correction is complete and we’re back to business as usual.
A group of “chartists” — and I use that term disparagingly — attach a more mystical meaning to the recent decline, relating it to the “golden ratio” and Fibonacci sequence. For example, an article last week on Reuters trumpeted “US-VIX falls below key Fibonacci retracement level” :
The CBOE Volatility Index .VIX fell more than 10.7 percent to as low as 44.50, below a key 61.8-pct Fibonacci retracement level of its surge from late August to late October. Traders could next eye 42.16, the interim high seen shortly after the Lehman collapse.
Why is 61.8 percent key? It comes from the Fibonacci sequence of numbers — which starts with 0, 1 and then adds the two proceeding terms, so it’s 0, 1, 1, 2, 3, 5, 8, 13, 21, 34, 55, 89, 144, etc. A very cool property of the sequence is that the ratio of any number greater than 5 in the sequence divided by the subsequent number in the sequence comes close to 61.8 percent (the reciprocal of the golden ratio).
Chartists look for FIBs. After a major price movement, technical analysts (i.e., chartists, people who think they can predict future stock price given the curve of its past prices) look for reversals equaling 61.8 percent, 50 percent, 38.2 percent, and 23.6 percent as moments where the price is more likely to change again (or not, if the price is powering through to another FIB). Why are these other percentages FIBs? 38.2 percent = 61.8 percent squared, and 23.6 percent = 61.8 percent cubed. Fifty percent isn’t really related to Fibonacci at all, but chartists think they see it in the data.
The golden ratio may exist in nature and art, but Fibonacci retracement strikes me as nonsense on stilts as applied to finance. I’m not as convinced by the short-term, random-walk hypothesis as I was in the days before programmed trading. But there is no reason in the world why Fibonacci retracement should characterize the pricing of a competitive market for information.
Walter Dellinger has an excellent op-ed in today's Times arguing that the legal case for seating Burris is substantially stronger than that against him. (I, of course, agree.) Moreover, Sen. Diane Feinstein, the outgoing chair of the Senate Rules Committee, has publicly endorsed seating Burris. Apparently, the task now is to find a way to save Harry Reid's face, certainly a high priority given the state of our current political situation. (I suppose it's too much to expect that the Senate Majority Leader might actually be from a state that is more typical of those in which a majority of Americans live.) Posted
10:35 AM
by Sandy Levinson [link]
(10) comments
Tuesday, January 06, 2009
War, Time, and Law
Mary L. Dudziak
This post is part of a project that seeks to unpack the concept of "wartime," and to illuminate the impact of assumptions about war’s temporality on our thinking about law and war. I began this thread last summer. Here are some additional thoughts about war, time, and law.
"Wartime" is important to American law, but as with other ways of categorizing time, we don’t tend to inquire about it. Wartime is treated as if it were a natural feature of our world. The impact of this way of categorizing time on our thinking goes unexamined.
In scholarship on law and war, time is seen as linear and episodic. There are two different kinds of time: wartime and peacetime. Historical progression consists of moving from one kind of time to another (from wartime to peacetime to wartime, etc.). Law is thought to vary depending on what time it is. The relationship between citizen and state, the scope of rights, the extent of government power depend on whether it is wartime or peacetime.
The idea that time is linear is often thought to be a natural and inevitable feature of time. Anthropologist Carol Greenhouse suggests that scholars tend to think of non-linear time as embedded in other cultures. Forms of time that are thought to flow from particular cultural contexts are often referred to as "social time." Social time is thought to be culturally constructed, as compared with linear time that is thought to exist in nature.
But even the linear time we think of as "natural" time has a history, and is understood within a cultural context. Linear time is also social time, Greenhouse argues. "The idea of time that has dominated public life in the West since the thirteenth century...came to Europe with Christianity," she writes. It included two ideas that "had long roots in Jewish and...Christian tradition: first, the origin of time in creation and, second, the end of time in a day of judgment. The linearity of time derives from the geometric connection between these two end points." Modern, secular understandings of time are often hazy about the nature of origins and endpoint, but retain this linearity. Once time is thought of as a progression from one point to another, other assumptions follow. "To speak of ‘linear time’ is to refer to the image of time as an irreversible progression of moments, yielding ordinal conceptions of past, present, and future as well as duration."
Emile Durkheim noted the difficulty in seeing the cultural nature of time. "We cannot conceive of time," he wrote, "except on condition of distinguishing its different moments." If we "try to represent what the notion of time would be without the processes by which we divide it, measure it or express it with objective signs, a time which is not a succession of years, months, weeks, days and hours! This is something nearly unthinkable." Yet, for Durkheim, Greenhouse explains, these "categories of thought are born in social, or collective, experience."
If linear time, like cyclical time, is social time, it does not follow that particular constructions of time have an absolute hold in discreet cultures. Instead, Greenhouse argues, competing conceptions of time overlap and compete for ascendancy. Initially, in the West, a linear understanding of time competed with indigenous European ideas that time was a pendulum, moving between binary oppositions (day/night, summer/winter). "If linear time dominates public life in the West, then, it is because its primary efficacy is in the construction and management of dominant social institutions, not because it is the only ‘kind’ of time that is culturally available. The meanings of linear time are inseparable from its cultural history of use." The expansion of "clock time" and the introduction of the telegraph have been thought to introduce simultaneity. Benedict Anderson argues that once time was viewed as uniform and governed by the clock, time helped knit together a common sense of national identity. As Thomas M. Allen describes Anderson’s intervention, clock time "created a shared ‘simultaneity’ of experience that linked individuals together in an ‘imagined community’ moving together through time." The clock’s rationality drove other conceptions of time.
A newer literature on the history of time, however, comports with Greenhouse’s argument that the experience of time is heterogeneous. In new scholarship, as Allen describes it, social historians "have demonstrated empirically that changes in time consciousness cannot be explained as a story of progress from a more primitive to a more rational organization of time." This literature shows that
the homogeneity of time that supposedly results from the centrality of such instruments as clocks, watches, and calendars to modern life is only possible if technologies produce time by themselves....Once we begin to ask what people did with technologies of time, and why they wanted such technologies, the homogeneity of modern national time begins to shatter into myriad fragments of heterogeneous, local, and transient temporal cultures.
Heterogeneous temporalities do not drive people apart, Allen argues, but instead "are themselves the threads out of which the fabric of national belonging has long been woven."
The heterogeneity of time helps us to see that, in Allen’s words, time is not "a transhistorical phenomenon, an aspect of nature or product of technology existing outside of human society," but is "an historical artifact produced by human beings acting within specific historical circumstances." Allen argues for new scholarship on the relationship between time and the nation that "attend[s] to the recursive and dynamic interactions between these two terms."
Similarly, the relationship between war and time is complex. A more satisfactory understanding of war, time, and law must bring a cultural history of time into the history of law and war. This is the aim of my new project.
My son took the SSAT exam this past Saturday. And while I was sitting in the Choate athletic facility waiting for him to finish, I remembered that Avinash Dixit and Barry Nalebuff’s new book, The Art of Strategy, has a great example concerning standardized testing. Game theory is so powerful it can help you figure out the correct answer without even knowing what the question is.
Consider the following question for the GMAT (the test given to MBA applicants). Unfortunately, issues of copyright clearance have prevented us from reproducing the question, but that shouldn’t stop us.
Which of the following is the correct answer?
a) 4π sq. inches
b) 8π sq. inches
c) 16 sq. inches
d) 16π sq. inches
e) 32π sq. inches
O.K., we recognize that you’re at a bit of a disadvantage not having the question. Still, we think that by putting on your game-theory hat you can still figure it out.
Before reading their analysis, take a shot at trying to reason your way to the correct answer.
Here’s what they said:
The odd answer in the series is c. Since it is so different from the other answers, it is probably not right. The fact that the units are in square inches suggests an answer that has a perfect square in it, such as 4π or 16π.
This is a fine start and demonstrates good test-taking skills, but we haven’t really started to use game theory. Think of the game being played by the person writing the question. What is that person’s objective?
He or she wants people who understand the problem to get the answer right and those who don’t to get it wrong. Thus wrong answers have to be chosen carefully so as to be appealing to folks who don’t quite know the answer. For example, in response to the question: “How many feet are in a mile?” an answer of “Giraffe,” or even 16π, is unlikely to attract any takers.
Turning this around, imagine that 16 square inches really is the right answer. What kind of question might have 16 square inches as the answer but would lead someone to think 32π is right? Not many. People don’t often go around adding π to answers for the fun of it. “Did you see my new car — it gets 10π miles to the gallon.” We think not. Hence we can truly rule out 16 as being the correct solution.
Let’s now turn to the two perfect squares, 4π and 16π. Assume for a moment that 16π square inches is the correct solution. The problem might have been: “What is the area of a circle with a radius of 4?” The correct formula for the area of a circle is πr2. However, the person who didn’t quite remember the formula might have mixed it up with the formula for the circumference of a circle, 2πr. (Yes, we know that the circumference is in inches, not square inches, but the person making this mistake would be unlikely to recognize this issue.)
Note that if r = 4, then 2πr is 8π, and that would lead the person to the wrong answer of b. The person could also mix and match and use the formula 2πr2, and hence believe that 32π or e was the right answer. The person could leave off the π and come up with 16 or c, or the person could forget to square the radius and simply use πr as the area, leading to 4π or a. In summary, if 16π is the correct answer, then we can tell a plausible story about how each of the other answers might be chosen. They are all good wrong answers for the test maker.
What if 4π is the correct solution (so that r = 2)? Think now about the most common mistake: mixing up circumference with area. If the student used the wrong formula, 2πr, he or she would still get 4π, albeit with incorrect units. There is nothing worse, from a test maker’s perspective, than allowing the person to get the right answer for the wrong reason. Hence 4π would be a terrible right answer, as it would allow too many people who didn’t know what they were doing to get full credit.
At this point, we are done. We are confident that the right answer is 16π. And we are right. By thinking about the objective of the person writing the test, we can suss out the right answer, often without even seeing the question.
Now, we don’t recommend that you go about taking the GMAT and other tests without bothering to even look at the questions. We appreciate that if you are smart enough to go through this logic, you most likely know the formula for the area of a circle. But you never know. There will be cases where you don’t know the meaning of one of the answers or the material for the question wasn’t covered in your course. In those cases, thinking about the testing game may lead you to the right answer.
If you want a fun way to learn a ton of useful game theory, this is the book for you. How good is it? Steve Levitt has a blurb on the book saying it’s so good, he read it twice.
The farce currently underway in Springfield and DC can be traced, among other things, to the fact that Illinois, like most states, has rejected the "unitary executive." That is, various executive officials are elected independently of the governor and are in no way subject to control by the governor. Whatever one thinks of the "unitary executive" at the national level, no reasonable person can argue that it reflects some "American" approach to government, since it is the US government that is in fact the outlier. If Illinois did have a unitary executive, then presumably the governor could simply fire an insubordinate secretary of state who refused to sign the letter of appointment. (Or is the argument that the secretary could refuse to leave on the grounds that the unimpeached governor is no longer the "real governor" who has the authority to hire and fire members of his administration?)
In any event, a story in tomorrow's times on the Senate's refusal to accept Burris's creditials sets out the issue very clearly:
After reviewing the appointment letter presented by a representative of Gov. Rod R. Blagojevich, Nancy Erickson, the secretary of the Senate, found that the paperwork did not comply with Rule II of the Senate’s standing rules, which requires signatures of both the governor and the secretary of state.
The Illinois secretary of state, Jesse White, has refused to sign, saying the appointment is invalid because of the federal corruption investigation surrounding the governor and what prosecutors describe as his efforts to sell the Senate seat....
Given my own "constitutional protestantism," I rather like the fact that every public official is suddenly asserting the ability to decide on his or her own what are in fact quite interesting and complicated constitutional issues. That being said, I still don't understand how one of the Senate's standing rules can in effect give someone other than the governor the de facto ability to veto a gubernatorial appointment that meets all relevant state law requirements, in a context where the state official who refuses to co-sign appears to be violating the face of the relevant Illinois statute that imposes a duty to sign. I must say that I wish Sen. Reid had stood up to George W. Bush with the same vigor that he is standing up to the feckless Gov. B.
I happily concede that the Senate could reject the appointment if it had reason to believe that it was in fact procured through bribery or some other criminal misconduct. But, as everyone seems to concede, there is no such evidence. How important is it, incidentally, that the Governor is accused of trying to sell the seat? What if he were accused, instead, of spousal abuse or drunken driving? That would also discredit him in the eyes of most people. Would it also allow the secretary of state to refuse to sign the letter of appointment and the Senate to refuse to seat the senator-designate? Or is the specific misconduct important, so that he retains all other powers (until impeached) except appointing a senator to fill the vacancy?
UPDATE: I should note that the "reader" who informed me about the relevant Illinois law was Jeff Norman, who has in fact published two illuminating blogposts on the Huffington site discussing the matter.
I gather that the current argument being made by Harry Reid and others is that the Senate can reject Burris because of a Senate rule that requires that a state's secretary of state sign the certificate of appointment. The Illinois secretary of state has refused to do so, presumably as an act of personal civil disobedience inasmuch as no legal grounds have been offered. See, e.g., the following dispatch:
A spokesman for Illinois Secretary of State Jesse White (D) confirmed to Election Central that White knows he does not truly have the authority to stop the appointment of Roland Burris to the Senate, but he withheld his signature from it earlier today in order to make a statement. But the door does appear to be open to some legal ramifications.
"His feeling is we studied the constitution of Illinois, we looked at the statutes, and there was nothing there that said he had to sign the paperwork," said David Druker, White's press secretary.
"We don't believe he has the authority to hold up the appointment or veto it, to put it that way," Druker added. "How the U.S. Senate views the action, that would be for the U.S. Senate to determine."
Assuming that the Senate does have a rule requiring the secretary of state's signature, why wouldn't that violate the 17th Amendment by adding a "qualification" nowhere mentioned in the amendment? The relevant part of the Amendment reads as follows: "When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." It appears that the Illinois legislature has long since passed a statute authorizing the governor to make an appointment, without mentioning anything about a veto right to be given the secretary of state. Or is the failure of Illinois to include a clause saying that "the secretary must sign a certificate" the equivalent of giving him/her a veto right, e.g., the equivalent of saying "the secretary is entitled to decide whether he/she approves of the governor's appointment and, if not, to refuse to sign the certificate?" [SEE UPDATE BELOW, WHICH SEEMS CONCLUSIVELY TO INVALIDATE ANY SUCH READING OF ILLINOIS LAW.] In any event, I do not see where the Senate believes it has the authority to define "the executive" of a state differently from the definition adopted by a state itself.
If one supports the refusal of the Illinois Secretary of State to sign a commission that is lawful on its face, then does this also suggest support for the proposition that the Attorney General could announce a refusal to enforce any laws signed post-arrest by the now-discredited Governor or that the head of the Illinois national guard should refuse to accept any orders by the person who I presume is the "commander-in-chief" of the guard unless it is federalized? If this were really an important issue, and not simply a bit of political entertainment about the relatively meaningless filling of a Senate seat, I think we could start speaking the language of "constitutional crisis" similar to that, say, of the Dorr Rebellion in Rhode Island in the 1840s. But, as Marx noted, first time tragedy, second time farce, so, for better or worse, it's only a "constitutional morass" and what Vermeule and Posner have labeled a "showdown."
UPDATE: A reader has sent me the following passage from Illinois law (15 ILCS 305/5) (from Ch. 124, par. 5):
Sec. 5. It shall be the duty of the Secretary of State: 1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor. 2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed..... (emphasis added)
There can be little doubt that Israel counts as a "democracy," certainly with regard to the majority Jewish population and even with regard to Israel's Arab citizens, who participate in elections and are able to elect some ethnic Arab represenatives. Certainly no other country in "the region" comes so close to meeting the standards of democratic rule. (I don't argue that free elections constitute a full description of "democracy," but they are certainly a necessary condition.) And, of course, Israel will be holding elections in February to select a new Knesset and, therefore, Prime Minister. I have expressed some preference for parliamentary systems over our own presidential system precisely because the former, on balance, offer more accountabilty.
That being said, it is also necessary to note that the debatable scope of the present war in Gaza, even if one accepts the view, as I do, that it was precipitated by the failure of Hamas to continue the truce and their decision to lob rockets into Israeli territory, has been decided upon by an Israeli government that is just as lame-duck as our own. Moreover, it is hard to escape the view that the most relevant decisionmakers are motivated by their deep (and altogether justifiable) desire to forestall the return to power of Benjamin Netenyahu and, therefore, determined to prove to his potential supporters that they are as willing to use military force, regardless of consequences to the Palestinians, as he presumably would be. It is hard for me otherwise to understand the decisions that Israeli leaders have made, given the foreseeable failure to eliminate Hamas as a political force in Gaza.
This may simply underscore the point that all political systems, including those we justifiably label as "democratic," contain within them aspects of "dictatorship" as well, in which decisions of life and death are made without prior approval by the demos. At least the Israeli leaders will indeed be submitting themselves to the judgment of their electorate, which is more than can be said for George W. Bush or Dick Cheney, who for 15 more days will be able to exercise whatever legal powers they possess secure in the knowledge that they will be not be accountable either to the electorate or, it appears, even the application of relevant federal statutes.
Far from continuing my standard critique of our Constitution, I confess that I see no magic solution to the problem of de-facto "dictatorial" aspects of modern government. Post-facto accountability is better than no accountability, etc., but we should always be aware of the awesome power we put in the hands of our political leaders based on little more than trust and confidence that they will use it wisely. The "rule of law" really is reduced, in important ways, to "the rule of a relatively small group of men and women" when situations are perceived as crises.
UPDATE: I note that the NYTimes has just posted a story, which will presumably be published in Monday's paper, titled "For Israel, Chance to Strike before an Ally Departs." Thus, according to the story, "Many Middle East experts say Israel timed its move against Hamas, which began with airstrikes on Dec. 27, 24 days before Mr. Bush leaves office, with the expectation of such backing in Washington. Israeli officials could not be certain that President-elect Barack Obama, despite past statements of sympathy for Israel’s right of self-defense, would match the Bush administration’s unconditional endorsement." If this is correct, and there is certainly no good reason to doubt it, then the responsiblity for the devastation in Gaza can be placed on our Constitution and the stupid hiatus between election and inauguration. Mr. Bush is neither gone nor forgotten, and lives are being lost as a result. Posted
11:44 PM
by Sandy Levinson [link]
(91) comments
Saturday, January 03, 2009
Tribe on Burris and the Temporal Factor
JB
Over at Forbes, Larry Tribe argues that Powell v. McCormack is distinguishable and that the Senate may refuse to seat Roland Burris. His argument is similar to that offered by Akhil Amar and Josh Chafetz, Mark Tushnet, and me. He concludes with the following:
But that the Senate's early December decision to exclude any Blagojevich appointee reflected nothing about the particular person he appointed cuts for, not against, leaving the matter to the judicially unreviewable judgment of the Senate itself.
For the danger of invoking doubts about the process of election or appointment, as a pretext for excluding someone that a Senate majority finds objectionable, is minimized when the decision to exclude is made in advance of any individual's appointment, and thus under the classical philosopher's veil of ignorance about whose ox might be gored.
Needless to say, whether the Senate has the authority to refuse to seat Burris is only the beginning of the matter, not the end of it. It merely sets up the background political entitlement in what is likely to be a complicated process of bargaining and playing for time. And even if the Senate lacks the authority to refuse to seat Burris, the debate over whether it does (and the need for Burris to bring litigation to establish his right) also gives the Senate and the Illinois legislature room for maneuver.
The Senate may ultimately seat Burris, but for the moment, it probably wants to delay decision by referring the matter to a committee to consider whether or not there was anything problematic in the circumstances of the appointment (Many commentators doubt that there is anything problematic with the appointment, but it's worth recalling that only a few weeks back the Governor was caught on tape boasting he would sell the seat and certainly wouldn't let it go without getting something valuable for it. Even if there is no present evidence of misconduct in this appointment, the Senate might insist that it deserves a little time to look a little closer into the circumstances).
While that investigation is ongoing, Illinois may impeach Blagojevich and a new governor may make another appointment, which the Senate will probably readily accept. Or Blagojevich may strike a deal that procures his speedy exit. Conversely, if the Senate delays too long, or allows the controversy to fester, it may look bad and/or impede the Democrats' legislative agenda. That is especially the case if the Democrats decide at some point that they want to seat Al Franken.
We do not know the ultimate course of events. The point here, rather, is that the constitutional question-- whether the Senate must seat Burris-- must be understood against these temporal and political factors.
In early December, I spoke at a Yale Law School breakfast on the current financial crisis — focusing on Robert Shiller’s book, The Subprime Solution. (Several of my earlier posts — here and here — were actually preparation for my presentation.) The first question to Shiller from the audience began: “Lots of my investment-banker friends are saying: Dubai, Shanghai, Mumbai, or the Highway …”
Shiller interjected: “What does that mean?” And the questioner explained that her friends were thinking that going forward, these foreign locales were likely to be much more economically successful than the West. She ultimately rephrased her question: “So I guess what I’m asking … Is America over?”
Shiller was no nattering nabob of negativism, saying that in 15 years the United States would be back “stronger than ever.”
The mention of Dubai in connection with the subprime crisis reminded me that just after the election, I was in Dubai for the World Economic Forum’s Summit on the Global Agenda, which focused on the world economic crisis. Sheikh Mohammed bin Rashid al-Maktoum, the Ruler of Dubai, addressed the conference. (You can read Peter Ubel’s description of the address here. The ruler’s most jarring assertion: “In Dubai, we are building our future with our own hands.”)
Until hearing this speech, I had failed to realize how upset the rest of the world might be with the U.S. for its subprime crisis.
Think about it. U.S. banks make ill-advised loans to poor U.S. citizens. And what happens to the rest of the world? They lose half the value of their stocks. The annoyance over our high-leverage loans is particularly high in Muslim countries, where mortgages are inconsistent with Shariah.
Martin Shubik invented a famous game-theory exercise, sometimes called “the dollar auction,” where a teacher auctions off a $20 bill to the highest bidder. Bids have to be in round dollar amounts, but the twist is that both the highest and the second-highest bidder have to pay. When uninitiated students start to play this game, someone rushes to bid $3 or $4 dollars for the prospect of winning $20, and then other students respond by bidding up the price.
But then something amazing happens as the auction price starts approaching $20. The remaining bidders realize that they could end up having to pay a lot of money and not win the auction. Imagine that you had bid $19, and another bidder upped the ante by bidding $20. What would you do? Is it better to bid $21 for a $20 prize or to remain silent and pay $19 for nothing?
What starts off as a feel-good exercise to take advantage of a generous professorial offer suddenly becomes a sickening war of attrition, where the last two bidders pay more than what the prize is worth. These games routinely end with the winning bid being 50 percent higher than the value of the prize. Since both the highest and second-highest bidders pay, this means that the professor rakes in about three times the amount being auctioned.
This is an example of what auction theorists call an “all-pay” auction, and it’s a game you want to avoid playing if you possibly can.
But Barry Nalebuff pointed me toward a scary website — called swoopo.com — that seems to be exploiting the low-price allure of all-pay auctions. And it seems to be working.
Swoopo auctions off desirable (gotta have) electronic items (Wii’s, smartphones) for really low prices and with really short fuses — often less than a minute before the auction expires. It’s kind of seductive to watch these fast-paced auctions — because if someone ups the high bid, 15 seconds of extra time is added to the auction length. I found myself waiting to see if a TomTom GPS device would really end up selling for $18.
But there is an important hitch: you have to pay Swoopo $1 every time you bid. This creates an analogous all-pay effect. Swoopo may only sell a Wii for $30, but it might collect an extra $1,000 from bids. This website is a great experiment to see whether sunk costs matter. I’m thinking that someone who has already invested $5 in bidding costs is more likely to keep bidding to “protect” his or her sunk investments.
Of course, there is also the concern that you might end up competing against a Swoopo-bot that outbids you just before the time is about to expire. This is a game that I don’t want to start playing.
Today's mail brought me the current issue of The Nation, a journal I have long admired, subscribed to, and, indeed, written for. So imagine my disappointment when its issue, devoted to "Ideas for a new progressive era," contained nary a mention of the need for any reflection at all on the adequacy of our "hard-wired" Constitution to the 21st century. To be sure, there is an interesting article by Aliz Huq, "Dismantling the Imperial Presidency," that concludes with the necessity for "restoring America's tarnished Constitution." As one might expect, though, all this refers to is the Bush Administration's depredations and the hopes that Obama will be a less imperial president. It apparently doesn't occur to Huq that more fundamental controls on would-be imperial presidents might include, for example, the ability to vote no confidence instead of having to engage in frustrating and fruitless debates about whether certain actions meet the presumed standards for impeachment set out in the 1787 Constitution. (And, frankly, I'm not sure that I agree with the article's premise that president's should never view themselves as possessing what Locke called "prerogative power." Perhaps what we should be doing is having a far more serious discussion than we've had up to now about how to design a least-dangerous form of "emergency governance" or even what Clinton Rossiter, following Machiavelli, called "constitutional dictatorship." An unfortunate reality of the Bush Administration is that its mixture of almost-fascist authoritarianism and demonstrated incompetence has made next to impossible a serious discussion of what kinds of "exceptional" powers we want to place in the hands of executives, whether we're speaking of the President or the head of the Federal Reserve Board.
I know that many of you disagree with me on this, and I'm not really trying to stir up another long thread about what would be wise policies with regard to either votes of no confidence or "constitutional dictatorship." Rather, what so dismays me is that there is not even the semblance of an intelligent public debate on such issues in journals that are, at least in self-presentation, most attentive to problems of presidential overreach and the like from a "progressive" stance. The Nation and The American Prospect are probably at somewhat different places along the political spectrum, but both, alas, seem to share an absolutely stunning complacence with regard even to the possibility that 21st century "progressives" might emulate their 20th century predecessors and ask serious questions about what might need changing in the Constitution. The period 1913-1920 saw four amendments to the Constitution, all of them important (including prohibition for its demonstration of the difficulty of prohibiting on basically moralistic grounds behavior that substantial minorities (at least) wish to engage in).
We're not even capable of having a serious discussion about whether we should provide a mechanism for "continuity in government" should a catastraophic attack deprive us of sufficient representatives and senators to constitute a legitimate government, as exemplified by the current posting on the Nation's web site by John Nichols. He repeats his foolish argument that "no governor should have the power to appoint a senator. Senate vacancies should be filled by the voters, as are vacancies in the US House." (As I've earlier demonstrated, his argument isn't necessarily foolish if there are only a couple of vacancies; it's an unmitigated disaster, though, should an attack deprive us of the active service of, say, 25 senators.) He concludes his posting, incidentally, by stating that Harry "Reid should stick to the stance he took after the governor was arrested December 9 and refuse to allow a Blagojevich appointee -- even one as credible as Burris -- to sit beyond the point when Blagojevich is removed from the statehouse." I would gladly serve pro bono on the Burris legal team should the Senate, having made its (I believe correct) decision to seat him in the first place, then try to remove him because Illinois has made the (presumptively correct) decision to bounce Governor B. Only those who read Article I, Section 5 as granting truly "plenary" power, i.e., unconstrained by any limits at all, could defend such a move. And that argument is no more attractive, or constitutionally compelled, than is the John Yoo argument about unconstrained powers in the hands of the president.
An Overlooked Aspect of the Judicial Pay Raise Debate
David Stras
Chief Justice Roberts made the following (familiar) plea in his year-end report on the Federal Judiciary:
I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again—Congress must provide judicial compensation that keeps pace with inflation. Judges knew what the pay was when they answered the call of public service. But they did not know that Congress would steadily erode that pay in real terms by repeatedly failing over the years to provide even cost-of-living increases. Last year, Congress fell just short of enacting legislation, reported out of both House and Senate Committees on the Judiciary, that would have restored cost-of-living salary adjustments that judges have been denied in past years.
Let me begin this post by stating at the outset that it is my opinion that Chief Justice Roberts is on solid ground in requesting cost-of-living adjustments (COLAs) that would keep judicial salaries on pace with inflation. (As a side note, all pay raises are a one-way ratchet because Article III does not permit Congress to diminish judicial salaries, even if the country were to go through an extended period of deflation as some economists now predict.)
But lost in these annual pleas for a pay raise is the fact that federal judges are statutorily entitled to an enormously generous pension package--one that entitles them to at least their salary at the time of retirement for the rest of their lives. Today, all federal judges are permitted to earn pension benefits with full pay if they satisfy the rule of eighty, which permits them to take senior status or retire on a sliding scale of age or service, beginning at age sixty-five and fifteen years of service, and ending at age seventy with ten years of service. Pursuant to 28 U.S.C. s 371, a judge that completely retires from active service is entitled "to receive the salary that he or she was receiving when he or she was last in active service." Meanwhile, if a judge satisfies the certification requirements required for senior status, then "during the remainder of his or her lifetime, [he or she] continue[s] to receive the salary of the office," which includes any pay raises passed by Congress. The income earned by both senior and retired federal judges is not subject to FICA taxes or the income taxes of many states, which means that the real income of federal judges actually rises upon their departure from regular, active service.
For federal judges, retirement benefits comprise a significant portion of the income that they expect to earn during the remainder of their lifetimes. Constructing a very simple model, I estimated the present value of both salary and retirement benefits for a judge appointed at the age of 50 and electing full retirement at the age of 65 (when she is first eligible). In constructing the model, I presume no cost of living adjustments or pay raises and no taxes of any kind on income even during regular, active service. I also apply a generous 5% discount rate, use the life expectancy data of the Social Security Administration for a person who has reached the age of 50, and assume that my hypothetical circuit judge (with a current annual salary of $179,500) earns all of her income at the end of each calendar year (which is unrealistic but has the advantage of simplicity). The present value (at the time of appointment) of the salary for my hypothetical judge during regular, active service is $1,863,148.62, or about 68% of her total income after age 50. Meanwhile, the pension benefits, discounted to present value at the time of appointment, are worth $896,206.34, or about 32% of her total expected income after age 50. (My guess, incidentally, is that my model substantially underestimates the value of the retirement benefits because it assumes no COLAs or pay increases during the entirety of my hypothetical judge's career, no taxes on the income earned during regular, active service, and uses a discount rate that is much higher than the average rate of inflation.)
Moreover, federal judges are also permitted to take part in the government's thrift savings plan, which is comparable to a 401(k) plan in the private sector, and they enjoy employee benefits that are very similar to those available to other government employees. Charts released by the Administrative Office of the United States Courts, available here, compare the nominal pay of federal district judges to senior law school professors and law school deans. These charts, among others, have formed the basis for persistent pleas to raise judicial salaries. The charts, however, are potentially misleading because they fail to include the generous retirement benefits that are statutorily available to federal judges. Using my very rough model above and spreading the nearly $900,000 present value of pension benefits across a judge's fifteen years of active service, a federal circuit judge effectively earns at least $60,000 more per year (using the future value of these payments) than the charts released by the Administrative Office would suggest. Meanwhile, law school professors earn anywhere from a 5% to 13% matching grant toward retirement benefits from their employers, far less than the more than 33% earned by federal judges.
Even if I made some small arithmetic errors in my model above, my guess is that the present value of pension benefits for federal judges at the time of their appointment is closer to 40% of the total income that they expect to earn after age 50 if I were to use more realistic assumptions. And even if my model is too rough to be absolutely accurate, I think it adequately makes the point that the current comparative numbers released by the Administrative Office are insufficient. As a result, I personally cannot decide whether I support a pay raise for judges beyond simple cost-of-living adjustments, in part because I am highly skeptical of the comparative data released by the Administrative Office. Thus, I would encourage the Administrative Office to release more sophisticated data that take into account all bases for judicial compensation, not just the nominal salary numbers now emphasized. Then I might be persuaded that federal judges are underpaid and deserve the raise that has been persistently requested by the last two Chief Justices.
The case against seating Burris: Too Clever By Half?
Sandy Levinson
I truly regret to report that I am unpersuaded by the arguments made by my friends and usual compatriots Jack Balkin, Mark Tushnet, and Akhil Amar (I don't know Josh Chafetz, the co-author of the Slate article defending the Senate's prerogative to refuse to seat Burris). I suppose it's true that the Senate could/should consider the bona fides of a gubernatorial appointment if there is good evidence that it was procured by criminal means, including bribery. The problem is that there is not a scintilla of such evidence in this case. Governor B. might well be guilty of "attempted sale of the Senate seat," but it's clear that it didn't work, and that he, clever politician that he is, reached out to strengthen himself with a key constituency and, an added bonus, to discomfort many of his erstwhile Democratic Party allies. I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny. Consider, for example, the shameful appointment of Lisa Murkowski to the Senate by her father, the former Senator who became Governor of Alaska. There is no plausible evidence that anything other than nepostism explains the appointment. Should the Senate have been empowered to decline to seat Ms. Murkowski (who was subsequently elected, though with a minority of the total vote, given the presence of minor parties in the race)? Should the motives of Gov. Patterson be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?
Given the capabilities of the analysts in question, I certainly don't question that the arguments made by Tushnet, Balkin, Amar, and Chafetz are within the realm of plausibility, and I certainly agree that senators have the raw political power torefuse to seat Burris (and, therefore, to deny the people of Illinois half their representation in the Senate for many months). But just as Jack has made his turn, wisely or not, to a form of "originalism," I find myself, given my own turn toward emphasizing the importance of "hard-wired" aspects of the Constitution, rather inclined to what some people might even denigrate as "mindless textualism." That is, I do believe that the text of the 17th Amendment, read in its most ordinary sense, allows a state to empower its governor to make a temporary appointment (even if I do concede that the Senate could refuse to seat the appointee if one thought that the governor had made the appointment as part of criminally corrupt bargain). Governor B. is the fully legal governor of Illinois unless and until he resigns or is impeached. To say that the untoward conduct of which he has been accused deprives him of the power that the Constitution authorizes Illinois to give him leads to all sorts of conundrums: If I am charged with violating an Illinois statute passed by the Illinois legislature and then signed by Governor B. in the last couple of months, can I claim that the statute isn't "really" legitimate because, after all, Gov. B. isn't really the governor anymore? That's obviously absurd on its face. But why, precisely? Is the answer that Balkin et al. are really defending the prerogative (and I use that word advisedly) of the Senate to offer what laypeople would find strained and hypertechnical readings of the Constitution in order to escape a political embarrassment? If so, I return to Murkowski? Why shouldn't the Senate have risen as one to say that such blatant nepotism violated our "Republican Form of Government." Akhil has a brilliant discussion in his book America's Constitution on the Founder's rejection of dynasticism.
I have been railing for the past several months against the almost criminal stupidity of the Inauguration Day Clause, but I've never suggested that there is a clever way of working around it in the absence of a willingness of President Bush and Vice President Cheney to resign first. If one feels "stuck" by that incredibly stupid clause, with consequences far, far worse than allowing a presumptively competent, if somewhat superannuated Illinois politician to serve a couple of years in the Senate, then I think we should recognize that the 17th Amendment, too, generates a relatively hard-wired rule that limits the possibilities of further Senate scrutiny and the political mischief it invites. (Imagine, for starters, that the Senate is closely divided and that accepting the appointment would change the political control of the Senate (as in 2001) or provide/prevent a "filibuster-proof" majority.)
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