About the Verizon/Google "Deal" on Net Neutrality

Marvin Ammori

Yesterday, Bloomberg reported that Verizon and Google have made a deal on network neutrality policy they'd like to see in America. That deal (surprise!) is Google can get special privileges on Verizon's network. The Huffington Post splash page mocks Google's slogan: "Don't Be Evil" with an asterisk. Asterisk: "unless it's profitable." Josh Silver called it the end of the Internet as we know it.

I want to explain why I think this deal matters, and why it doesn't. And it might not be for the reasons you think.
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Posted 12:28 PM by Marvin Ammori [link]

The Fourteenth Amendment and the RTFM Principle

Mark Tushnet

Republican proposals to "examine" the idea of birthright citizenship under the Fourteenth Amendment have been met with outrage from liberals. I have views on the merits of the interpretive question, but they're irrelevant here. What's of interest to me is the form that liberal opposition has taken -- an invocation of the core interpretive principle RTFM as conclusive. (When you're setting up some new electronic equipment, the first thing you ought to do is Read The ... Manual.)
Posted 8:49 AM by Mark Tushnet [link]

Turning a trial judge’s weakness into strength

Andrew Koppelman

The following appears today (in slightly edited form) on the New York Times Subject to Debate website, along with contributions from Kenji Yoshino and Eugene Volokh:


Today’s federal district court decision striking down California’s same-sex marriage ban may or may not be upheld on appeal. But it shows why it matters what district courts do, even though the Supreme Court will have the last word. That Court may uphold state bans on same-sex marriage, but the district court’s opinion will make that harder to do.

District Judge Vaughn Walker turned in a virtuoso performance, taking the obvious weaknesses of his position as author of an opinion that was sure to be appealed, and turning them into strengths.

District court conclusions of law always get examined anew by the appeals courts, first the federal Courts of Appeals and, if it can be persuaded to take the case, the Supreme Court. There’s no reason to feel confident that there are five votes on the Supreme Court to legalize same-sex marriage throughout the United States. (When I try to count the votes of which I’m sure, I have trouble getting to one.) District courts do, however, get to find facts. And appellate courts, because they don’t get to see the witnesses and assess their credibility, are supposed to accept the facts as the trial court found them.

So if the Supreme Court reverses the district court’s decision that same-sex couples have a right to marry, it will have to do it in the teeth of Walker’s factual findings that same-sex marriage is good for gay people and the children they raise (one out of five same-sex couples in California are raising children), that there are no discernible differences between same-sex and opposite-sex couples, that “domestic partnerships” offer fewer benefits than marriage and irrationally stigmatize same-sex relationships as inferior, that recognition of same-sex couples’ right to marry does no detectable harm to heterosexual marriages, and that the campaign for Proposition 8, which outlawed same-sex marriage in California, relied on prejudice and vicious antigay stereotypes, such as the idea that gay people are dangerous to children.

Judge Walker carefully avoided resting his holding on any controversial proposition of law, such as the idea that gay people should be regarded as a specially protected minority under the Fourteenth Amendment. Instead, he relied on law already laid down by the Supreme Court. He held that Proposition 8 lacked a rational basis, because the “facts” that were invoked in its defense were manifestly false. His job was made easier by the remarkable incompetence of Proposition 8’s defenders in managing their listed expert witnesses, most of whom never testified at all. An appeals court that wants to ignore his findings of fact – something that can be done only if the trial court’s findings are plainly erroneous – will find very little support in the record.

The Supreme Court gets to say what the law is. But it has to accompany its judgment with a reasoned opinion. I don’t envy the judge who has to write the opinion overturning Walker’s decision, while treating these findings of fact with the deference that is normally appropriate for appeals courts.
Posted 10:47 PM by Andrew Koppelman [link]

Posting A Guide to the Network Neutrality Discussions at the FCC

Marvin Ammori

Politicians always claim their policies will help the average American, but you can’t always believe them. They face political pressures, walking a fine line between pleasing the powerful and serving average voters. A common tactic in walking this line is serving the powerful while trying to fool the public.

This is common because the powerful--say, in banking, oil, tobacco, insurance, military, media, cable, and telecom--have well-trained lawyers and lobbyists who monitor the details of laws, and who can't easily be fooled by public relations. But few of us are expert enough, or even have the time, to review the details of the many laws affecting our lives. Fewer of us have lawyers on payroll protecting our interest in Congress and federal agencies. So powerful lobbyists can strategically hide their giveaways in obscure legislative details using "magic words" called terms of art that have specialized legal meaning understood by only few experts but not understood by the public (or even most Congressmen). And then politicians can sell a law to the public as a great victory while glossing over the details.

Today, the Federal Communications Commission is in meetings with large corporations to discuss rules for an open Internet. While all of us rely on an open, free Internet in our daily lives, to communicate with loved ones, to learn the news, to debate politics, to organize for or against a cause, and even just to book travel, buy books, and check our finances, few of us understand the legal rules ensuring (or not ensuring) the Internet’s openness.

As a result, since I am a scholar on this issue who spent years in DC advocating for net neutrality, I post a detailed guide to the details debated in the current net neutrality discussion. With this guide, you will not need a well-heeled lobbyist to let you know if the FCC Chairman’s public relations potential campaign is true. You will know for yourself if the Chairman has preserved an open Internet or buckled to political pressure from the largest corporations when he, like any politician, claims his policies will help the average American.
Posted 12:30 PM by Marvin Ammori [link]

Why Is American Politics So Polarized?

Rick Pildes

There have been a great deal of popular writing of late, including a number of posts on this blog, that has spoken of the seeming dysfunction of America's political institutions, given the hyperpolarized nature of partisan politics that now structures the way our policymaking institutions operate (or fail to operate). In light of all this commentary, readers might be interested in an article I recently posted on SSRN, forthcoming in the California Law Review, entitled Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America. Here is the abstract:

Politics as partisan warfare: that is our world. Over the last generation, American democracy has had one defining attribute: extreme partisan polarization. We have not seen the intensity of political conflict and the radical separation between the two major political parties that characterizes our age since the late 19th century. Within Congress, the parties have become purer and purer distillations of themselves. The parties are now more internally unified, and more sharply differentiated from each other, than anytime over the last 100 years. Moreover, this polarization is not limited to those in office. Over the last generation, there has been a dramatic ideological and partisan sorting of voters as well. A center in America’s governance institutions has all but disappeared.

This article explores the causes of this polarization. Are the causes relatively contingent and short-term ones, so that it is possible to envision this structure of extreme partisan polarization changing, perhaps if certain institutional changes were made in the way American democracy and elections are designed? Or are the causes deep-rooted and structural ones, so that the appropriate conclusion is that this extreme partisan polarization is likely to be the ongoing structure of American politics and democracy for the coming years, regardless of any efforts that might be made to diminish this polarization? In particular, the article explores three potential causes of this polarization, which I label Persons, History, and Institutions.

"Persons" refers to the view that polarization is a reflection of particularizing polarizing personalities of various recent political figures, including Presidents. This view is reflected in the longing for the "statesmen" of past decades, who forged political breakthroughs across party and ideological lines to enact major policy initiatives. "History" describes the view that large-scale historical and transformative forces in American politics account for the modern structure, coherence, and polarization of the Democratic and Republican parties of today. The specific historical processes involve the end of the 20th Century one-party monopoly on the American South, which began with the 1965 enactment of the Voting Rights Act; the destruction of that world eventually led, by the 1990s, to the South having a system of genuine two-party competition for the first time since the Civil War. How much does the dramatic re-organization of American democracy entailed by that transformation account for the structure of partisan conflict today? "Institutions" refers to more discrete structures that organize democracy: the structure of primary elections, gerrymandering, campaign finance, and the internal rules that allocate power to political leaders in the House and Senate today. How much do these specific institutional features contribute to polarization, and in what ways, if any might they be changed to diminish it?

To foreshadow, the article concludes that the major cause of the extreme polarization of our era is the historical transformation of American democracy and America's political parties set into motion by the 1965 Voting Rights Act. Thus, perhaps the extreme polarization over the last generation should not be seen as aberrational (indeed, the pre-1965 structure of parties is the one to view as aberrational). This polarization, for better or worse, might be the "mature" structure of American democracy. As such, it is likely to be enduring, despite the best efforts of Presidents and reformers to transcend the extreme polarization of recent years.

This article was presented as the 2010 Jorde Lectures at the University of California at Berkeley Boalt Law School (fall 2009), and at Princeton University (spring 2010). Commentary on the article was provided by Sean Wilentz (History Dept., Princeton) and David Kennedy (History Dept., Stanford), Michael McConnell (Law School, Stanford), Nolan McCarty (Politics, Princeton) and Paul Frymer (Politics, Princeton). The California Law Review is publishing all of this commentary, along with the Jorde Lecture article.
Posted 10:07 AM by Rick Pildes [link] (157) comments

George Packer on the Senate

Sandy Levinson

Everyone should read George Packer's piece in the current New Yorker (though it's possible you need to be subscriber to get it), on "The Empty Chamber: Just how broken is the Senate"? The answer is very. The filibuster is only part of the problem. The article begins with the lunatic Senate Rule XXVI, paragraph 5, which requires unanimous consent for any committees to hold hearings after two in the afternoon when the Senate is in session. If senators were in fact required to be in the chamber, this would pass the minimum rationality test. But, since they are not, it is truly and utterly lunatic, serving only to give yet another arrow to obstructionists who want to destroy the capacity of the Senate to operate (and, most certainly, to engage in the kind of oversight for which committee hears are necessary). Then there are holds.... Packer also focuses a lot on the personalities of the people (particularly hard-right Republicans).

Packer sugggests that there is very little hope for the "constitutional option" to change the filibuster rule at the beginning of the next session, since too many senior Democrats like it (so they can make sure that Republicans can't pass their own programs when the time comes).
No sane country designing a constitution today would establish an institution like the United States Senate. The fact that we are suffer under it is the best illustration of what political scientists call "path dependance," the ability of bad decisions in the past (recall that James Madison hated the "Great Compromise" that brought us the Senate, which should give reverential "originalists" at least some pause, or, at least, they should explain why the Senate is any more legitimate than the 3/5 Compromise that entrenched the power of slaveowners, the other "Great Compromise" that made the Constitution possible).

Once again, I am reminded of Carl Schmitt's great writings on the Weimar Parliament during theh 1920's. No one seriously believes tht the Senate is any longer a forum for genuine "debate," which, among other things, requires the possibility that someone will actually change his or her mind as a result of some persuasive argument made by someone else, independent of polticial party. No one shows up, most of the time, and when they do show up they read speeches drafted by staff (who are often even more ideologically driven than their ostensible bosses). I am, of course, grateful that the Senate was able to pass (inadequate) health and financial regulation bills, but they are incapable of confronting any of the other challenges that face us.

Who can be optimistic about the future of this country? (I challenge, incidentally, our right-wing friends who participate in the discussion to name the particular Republican or libertarian they wish to take the helm, unless, of course, they are true anarchists who believe we can do without government at all.)
Posted 3:50 PM by Sandy Levinson [link] (35) comments

Judge Preserves Constitutional Challenge to Individual Mandate

JB

Today Judge Hudson in the Eastern District of Virginia refused to dismiss Virginia's constitutional challenge to the individual mandate for failure to state a claim.

The court rejected arguments that the state of Virginia lacked standing to challenge the individual mandate and that it was barred by the federal Tax Anti-Injunction Act, which requires people challenging tax laws to seek a refund rather than pursue an injunction. The court also held that because the legal questions posed by the challenge were novel, and there were no controlling circuit court or Supreme Court precedents, it would proceed to a consideration of the merits.
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Posted 12:25 PM by JB [link]