Power and Productivity after the Great Recession

Frank Pasquale

The economic news is bleak. Dean Baker warns that we are very close to a second Great Depression. Tim Duy says that the economy is "circling the drain." Doug Henwood observes that while the US economy used to be a "brutal but dynamic place" for workers, now it's just brutal. If employment growth continues at May's pace (a rate typical of post-financial-crash economies), it will take us a decade just to gain back the jobs lost in the Great Recession.

Back in 2008, many weighed the relative likelihood of deflation or hyperinflation. Today's via media is stagflation. Commodities are becoming dearer, and consumers feel the squeeze, whatever the mathemagicians behind inflation stats say. We have entered a "great stagnation," and our political leaders are content to utter platitudes about "expansionary austerity" or "innovating our way" to "win the future." How either strategy will save the 22 to 29% of US jobs that are offshorable remains unclear.

Since nobody likes an unhappy ending, a boomlet of "soft landing" stories has emerged, explaining why (as Tyler Cowen puts it) "we'll feel better" eventually. I want to take a look at a few of these, discuss why I think they're implausible, and turn our attention to what the real stakes of the crisis are.
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Posted 12:56 PM by Frank Pasquale [link]

Your First Amendment Right to Privacy

Frank Pasquale

(Review of Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale University Press, 2011)).

 [Disclosure: Both Solove and I write regularly at Concurring Opinions, a legal blog that has 11 permanent members and a rotating roster of guest bloggers.]

It’s hard to motivate Americans to care about surveillance technology. Defeatism and denial are common responses to the privacy invasion du jour. Why complain about warrantless wiretaps when there is bipartisan consensus for an expanding surveillance state? Many argue that good people don’t need privacy: if you’ve got nothing to hide, why worry about government looking through your business?

Daniel J. Solove’s new book shatters that myth. Nothing to Hide reaffirms the value of privacy, shows how endangered it is, and proposes real solutions.  Before giving away any more of it for a mess of security theater, we need to hear his arguments. The power to watch is the power to attack, embarrass, and destroy reputations.  Solove shows that the “nothing to hide” caucus misunderstands privacy as a problem of concealing isolated facts.  What we really should be thinking about is a critical mass of data.  Our lives are starting to become an open book for those powerful or rich enough to demand our profiles. 

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Posted 7:08 PM by Frank Pasquale [link]

The Crisis of Presidential Legality: The Libyan War as a Test Case

Bruce Ackerman

In a recently published book review of The Decline and Fall of the American Republic, Professor Trevor Morrison vigorously contested my critique of the Office of Legal Counsel and the Office of White House Counsel . Given the seriousness of his effort – 62 pages in the Harvard Law Review –I owe him a response, which has just been published on-line by the Review.

I’m curious to hear how well you think I’ve done countering his critique. But for now, I want to relate the larger themes of the Morrison-Ackerman debate to the current issues raised by President Obama’s breach of the War Powers Act. The statute famously requires presidents to gain Congressional consent within 60-days of his initiation of “hostilities.” But Obama hasn't done so.

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Labels: libya, office of legal counsel, war powers act, white house counsel

Posted 1:21 PM by Bruce Ackerman [link]

Avoiding Local Constitutional Difficulties

Gerard N. Magliocca

Not long ago I did a series of posts about situations in which constitutional interests are regulated by offering an institution a constrained choice that is between a command and an unfettered choice. While I described that idea as a "constitutional liability rule," I now think it should be called a "constitutional property rule," because what is at issue is how bodies bargain over the cost of autonomy. Basically, the point is that sometimes we are better off with a structure that permits certain outcomes but makes them more costly to achieve.

The application of this concept that I have in mind involves local government. With respect to federal and state statutes, courts apply (albeit inconsistently) an interpretive canon that the text should be read, if possible, to avoid constitutional difficulties. We have also have clear statement rules in certain contexts that further a similar goal. And federal courts will sometimes certify ambiguous state law issues when doing so might eliminate the need for a sensitive federal constitutional ruling.

One area where we do not take this cautious approach is where a local government enacts a controversial policy pursuant to its "police power" authority from the state. Suppose a city council or school board wants to use race-conscious remedies, put the Ten Commandments on local property, or ban guns from a certain area. A federal court reviewing a challenge to such a policy almost never asks whether the town was authorized by the state to do these things. The assumption is that unless an action is prohibited by state law, local bodies are free to do as they wish under whatever general enabling statute or state constitutional provision gives cities the power to be cities.

Why should this be the presumption? Why doesn't it make more sense to read a town's authority narrowly when constitutional rights are at stake? The upshot of this is that certain local practices would only be permissible if the state expressly authorizes that city (or all cities within the state) to undertake the practice. This would, of course, make it less likely that a constitutional question would arise, because the underlying decision would need wider support and receive greater scrutiny. Put another way, this interpretive approach would raise the cost of doing certain problematic things without prohibiting them.

The current approach to constitutional avoidance has things somewhat backwards. We care a lot about ensuring that Congress speaks clearly on difficult subjects, even though its internal political and institutional checks are relatively robust. With respect to local government, those kinds of constraints are far more limited (or nonexistent), yet we don't impose an equivalent limit on the law that typically gives cities their authority. I think that this is misguided, at least when a party is making a facial challenge to a local ordinance.
Posted 1:27 PM by Gerard N. Magliocca [link] (3) comments