Barnett’s Feudal Libertarianism

Andrew Koppelman

You can read the rest of this post on Salon.com, here.
Posted 10:35 PM by Andrew Koppelman [link]

Epstein & Martin on Public Opinion and the Supreme Court

Mary L. Dudziak

Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why) has just been posted by Lee Epstein, University of Southern California, and Andrew D. Martin, Washington University, St. Louis.  It appears in the University of Pennsylvania Journal of Constitutional Law, Vol. 13, No. 263, 2010.  The article uses quantitative analysis to test the argument made by Barry Friedman and others that public opinion influences the Supreme Court.  While they find an association between the Court and public opinion, importantly they stress that the association does not prove causality, for "it is equally plausible...that the Justices are simply 'social beings confronted with the plethora of stimuli emanating from American culture, media and politics.' In other words, the same things that influence public opinion may influence the Justices, who are, after all, members of the public too."  Other political science work on public opinion shows that public opinion does not naturally flow up from the public, but is mediated especially by elite discourse and partisan politics.  Taking the causality question seriously should require scholars of the Court take seriously work on what public opinion is, and what forms it in the first place.

Here's Epstein & Martin's abstract:

Using qualitative data and historical methods, Barry Friedman asserts with confidence that “we the people” influence the decisions of the U.S. Supreme Court. Using quantitative data and statistical methods, political scientists are not so sure. Despite their best efforts to validate basic claims about the effect of public opinion on the Court, the evidence remains mixed at best.

We enter this dialogue but in a voice distinct from existing political science work. Rather than explore the relationship between the public and the Court on a term-by-term basis, we analyze it at the level of the case. This allows us to exploit more nuanced public opinion data, as well as to attend to the many other case-level factors that may influence the Court’s decisions.

Based on our analysis, we are prepared to say that Professor Friedman is on to something. When the “mood of the public” is liberal (conservative), the Court is significantly more likely to issue liberal (conservative) decisions. But why is anyone’s guess. Professor Friedman posits that the Justices will bend to the will of the people because the Court requires public support to remain an efficacious branch of government. Our analysis could be read to support this view, but it is equally consistent with another mechanism: that “the people” include the Justices. On this account, the Justices do not respond to public opinion directly, but rather respond to the same events or forces that affect the opinion of other members of the public.

Our study proceeds as follows. In Part II, we briefly review the extant literature, emphasizing the similar methodology it invokes but the varying conclusions it reaches. Parts III and IV describe our methods and findings. We end, in Part V, with the implications of our statistical work for Professor Friedman’s claims, as well as for future research assessing the Court’s response to public opinion.

Cross-posted from the Legal History Blog.
Posted 11:08 AM by Mary L. Dudziak [link]

Failing Law Schools

Brian Tamanaha

My critical book about legal education, Failing Law Schools, is out. About a dozen advance reviews of the book have been published, each with different take, but all in agreement that the book should be read by legal educators. (A few examples: Fish, Kerr, and Henderson.). This recent comment captures the thrust of the book:

I just finished reading a book that everyone who cares about legal education in the United States should read: Failing Law Schools by Brian Z. Tamanaha. The book does an excellent job of describing the economic realities of law schools for prospective law students and society as a whole. Tamanaha gives a compelling and highly critical analysis of how law school became so expensive, and what can be done about it now. And, he doesn’t pull punches. If the law school you went to wasn’t mentioned, the law school you teach at, or that your colleagues went to will be named (and shamed). Tamanaha is critical of law schools and law professors from the top 14 to the 4th Tier and every school in between.

For those of us who went to law school before it became so expensive, Tamanaha does an excellent job of breaking down what it means to graduate with $100,000 or $120,000 in student loans for the average law student with the average salary of around $70,000. He also lays out the statistics about how difficult it is, and will probably continue to be, for many law graduates to find full time work as lawyers. This is a situation that Tamanaha argues will continue well past the time when the economy recovers. Tamanaha also describes the shift from needs-based to merit-based scholarships that has, among other problems, made it even tougher for lower income law students to attend law school without high debt. (ADR Prof Blog)

Many legal educators will disagree with my arguments, of course, and I do not claim to know how to solve what I call the "broken economics of legal education." Indeed, things are so out of whack that I doubt we will solve it. But we must at least begin to grapple with these issues rather than ignore them.

The opening comment of Bill Henderson's review was the most jarring observation I have seen so far: "Many legal academics are going to dismiss Brian Tamanaha's book, Failing Law Schools, without ever reading a page. A larger number may simply ignore it. That is ironic, because this is the response one would expect if Tamanaha's account of a corrupt, self-indulgence academic culture were true." I hope Bill is wrong.

What I have tried to do with this book is bring solid data to the debate. I am struck by the fact that the defenders of the legal education status quo so often respond with unverified assumptions, sweeping generalizations, or old platitudes or anecdotes.

In an article on the book today in the National Law Journal, for example, the Chair of the ABA Section on Legal Education, John O'Brien, remarks critically, "Nobody feels good that tuitions have gone up. But the claim that a law degree is a bad investment doesn't hold water." My precise argument is that a law degree is a good investment for some students, but for many it is a financial disaster.

To see what I mean we need look no further than Dean O'Brien's own institution, New England School of Law. Nine months after graduation, only 34.4% of the 2011 class had obtained full time, permanent lawyer jobs (see ABA data broken down here). The average debt for 2011 NE law grads was $120,480 (90% of the class had debt). NE claims that the median salary in the private sector for the class of 2010 was $67,500, but only 15% of the grads in private employment reported their salaries so the actual median salary for the class is undoubtedly much lower. People who earn that much will struggle to make the monthly payments ($1,400) due on the average debt. (Meanwhile, Dean O'Brien received $781,710 in total compensation in 2009.)

This is what the book does--it brings numbers to the debate about legal education. I talk about professor teaching loads and salaries, the costs of research and clinics, the remarkable rise of tuition and debt, the salaries our graduates earn at graduation and a few years out, the implications of the transfer phenomenon, the social consequences of our scholarship policies, the ongoing collapse in applicants, and much more.

If you care about the fate of our students, about the fate of your own law school (many will be in trouble), or about legal education more generally and its impact on the legal system and society, the information in this book will be sobering. Unfortunately, the situation today is even worse than what I set out because there is a lag in the data and most of my numbers are from 2009 and 2010 (the book was completed 6 months ago)--the 2011 debt and job numbers for law graduates have deteriorated markedly.
Posted 11:29 AM by Brian Tamanaha [link] (6) comments

The Corporate University: Recent Developments

Frank Pasquale

There are many memorable images in Rob Nixon's book Slow Violence and the Environmentalism of the Poor. Describing the "risk relocation" that is a prime function of the global economy, he offers this vision of Nigeria:

Often, as a community contends with attritional assaults on its ecological networks, it isn't granted equitable access (or any access at all) to modernity's basic infrastructural networks . . . . Like those Niger Delta villages where children for decades had no access to electricity for studying at night, while above their communities Shell's gas flares created toxic nocturnal illumination. Too dark for education, too bright for sleep: modernity's false dawn. (42)

Exxon is now "a corporation so large and powerful — operating in some 200 nations and territories — that it really has its own foreign policy." As Steve Coll observes, the US "gives Chad only a few millions dollars a year in aid, while Exxon's taxes and royalties can be worth as much as $500 million." Had Exxon directed only 10% of its 2008 profits to political expenditures that year, it would have spent "more than every candidate for President and every candidate for Senate spent at the last election." In a surprising number of contexts, corporations enjoy far more freedom of action, and secrecy, than states.

Is it any wonder, then, that universities are beginning to shift allegiance, to pursue the agenda of corporate donors instead of public values? Conferences like EduFactory have chronicled the long history of the corporate university; Philip Mirowski has critiqued it in books and edited collections. But it feels like we are on the verge of a phase change, an irreversible acceleration of dynamics once muted and slowed by the ancient cultural identity of the university. Consider these developments:

1) Martha McCluskey has described "economics scholars simultaneously acting as academic experts on the public interest and as sellers of this expertise to the highest private bidder." She has chronicled a number of troubling aspects of a recent report on fracking issued by the “Shale Resources and Society Institute” (SRSI) of SUNY Buffalo:
Read more »
Posted 10:36 AM by Frank Pasquale [link]

Compulsory burial insurance--It's not only a good idea, but (like gravity), it's the law!

Sandy Levinson

Possibly the stupidest question that arose during the oral argument over the Affordable Care Act was by Princeton-, Yale Law School-educated Samuel Alito, who questioned whether, gasp, the federal government could require persons to buy burial insurance. The very idea.... Leslie Gerwin, who teaches at the Cardozo Law School on, among other things, public health, and I offered our own response to Justice Alito, published at the Huffington Post. I confess I was struck by the first comment following our piece, by one George Hanshaw:

It is NOT the purpose of the Supreme Court to decide issues of public policy. Their purpose is to decide issues of law. Both sides submitted briefs that addressed certain issues of law pertaining to the ACA. Whether the law itself was 'good' or 'bad' from a policy perspective is not in the least germane to that process. The Supreme Court's role is to decide whether or not the LAW of the ACA was consistent with other laws and with the constitution - and moreover ONLY in those areas that were covered in the legal complaints and briefs. THAT is the scope of the decision for the SCOTUS. Whether their decision causes more people or less people to have medical coverage, indeed, more people or less people to DIE is irrelevant to the SCOTUS role. The SCOTUS rules on the appropriateness of the law, not the appropriateness of the policy, and certainly not the outcome.

I don't know if Mr. Hanshaw is a "let the Constitution be obeyed though the heavens fall" or "the Constitution is a suicide pact" kind of guy or not. Perhaps he was equally incensed when Antonin Scalia suggested in one of the habeas cases (where the Court was pretending really to care about the fate of detainees) that it counted against the Court's presumably sincere reading of the Constitutions that Americans might die. I don't deny that there is an available theory of constitutional interpretation that makes Mr. Hanshaw's remarks perfect sensible. One can find it most eloquently set out, for example, in Chief Justice Taney's opinion in Dred Scott or in John Marshall's opinion in The Antelope, which also, not entirely coincidentally, dealt with the "duty" of the "jurist" (who is being distinguished from the "moralist") to be indifferent to any qualms one might have about chattel slavery. But I don't think one can make sense of the American constitutional tradition, whether in its liberal or conservative instantiations, by reference to the kind of positivism embraced by Mr. Hanshaw. Nor, for what it is worth, do I think the American legal culture would accept the elimination of "compelling interest" tests that protect us against a mindless literalism that would treat, for axample, all speech or all religious practices as protected regardless of their harm to vital social interests.
Posted 4:51 PM by Sandy Levinson [link] (95) comments

Update on Illinois Marriage Equality Act: State's Attorney Agrees that Illinois Marriage Ban Violates Illinois Constitution

Linda McClain

Just a quick update on what is evidently an unprecedented development in the two lawsuits recently filed by twenty five same-sex couples in Illinois. Those lawsuits (about which I wrote on June 5) alleged that the Illinois Marriage and Dissolution Act, which bars them from marrying, violates the Illinois Constitution. From the outset, a striking feature of those suits was that the nominal defendant, the Cook County Clerk, David Orr, sued for declining to issue the couples marriage licenses, immediately expressed his support for them. So did the Attorney General.

Yesterday, the public official to whom it would ordinarily fall to defend Illinois’s marriage law in the lawsuits – Cook County State’s Attorney, Anita Alvarez – indicated in a court filing that the State’s Attorney supported plaintiffs’ suits. I have not seen the actual filing, but a spokesperson told the press: "We believe the plaintiffs are correct in their assertion that the Illinois Constitution upholds marriage equality for same sex couples just as it does for opposite sex couples." Alvarez acknowledged her position was "unusual," but stated: "We do believe the equal protection clause of the Illinois Constitution is just that. It protects everybody equally." Her office also filed a response on behalf of Orr, stating that the clerk "admits the inequity and tangible harm done to same-sex couples who are denied access to civil marriage licenses." The State’s Attorney’s position reportedly came after several days of deliberation and a unanimous conclusion by her staff that the state’s marriage ban violated the Illinois constitution’s equal protection clause.

Normally, the Attorney General’s office would be next in line to defend against the lawsuits. However, as I noted in my earlier post, the AG already indicated that it would seek to intervene in order to "present the Court with arguments that explain why the challenged statutory provisions do not satisfy the guarantee of equality under the Illinois Constitution." In other words, the AG – like the defendant and the State’s Attorney – agrees with the plaintiffs’ claims!

So who will defend the law, if the state’s own representatives will not? The Chicago-based Thomas More Society, which describes itself as a "not-for-profit, national public interest law firm that exists to restore respect in law for life, marriage, and religious liberty," is reportedly preparing legal papers to seek to be allowed to defend the ban in court. It is hard to see a persuasive argument for allowing this law firm to defend a state law that public officials ordinarily charged with its defense instead agree is unconstitutional. No doubt the Society will make arguments about giving "the people" of Illinois a chance to be heard on the issue and about how the public officials have somehow overlooked and failed to articulate Illinois’s vital interests in excluding same-sex couples from marriage, even though it allows them to enter into civil unions. Will they find any support in the precedent of the Prop 8 proponents defending Prop 8 when the State of California declined to do so? It will be interesting to see what happens next.
Posted 6:29 PM by Linda McClain [link]

New Ruling that DOMA Is Unconstitutional: Federal District Court in New York Takes Cues from the First Circuit

Linda McClain

On June 6, Judge Barbara S. Jones, a district court judge in the Southern District of New York (SDNY) ruled that Section 3 of the federal Defense of Marriage Act (DOMA) was unconstitutional as applied to 83-year old widow Edith Windsor. Worth noting is the way that this district court within the Second Circuit took its cues from the First Circuit’s recent ruling that Section 3 was unconstitutional as applied to same-sex couples lawfully married in Massachusetts (Massachusetts v. U.S. Dept’ of Health and Human Services, about which I commented a few weeks ago).









Posted 1:59 PM by Linda McClain [link]

The Puzzle of Political Faith

JB

My latest article, The Distribution of Political Faith, is now available on SSRN.

This article is part of a symposium on my 2011 book Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press), and that also celebrated the republication of Sanford Levinson's Constitutional Faith (Princeton University Press 1989).

Faith in the Constitution is a key aspect of both books. I argue that for the constitutional project as a whole to be legitimate, people must believe that it is sufficiently worthy of their respect to justify the State’s coercion of themselves and others. And because for many people the Constitution-in-practice is not currently worthy of respect, people must have faith that, despite its current imperfections, it can become so over time. Thus, at least for constitutional dissenters, the legitimacy of an admittedly imperfect constitution depends on faith that current injustices in how it is interpreted and applied will eventually be corrected.

Sandy, by contrast, has given up faith in the Constitution. He believes that we should hold a new constitutional convention.

The dispute between us would seem to be a simple one: whether we should continue to have faith in our Constitution. But the more one considers the notion of political faith, the more one discovers that it is not a simple concept at all, and this essay explains why. Here is the abstract:

This essay, written for a symposium on Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press 2011), focuses on one of the book's central themes: the connection between political legitimacy and political faith. Political faith is an especially complicated concept, and the essay describes some of its complications.

First, people do not simply possess or lack faith; rather they have a distribution or economy of faith and lack of faith, trust and distrust, that is projected onto different features of their world. Changes in circumstances that shake their perceptions may alter this economy or distribution.

Second, the converse of political faith, political dread, may be as important as faith itself for some members of the political community, who accept the political system because they fear that the alternatives will be even worse. What we call "faith" may actually be a complex combination of hope and dread distributed onto different aspects of social and political life. And what we believe in or hope for may be uncannily connected to what we distrust or fear.

Finally, political faith always risks turning into political idolatry, and, whether we like it or not, the two phenomena are often deeply connected. Whatever we happen to believe in, and whatever distribution of political faith and dread, hope and fear we hold in our hearts, helps create our own distinctive risk of political idolatry. In politics, as in life itself, nothing is more fraught than faith, even as nothing is so necessary.

Posted 7:35 AM by JB [link]

On "The Spirit of Compromise"

Sandy Levinson

In my interview with Scott Horton, I noted that I had not yet read Amy Gutmann’s and Dennis Thompson’s new book The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It (Princeton University Press, 2012).  What I said in particular was

I haven’t yet read the Gutmann and Thompson book,. but I’m not sure, at the end of the day, that one can make very useful general arguments about compromise. All of us, presumably, recognize that there are occasions for drawing lines in the sand, even as we also must, unless we’re truly fanatics, recognize that politics requires a willingness to settle for significantly less than we might wish, not least in order to preserve social peace.

I have now read the book, and I would have answered the question differently, for one of the striking things about their book, written, of course, by two world-class political theorists, is the degree to which they seem to agree that it is difficult, perhaps impossible, to make “general arguments about compromise” in the sense of providing algorithms for when one should or should not compromise. Indeed, one of their major contributions, which has important ramifications for jurisprudence as well as politics, is a critique of theorists like Ronald Dworkin, who proffers a notion of “integrity” that depends on a strong notion of philosophic coherence—and a concomitant rejection of what he disdainfully calls “checkerboard compromises.”  (Indeed, one reason Dworkin basically disdains legislative decisionmaking and prefers a strong judiciary, identified by him as "the forum of principle," is that it is not subject to the same pressures to engage in "unprincipled," phillsophically incoherent, compromises.  “Integrity,” for Dworkin, rests on an assumption that American society (at least) is founded on a sufficiently “common ground” that all legislation can ultimately be tested against the degree to which it rests on this “common ground.” Guttmann and Thompson, correctly, I believe, describe us as a more ideologically divided society. They therefore argue in behalf of a notion of “classic compromise [that] depends on the willingness of all sides to sacrifice something to achieve a common good that improves on the status quo when common ground does not exist or cannot be found” (p. 202). One of their major foci is the Tax Reform Act of 1986, which, they argue, “as a whole was inconsistent with any single set of principles,” an attribute that in fact is “a sign of success” as a compromise (103).  "Incoherence" is therefore not necessarily the worst thing that can be said about a piece of important legislation.  The more important question is whether, all things considered, we are, as a society, better off with it, as against maintaining the status quo.

Read more »
Posted 4:35 PM by Sandy Levinson [link] (38) comments

Foreign Affairs and Constitutional Law

Gerard N. Magliocca

Three years ago, I published a paper that tried to put George W. Bush's presidency into some historical context.  In thinking about how the September 11, 2001 attacks influenced his Administration, I pointed out that one of the deepest flaws in American constitutional theory is its parochialism.  Most of us (myself included) tend to view our legal evolution as occurring within a closed system shaped by Supreme Court cases, domestic social movements, and the actions of officials that we choose.

Historically, of course, this is not so. The Napoleonic Wars/French Revolution were crucial to the interpretation of the Constitution (consider the Alien and Sedition Acts, the Louisiana Purchase, or the sack of Washington by the British)  Revulsion toward Nazi Germany was a key factor in the decline of racism in the United States, and the Cold War was a powerful force in jurisprudence after World War II.

Why does this matter?  It matters because the 2012 presidential election may be decided in Europe.  In one sense, this is obvious. An implosion of the Euro (Greece defaults, Spain can't save its banks) could drag our economy down. But something deeper is going on. Europe is fast becoming a metaphor for the role of government.  Some people look at Europe and conclude that its problems are the result of:  (1) too much debt; and (2) bloated welfare states.  Of course, you can also make a good case that its problems are the result of: (1) too much austerity; and (2) an Articles-of-Confederation style constitution that is totally unworkable.  The point is that a European collapse may be one of those pivotal moments that shape how we think about the future, and, if so, one or the other interpretation will become conventional wisdom.



Posted 2:59 PM by Gerard N. Magliocca [link] (18) comments

"Brutus is an honorable man"

Mark Tushnet

From today's Supreme Court decision in Parker v. Matthews, summarily reversing the Sixth Circuit in a death penalty habeas corpus case:

[T]he Sixth Circuit held that certain remarks made by the prosecutor during his closing argument constituted a denial of due process.... by suggesting that [the defendant] had colluded with his lawyer ... and [his expert witness] to manufacture an extreme emotional disturbance defense. But although the Sixth Circuit quoted a lengthy section of the prosecutor's closing argument which could be understood as raising a charge of collusion, the court did not address the prosecutor's statement that immediately followed the quoted portion and expressly disavowed any suggestion of collusion:
     "And that's not to say that [the lawyer] is unethical. Not at all. He is entitled to the best defense he can get,   but that's the only defense he has, what the doctor has to say, and that's not to say that the doctor gets on the stand and perjures himself. He's telling you the truth. He wouldn't perjure himself for anything. He's telling you the truth, Ladies and Gentlemen."

The heading on this post is not to say that the Court's ultimate legal analysis was incorrect, but only that it's analysis of the prosecutor's rhetoric was overly simple.
Posted 1:38 PM by Mark Tushnet [link]

Supreme Court to Gitmo Detainees: Drop Dead

Gerard N. Magliocca

Not quite, but pretty much.  The Court has apparently decided to outsource the resolution of these habeas petitions to the DC Circuit, which is (depending on your point of view) either ignoring Boumediene or giving that opinion a very narrow reading.  All of the cert. petitions from detainees were denied today.

The President, by the way, also doesn't talk about closing Gitmo anymore. That was so 2008.
Posted 12:01 PM by Gerard N. Magliocca [link]

China on Human Rights in the United States

Jason Mazzone

I have just returned from three weeks in China, where I was teaching a course on Comparative Constitutional Law. During the time of my visit, the U.S. State Department issued its annual Country Reports for Human Rights Practices. China's record this year is described as deteriorating. The day after the State Department released its reports, China's State Council issued its own report on The Human Rights Record of the United States. While reading China's report, I found myself focusing less on the predictable examples of human rights abuses in the United States than on the sources the Chinese government relied upon to make its case that the U.S. record is "dismal," "tarnished," and "grave." The New York Times and The Huffington Post get a lot of credit.

I had wanted to post this link to the State Council's report as soon as it was released. That wasn't possible, however. Although in its report the State Council criticizes the United States for "impos[ing] fairly strict restrictions on the Internet," the Chinese government blocks access to blogger (among many other websites).
Posted 6:28 PM by Jason Mazzone [link] (2) comments

Sanford Levinson talks about Framed

JB

Scott Horton interviews Sandy about his new book, Framed, at Harper's Magazine online.
Posted 12:20 PM by JB [link]

Justice Chase's Opinion in Calder v. Bull

Guest Blogger

Nathan Chapman and Michael McConnell

We appreciate the lively discussion of Justice Chase’s opinion in Calder v. Bull, which has ensued from our "Essay" on Due Process as Separation of Powers, and has spread to various legal blogs, including Balkinization (Mark Tushnet), The Originalism Blog (Kurt Lash), and The Library of Law and Liberty Blog (Mike Rappaport). In the Essay we argue that the original understanding of due process of law was bound up with the original understanding of the role of the legislature, executive, and courts. In particular we focus on the separation of the judicial power from the legislature, and on the limited nature of executive power with respect to deprivations of rights. Calder is relevant because it involved legislative performance of a judicial function, and because Justice Samuel Chase’s opinion is often cited as an example of early judicial enforcement of unwritten constitutional principles.
On pages 1745-46, we quote Chase's famous passage at 388 and the first sentence of the second paragraph at 394. We conclude that Chase's point was that "the legislature should not be 'presumed' to act contrary to these principles" [citing Lash's an article by Kurt Lash that offers a similar interpretation of the opinion]. By "these principles" we refer to the principles governing a social compact Chase lists on 388. Framed by the larger thesis of our paper, we link two notions. First, based on social compact principles, it should not be presumed that the people have given legislatures the power to act like courts. Second, based on those same principles, it should not be presumed that a legislature has acted like a court. Applying the Blackstonian equitable interpretive method, Chase could have–and we think, in light of his full opinion, most likely did–reach his result without holding that unstated unwritten principles of the U.S. Constitution trump explicit state legislation. This is what Mike Rappaport labels the third possible interpretation of the opinion. Kurt Lash and Mike Rappaport have both quoted the passage from 388, and we need not repeat it. Here is the passage we cite from 394; we quoted the part in bold.

It was further urged, that if the [constitutional] provision [prohibiting ex post facto laws] does not extend to prohibit the making any law after a fact, then all choses in action; all lands by Devise; all personal property by bequest, or distribution; by Elegit; by execution; by judgments, particularly on torts; will be unprotected from the legislative power of the states; rights vested may be divested at the will and pleasure of the state legislatures; and, therefore, that the true construction and meaning of the prohibition is, that the states pass no law to deprive a citizen of any right vested in him by existing laws. It is not to be presumed, that the federal or state legislatures will pass laws to deprive citizens of rights vested in them by existing laws; unless for the benefit of the whole community; and on making full satisfaction. The restraint against making any ex post facto laws was not considered, by the framers of the constitution, as extending to prohibit the depriving a citizen even of a vested right to property; or the provision, "that private property should not be taken for PUBLIC use, without just compensation," was unnecessary.

Chase’s reference at 388 and 394 to a “presumption” that the people will not vest legislatures with certain power and that legislatures will not exercise such power appears to us to employ the then-familiar method of Blackstonian equitable interpretation, which had been used by American courts even before there was a written federal constitution. Equitable interpretation involved departure from the plain meaning of a statute in a particular case, on the presumption that the legislature did not intend to violate basic norms of the rule of law – unless the language of the statute was explicit and the legislative intent evident. It was a bit like the modern practice of constitutional avoidance.

To be sure, in Blackstone there was only one step in the presumption: that of statutory construction. Chase used the presumption both with respect to the people vesting the legislature with power and also with the legislature exercising it. But it comes down to the same thing: narrowly construing state laws in accordance with the charitable presumption that the legislators did not intend to violate basic norms of the rule of law. The only difference is that Blackstone was operating in a unitary system, applying principles of British law to British statutes, while Chase was operating in a federal system, applying principles of federal law to a Connecticut statute. Perhaps Mark Tushnet is correct that we should have been more explicit in connecting the dots between Chases’s two uses of the presumption, but we thought (and still think) the connection is clear enough. The underlying point is unaffected: Chase used underlying legal principles to equitably interpret the Connecticut law, presuming Connecticut’s legislators (both the people and their representatives) not to have intended the legislature to act like a court. That said, we do not deny that Chase’s opinion is plausibly subject to different interpretations. The opinion is a textbook example of opaque, muddy, non sequitur-riddled judicial writing.

We would like to assert one point of personal privilege in this discussion, however: to absolve the Yale Law Journal editors of any charge that they submitted to an exercise of what Mark Tushnet calls “authorial power” in this matter. We did not assert authorial power, and the editors did not succumb to it. If there was any error in our discussion of Calder (and we are not persuaded there was) it belongs to the authors alone.

Nathan Chapman is Executive Director of the Stanford Constitutional Law Center. You can reach him by e-mail at nathan.chapman@law.stanford.edu.

Michael McConnell is Richard and Frances Mallery Professor of Law and Director of the Stanford Constitutional Law Center. You can reach him by e-mail at mcconnell@law.stanford.edu
Posted 12:11 PM by Guest Blogger [link]

Ken Mack on Why History Matters to Scholarship on Law and Social Change

Mary L. Dudziak

Ken Mack has published a review of Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement, setting the book in the context of scholarship on civil rights and social change in the last two decades. It appears in the Harvard Law Review, Vol. 125, No. 4, p. 1018, 2012.  Mack's review is essential reading.  More than an examination of one important book, he takes up the relationship between history and political science as it relates to law and social change.  The abstract is very brief, so here's the opening paragraph:

We live in chastened times. A generation ago, young legal academics often desired to explain how the Supreme Court could be an effective participant in the social controversies of the day, and young liberal lawyers believed that public impact litigation could be an effective strategy for social reform. The most visible evidence for that optimism was the NAACP’s desegregation litigation that led to the Court’s decision in Brown v. Board of Education, which was conventionally seen as the opening act of the civil rights movement. At present, such dreams seem hopelessly utopian. Ambitious legal scholars now make their careers by explaining how, as a descriptive or normative matter,one should not expect courts to be agents of social change. Conservative lawyers, rather than liberals, spend decades developing strategies to effect public policy through the judiciary. Nominees to the Supreme Court routinely express the requisite reverence for the Court’s decision in Brown, and the equally requisite aversion to the judicial role that people once thought the decision symbolized. Historians, too, who once celebrated the NAACP’s school desegregation litigation as a guidepost on the road to racial equality, marked the half-century anniversary of the decision in 2004 with more regret than celebration. Some even lamented the disappearance of the black autonomy that is thought to have existed in a segregated society. In our own time, it has become common to rely on a familiar trope of social thought to explain these changing opinions on the role of law in American life. We are social realists now, the argument goes, and have left behind the liberal idealism of an earlier age. In Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement, Professor Tomiko Brown-Nagin steps into this contentious territory to show what legal history can contribute to a field where academic writing and political culture seem to have reached a confluence. She uses the local story of the movement in Atlanta to challenge what is fast becoming the received wisdom about an era whose history has become a touchstone for a much larger set of debates about the role of law in American life.

I've heard history derided as simply "one damn thing after another," and lacking clear policy implications of more predictive social science work.  Mack makes clear that careful historical works like Brown-Nagin's are essential for understanding the phenomena that social scientists are attempting to study.  In scholarship questioning the role of courts in social change, he writes:

Despite its historical orientation, this particular school of thought has focused more on the question of what the Court can and cannot do as a general matter than on the more contextual question of how blacks and whites actually responded to the Court, and engaged with law more generally, during the civil rights era. The first of these questions is likely to prompt serious interest from political scientists and scholars of constitutional law, while the second is of more interest to historians. That is, a political scientist might ask a question like this: when and how can the Supreme Court be an effective proponent of social change? A historian, by contrast, would ask: how did blacks and whites respond to a world in which Brown had been decided? Historians are committed to explaining what happened in a particular context, while many political scientists are comfortable explaining trans-historical phenomena. This distinction between history and political science can be fuzzy around the edges, particularly for someone like Klarman who can write with considerable historical detail.

On questions like whether Brown had an impact on the Montgomery Bus Boycott, for example, "political scientists, and their critics, have argued from a series of predetermined positions on law and social change, and have often mobilized historical evidence with...predetermined positions in view."  As a result, "with the exception of a few notable case studies, we still lack a true history of law and social movements during the post-Brown era. Such a history would present an actual account of the interactions between law, direct action movements, and southern white reaction in the mid-1950s. That is exactly what Brown-Nagin attempts to do."  Download the rest here. 

Cross-posted from the Legal History Blog.
Posted 1:40 AM by Mary L. Dudziak [link]

NALP 2011 Report: "Worst Job Market Yet"; ABA: Rapid Increase in Law Graduate Debt

Brian Tamanaha

NALP's recently released report on the class of 2011 is sobering. Key stat: only 60% (among graduates whose job status was known!) landed full-time jobs as lawyers nine months after graduation, and some of these jobs were temporary.

Meanwhile, ABA figures on the average law school debt of the 2011 class show a dramatic increase from the year before. Among graduates of private law schools, average debt was $124,950 ($106,249 in 2010); at public schools it was $75,728 ($69,687 in 2010). (These numbers do not include undergraduate debt.)
Posted 5:31 PM by Brian Tamanaha [link] (3) comments

Blunt Talk from a Reader to the Law Professoriate

Brian Tamanaha

Numerous readers responded to my op-ed in the NYTimes last week on the broken economics of legal education, but none more on point than a hand-written letter I received that bears reprinting in full:

Dear Professor Tamanaha,

Why are you asking "How did we get into this mess?" at this late date? Where have you been and what steps have you taken to avoid our collision with the iceberg you describe in The New York Times of June 1st? To what end does "professorial" status point? You professors, you lawyers, you faculty members control the legal industry and its ancillaries. If something has gone tragically wrong in the law school business, how did we lay readers come to be on the hook with the professional malefactors? Smile when you say "we."

You seem, to all appearances, genuinely appalled at the mudslide engulfing us. But the heart of the matter is this: You all were prepared to risk a debacle from Day One. The law schools were perfectly happy to rake in more revenue. The professoriate was happy to receive its cut of the breath-taking increase in revenue. The student customers were happy at the prospect of collecting the noble credential even though they had to out-Scarlett Scarlett. Who cared if the same evil spirit that stalked the McMansion business filtered into admissions offices?

The measures you sketch in advising remedial action smack of RMS "Titanic" deck-chair rearrangement. Got excess capacity from now to 2050? Start choosing straws now to see which law degree factories are going to shut down for good. Tell your gatekeepers to start telling the mob that the jig is up. Make the end quick, cruel, painful and permanent. If it hurts badly it must be a splendid remedy.

Let me add my own very "street-urchin" take on a solution to accompany my harsh words. Let the pre-law take two years and the legal training take two years. There is no reason at today's prices to pay for seven years when four will do very nicely. Let "specialization" commence with the first job out of school. It's like recovering from alcoholism. Stop your whining and bleating and excusing. Admit you're not sober.

XXXXXXX
Posted 4:35 PM by Brian Tamanaha [link] (3) comments

Omnibus Bills and Judicial Review

Gerard N. Magliocca

The pending decision about the Affordable Care Act got me to thinking about how Congress or a state legislature could make it more difficult for its statutes to be invalidated on constitutional grounds.  Perhaps somebody else has said what I'm going to say (that's a hazard of blogging), but here goes.

In the absence of a line-item veto, legislatures can coerce the executive to sign a controversial provision into law by putting it into an omnibus bill that contains lots of popular things.  In effect, a dare is made that a President or a Governor would rather swallow one bad part rather than block many good parts.  This dare does not always work, of course, and legislation structured in this way cannot always pass, but omnibus bills do tilt the balance of power in favor of popular assemblies.

Why can't the same be done with respect to courts?  Suppose Congress knows that a certain provision (say about campaign finance) will be constitutionally suspect.  They could bundle it with lots of unrelated matters and insert a non-severability clause providing that: "If any portion of this legislation is found unconstitutional by the Supreme Court, then every other portion becomes inoperative." In that case, the SG would solemnly tell the Justices that striking down the contested provision would deprive orphans of milk, stop the construction of a dam in Utah, and so on.  This doesn't preclude the Court from acting.  It just makes it harder.

As far as I can see, there is nothing unconstitutional about this tactic at the federal level.  (At the state constitutional level there may be impediments to omnibus legislation.)  There are political checks on the abuse of this sweeping authority by Congress.  Many members will not want to risk their pet projects by tying them to an uncertain constitutional fight.  Moreover, you need the President (and perhaps 60 senators) to go along.  If you jump those hurdles, though, then the Court would face an all-or-nothing choice in constitutional litigation.  (An as-applied challenge might not come within a given non-severability clause, but that would depend on how the legislation was drafted.)

In the context of health care, this framing of the issue might have made a big difference.  There may be five votes to strike down the individual mandate. It's less likely that there are five votes to strike down the entire 2,000-plus-page statute.  If the Court's only choice was between this and upholding the individual mandate, the result might be different from what we will see in a few weeks.
Posted 9:46 PM by Gerard N. Magliocca [link] (18) comments

Lawrence O'Donnell

Sandy Levinson

Though nothing is certain until it happens, I'm scheduled to be the last guest on this evening's Lawrence O'Donnell program on MSNBC from 10:45-
Posted 7:23 PM by Sandy Levinson [link]